Pardo Aguas (Migration)

[2020] AATA 4062

Pardo Aguas (Migration) [2020] AATA 4062 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cesar Alejandro Pardo Aguas

CASE NUMBER:  1901088

HOME AFFAIRS REFERENCE(S):          BCC2018/3104876

MEMBER:Denise Connolly

DATE:28 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 28 August 2020 at 1:11pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – qualification was not closely related to the nominated occupation –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.222

CASES
Talha v MIBP [2015] FCAFC 115

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 January 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 August 2018. Visa Class VC contains Subclass 485. The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of the Regulations because he was not satisfied the Advanced Diploma of Leadership and Management used by the applicant to satisfy the Australian study requirement is closely related to his nominated skilled occupation, Computer Network and Systems Engineer (ANZSCO 263111).

4. The applicant appeared before the Tribunal by conference telephone on 30 July 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of the Regulations. It requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation. The issue in the present case is whether the applicant meets that requirement.

7. When making the visa application, the applicant stated that he completed a Diploma and an Advanced Diploma in Leadership and Management at Australian Pacific College, Brisbane in the period 18 July 2016 to 1 July 2018. He already had an overseas qualification, a Bachelor of Systems Engineering, awarded by the University of Colombia in September 2010.

8. The applicant provided a Record of Results from the Australian Pacific College confirming his completion of the Diploma and Advanced Diploma, as claimed.

9. The applicant also provided his skills assessment dated 2 August 2018 undertaken by the Australian Computer Society recording that his skills are suitable for the nominated occupation Computer Network and Systems Engineer. The skills assessment advised that the ACS considered his Bachelor in Systems Engineering awarded by the University of Columbia to be a suitable qualification for the nominated occupation. The skills assessment also refers to his relevant employment experience. However it does not refer to the Diploma and Advanced Diploma of Leadership and Management.

10. The applicant provided to the Department a statement dated 10 October 2018 setting out why he believes the Diploma and Advanced Diploma of Leadership and Management are relevant. He explained that, despite working in different organisations, he lacked skills in leadership and management and this was a disadvantage when it came to promotion. He indicated he was offered an IT manager position, as long as he had advanced studies in management and leadership.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate compared the applicant’s Advanced Diploma qualification to the description of the nominated occupation as set out in ANZSCO as follows:

    plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault finding services for network problems.

12. The delegate considered the applicant’s Record of Results and formed the view that the skill set underpinning the Advanced Diploma of Leadership and Management is not directly transferable to the applicant’s nominated skilled occupation. He noted that the ANZSCO description for the occupation does not indicate leadership and management are relevant to the occupation. He found that leadership and management skills are not required for the nominated skilled occupation. He was not satisfied that the applicant’s Advanced Diploma of Leadership and Management is closely related to the nominated skilled occupation. He noted that the applicant had not completed another qualification in order to satisfy the Australian study requirement in the period of six months immediately before the day the application was made. He was not satisfied therefore that the applicant met cl.485.222.

13. The applicant has provided to the Tribunal a written submission arguing why his Diploma and Advanced Diploma of Leadership and Management are closely related to the nominated occupation. He compared some units of his completed courses with the tasks described in the ANZSCO Minor Group 263 ICT Network and Support Professionals. Essentially he seeks to rely on individual units of his Diploma and Advanced Diploma relating to his responsibilities as a leader of a technology team. He refers to the need for IT and technology managers to have leadership skills, to influence people and to have organisational awareness. He argues that they need to be able to direct people and activities towards common goals and objectives. He refers to the need to be able to budget and manage financial plans and argues that IT engineers need appropriate skills in these areas to avoid wasting resources. He also argues that there is core work that every professional should develop to be more competitive. He argues that the programs he studied provide the skills and knowledge necessary to be competitive in the Australian labour market. He believes that his studies in Australia have enabled him to find a professional job as an ITC engineer. He currently works as the ITC support manager for Vocational Education Pty Ltd.

14. At the hearing the Tribunal explained the requirements of the law. The following is a summary of the oral evidence provided by the applicant.

15. The applicant explained that ACS did not consider his Diploma and Advanced Diploma when assessing his skills for the nominated skilled occupation because he made his application to ACS prior to the completion of the Advanced Diploma course.

16. The Tribunal raised with the applicant its concern that the Diploma and Advanced Diploma of Leadership and Management courses appeared to be generic in nature and not designed to be applicable in an ICT environment. It indicated it may not be satisfied those qualifications are closely related to the nominated skilled occupation. The applicant indicated that he understood this but he wanted the Tribunal to take into account the ANZSCO description for the relevant Major Group 2 Professionals.

17. The Tribunal noted that the relevant ANZSCO descriptions indicate that the nominated occupation is technical in nature requiring computer network professionals to analyse, plan, design, install, maintain and monitor ICT systems. It explained to the applicant that, considered overall, it may not be satisfied that his Diploma and Advanced Diploma in Leadership and Management are closely related to the tasks performed by an ICT professional such as a Computer Network and Systems Engineer. The applicant indicated that he wanted to be more competitive and go further in the global market, and financial and staff management knowledge are crucial for advancement in the industry. He indicated that he did the courses to increase his capacity in the labour market. The Tribunal explained that it was not looking at whether the qualifications will advance his career. It explained that it was looking at whether the qualifications are closely related to the nominated occupation which is not a management occupation. The applicant indicated that the units he undertook in the courses are directly related to the tasks associated with leadership and management as described in Major Group 2 Professionals.

18. The applicant indicated that he now has a job as a Chief IT Support Manager where he applies the skills developed in the Diploma and Advanced Diploma. He believes if he had not taken those courses he would not have been able to get this job. He indicated he works in an IT team of three people. He manages one other person. It is a start-up business and he is employed casually on a part-time basis.

19. The Tribunal asked the applicant if he had any other evidence he wished to have taken into account. He indicated that, because of Covid19, Australia’s borders are closed and so it needs to maintain its current skilled workforce. The Tribunal explained that this may not be a relevant factor.

20. The Tribunal has considered the relevant ANZSCO descriptions which state in part as follows:

    MAJOR GROUP 2 PROFESSIONALS

    
    PROFESSIONALS perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare.
    …

    Tasks Include:

    ocommunicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts

    oanalysing, planning, developing and implementing programs and solutions to resolve business and economic problems

    oproviding services in financial accounting, human resource development, publicity and marketing, and the efficient operation of organisations

    oflying aircraft, and controlling and directing the operation of ships, boats and marine equipment

    oconducting and analysing research to extend the body of knowledge in the field of the sciences and developing techniques to apply this knowledge

    odesigning products, buildings and other physical structures, and engineering systems

    oresearching and developing curricula, and teaching students in a range of educational settings

    odesigning, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed, and disseminated

    oidentifying, treating, and advising on, health, social, and personal issues

    oadvising clients on legal matters.

    SUB-MAJOR GROUP 26 ICT PROFESSIONALS

    
    ICT PROFESSIONALS perform analytical, conceptual and practical tasks which support the efficient and secure provision of information and communication technology (ICT) services to government, commercial and industrial organisations, and individuals.

    …

    
    Tasks Include:

    odeveloping and documenting strategies, policies and procedures relating to the use of ICT technologies and services

    oplanning, analysing, designing, developing, implementing, testing, operating, maintaining and assisting with the use of technologies and services that enable information, such as voice, image and data, to be accessed, networked, stored, processed, transformed, manipulated and transmitted over a variety of media

    oassessing the performance of ICT technologies and services, identifying limitations and inefficiencies, and recommending and implementing solutions

    oproviding troubleshooting and service support in diagnosing, resolving and correcting problems associated with the use of ICT technologies and service

    MINOR GROUP 263 ICT NETWORK AND SUPPORT PROFESSIONALS

    
    ICT NETWORK AND SUPPORT PROFESSIONALS research, analyse, plan, design, install, monitor and maintain ICT systems to support the business needs of organisations and individuals.

    …

    
    Tasks Include:

    oplanning, designing, developing, configuring and commissioning networks and systems

    oanalysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance

    otroubleshooting and diagnosing network and system problems, and determining the most appropriate means of resolving problems and issues to improve system performance

    omonitoring the overall performance of systems to assess the need for updates, upgrades, enhancements, preventive maintenance and new systems, and recommending options for upgrading and improving the performance of systems

    oscheduling and conducting quality audit inspections

    UNIT GROUP 2631 COMPUTER NETWORK PROFESSIONALS

    
    COMPUTER NETWORK PROFESSIONALS research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support.

    …

    
    Tasks Include:

    oanalysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems

    oresearching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance

    oassessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems

    oproviding specialist skills in supporting and troubleshooting network problems and emergencies

    oinstalling, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations

    oproviding network programming in support of specific business needs and requirements

    opreparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions

    omonitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance

    
    …

    
    263111 COMPUTER NETWORK AND SYSTEMS ENGINEER

    
    Plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is the qualification ‘closely related’ to the nominated occupation?

21. Clause 485.222 requires the qualifications used to satisfy the Australian study are closely related to the applicant’s nominated skilled occupation, Computer Network and Systems Engineer. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I).

22. The applicant applied for the visa on 17 August 2018 so he relies on the Advanced Diploma of Leadership and Management to satisfy the Australian study requirement as it is the only qualification he completed in the period of 6 months immediately before the day the application was made. The Tribunal has also considered whether the applicant’s other Australian study, the Diploma of Leadership and Management, is closely related to the nominated skilled occupation.

23. The applicant has requested that the Tribunal consider the ANZSCO Major Group 2 Professionals description. Having regard to the relevant case law the Tribunal agrees the ANZSCO Code needs to be read as a whole, with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation (Talha v MIBP [2015] FCAFC 115). Having regard to the structure of the ANZSCO Code, the Tribunal must have regard to all potentially relevant tasks which are applicable to the nominated occupation and not simply confine itself to the relatively narrow statement of tasks in the relevant unit group or at the lower level of the specific occupation. However in conducting the evaluative exercise it is critical that the whole of the Australian qualification be compared with the whole of the applicant’s nominated occupation.

24. Only certain tasks in Major Group 2 Professionals are relevant to the nominated occupation as that description covers a range of professions in various fields. The Tribunal is of the view the tasks relating to information and communication technology are relevant and it has considered those in its evaluative assessment of whether the applicant’s qualifications used to satisfy the Australian study are closely related to the applicant’s nominated skilled occupation.

25. The applicant has essentially argued that he undertook the Diploma and Advanced Diploma in Australia because he lacked skills in leadership and management and this was a disadvantage when it came to promotion. He believes the courses are closely related because they relate to his responsibilities as a technology team leader. He argues that IT managers need leadership skills to influence and direct people.  The Tribunal accepts that leadership and management may assist the applicant to progress in his career but having regard to the ANZSCO descriptions set out above it is not satisfied that leadership and management skills are requirements for the nominated occupation. There may be other related occupations that require such skills, such as ICT Managers, but the Tribunal is required to consider the relationship between the qualifications and the nominated occupation, not the applicant’s aspirational occupation. According to the ANZSCO descriptions management and leadership do not appear to be significant tasks for the nominated occupation. Essentially the tasks of the nominated occupation are technical in nature involved in planning, designing, developing, implementing, configuring, testing, optimising and maintaining technologies. While there might be team leadership responsibility for the nominated occupation the Tribunal is of the view, having considered the relevant ANZSCO descriptions, that this is not a significant task for the occupation. The Tribunal also takes into account the applicant’s submission that he needs to be able to budget and manage financial plans, however it is not satisfied these are significant tasks for the nominated occupation.

26. The applicant has argued that the skills developed by completing the qualifications has allowed him to be competitive in the Australian and global labour markets. The Tribunal is not satisfied that it needs to consider whether the qualifications will provide for career advancement. The Tribunal must consider the relationship between the qualifications and the nominated occupation, not the applicant’s aspirational plans.

27. The Tribunal also notes the Diploma and Advanced Diploma completed by the applicant are broad qualifications which develop generic management and leadership skills not specifically designed for an ICT professional. It is of the view the skills acquired as a result of completing those courses would not necessarily assist the applicant in his highly technical nominated occupation, including in any team leadership of an ICT team.

1. The applicant has also argued that Australia needs to maintain its skilled workforce. As it indicated at the hearing, this is not a relevant factor when considering whether the applicant qualifications used to satisfy the Australian study requirement are closely related to the nominated skilled occupation.

2. Having considered all the applicant’s claims and evidence, when comparing the whole of the qualifications with the whole of his nominated occupation, the Tribunal is not satisfied that they are closely related. It is not satisfied the Diploma and Advanced Diploma of Leadership and Management are closely related to the nominated skilled occupation of Computer Network and Systems Engineer. Accordingly the applicant does not meet cl.485.222.

3. On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

   Denise Connolly
   Member