Pasikanti (Migration)

[2020] AATA 6082

Pasikanti (Migration) [2020] AATA 6082 (22 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shashank Pasikanti

CASE NUMBER:  1821119

HOME AFFAIRS REFERENCE(S):          BCC2018/3949523

MEMBER:Ian Berry

DATE:22 December 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 22 December 2020 at 10:54am

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

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03 Schedule 2, cls 485.221, 485.222

Education Services for Overseas Students Act 2000

CASES

MIBP v Dhillon (2014) 227 FCR 525
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Talha v MIBP [2015] 235 FCR 100

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 2 July 2018 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 26 June 2018. Visa Class VC contains Subclass 485. The criteria for the grant of 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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the applicant’s nominated occupation was Computer Network and Systems Engineer (ANZSCO 263111), was not closely related to the qualifications Diploma of Leadership and Management or the Advanced Diploma of Leadership and Management (collectively called the diplomas).

4. The applicant appeared before the Tribunal on 9 June 2020 and 12 October 2020 to give evidence and present arguments. The Tribunal received oral evidence only from the applicant.  The Tribunal exercised its discretion to hold the hearing by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

5. The applicant was represented in relation to the review by his registered migration agent Mr J.R. Vadlakonda MARN 0957482. The representative by phone attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue is whether the applicant meets those requirements.

   Are the elements of the Australian study requirement?

8. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

   ·that are registered courses; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·for which all instruction was conducted in English; and

   ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

9. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (IMMI 09/040).

10. The applicant’s study consisted of the following qualifications: -

    a.Master of Computing Technology degree (by coursework) (Masters degree), at the University of Southern Queensland from 23 June 2013 to completion on 25 November 2015. Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) a duration of 104 academic weeks.

    b.Diploma of Leadership and Management (Diploma), at Queensland international Institute, from 20 March 2016 and completed on 9 January 2017. CRICOS duration of 46 academic weeks.

    c.Advanced Diploma of Leadership and Management (Advanced Diploma), at the Queensland International Institute, from 16 January 2017 and completed on 3 May 2018. CRICOS duration of 52 academic weeks.

11. The applicant completed the Advanced Diploma on 3 May 2018 within the 6 months ending the day before the lodgement of his visa application (13 March 2018).

12. The Tribunal is satisfied that:

    a.The courses completed by the applicant are registered courses.

    b.The courses were completed in a total of at least 16 Calendar months (25 November 2015 to 3 May 2018).

    c.As a result of at least 92 academic weeks of study.

    d.The courses were conducted in English.

    e.He held a student visa while studying, authorising the applicant to study.

13. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

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

14. Notwithstanding the applicant having completed the Australian study requirement as referred to in cl. 485.221.  In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. 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). The relevant instrument for this purpose is Legislative Instrument IMMI 18/007.

15. The words ‘closely related’ has been considered in the decisions of MIBP v  Dhillon (2014) 227 FCR 525 (Dhillon) and Talha v MIBP (2015) FCAFC 115 (Talha) as well as in Constantino v MIBP (2013) FCA 1301 (Constantino).

    ·These decisions have provided guidance to the Tribunal, in determining whether the qualification is closely related to the applicant’s nominated skilled occupation:

    ·The words closely related are not defined in the legislation. These words require and call attention to the connection between two things, and although the words closely related do not require an exact correspondence (Dhillon), the relationship must be more than merely complimentary (Constantino).

    ·In making the assessment of closely related, the nature of the nominated occupation must be determined by reference to the ‘Australian and New Zealand Standard Classification of Occupations’ (ANZSCO). ANZSCO 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). 

    ·Appropriately, objectivity is required when considering the relationship of the applicant’s qualification (or qualifications) to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications or usefulness of the qualifications to the nominated occupation.  (Chawdhury - v - MIAC (2011) FMCA 275, Kabir - v - MIAC (2010) FMCA 577 and Shafiuzzaman - v - MIAC (2011) FMCA 874.

16. It is ultimately a matter for the decision-maker to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation (Talha) and, in carrying out this evaluation, it is critical for the whole of the Australian studies be compared with the whole of the nominated occupation. (Talha, Dhillon and Constantino).

17. Talha v MIBP [2015] 235 FCR 100 at [53] had this to say about the close relationship of the nominated skilled occupation and the applicant’s Australian studies:

    53       Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal. (Emphasis added).

18. In this case, the applicant nominated the occupation of Computer Network & Systems Engineer (ANZSCO 263111) which is a skilled occupation specified in IMMI 18/007.

19. The Tribunal invited the applicant and his migration agent to comment upon the tasks in ANZSCO as compared to the units of study in the Advanced Diploma.  The applicant considers that each of the tasks involved a human element in the applicant needing leadership and management to be able to converse with non-engineers.  The Tribunal explained to the applicant and his representative that not at any level of task does it require the applicant to converse with anybody.  Only Unit Group 2631 of ANZSCO is set out below.

20. The nominated occupation and the Unit Group 2631 ANZSCO level states that ‘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’.  The tasks of computer network professionals include the following: -

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

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

    ·Assessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems.

    ·Providing specialist skills in supporting and troubleshooting network problems and emergencies.

    ·Installing, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations.

    ·Providing network programming in support of specific business needs and requirements.

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

    ·Monitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance.

21. The nominated occupation Computer Network and Systems Engineer (ANZSCO 263111) specifically provides:-

    “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”

22. The applicant’s representative contended that the leadership and management diplomas have a special place with the applicant’s position.  The applicant needs to be in a position where he can converse with and explain to those to whom he reports, about what he is doing.

23. Carefully considering all the ANZSCO levels, the nominated occupation does not have any task involving leadership or managerial skills. The tasks do not include any interaction with personnel.  The diploma and advanced diploma qualifications are generic in the sense that they could apply to any occupation at any level. All occupations require, at a level of a business, both leadership and management. These courses are not closely related to the occupational level of this applicant’s qualification but in his quest for promotion. He may intend to move from his current occupation to that of a manager which probably require the skills of leadership and management. Those skills are not closely related to his nominated occupation.

24. The words “closely related” are not defined in the regulations.  It requires for a qualification to be closely related to their nominated occupation and does not require an exact connection between the nominated occupation and the tasks but does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, (26). The Tribunal has examined the tasks set out in ANZSCO including all its levels.

25. The applicant’s representative advances the following argument.  The Master of Computing Technology is accredited at the professional level by the Australian computer Society (ACS).  Through the Seoul Accord, which Australia, through the Australian Computer Society is a signatory.  All countries whose computer societies a signatory to the Seoul accord are officially recognised as a valid ‘information technology’ course.  The representative then proceeds to discuss the diploma credentials argues that there is a relationship between that the nominated occupation and management and leadership skills, through the  the Seoul accord and the Australian Computer Society.  The objects of the assessment by the Australian Computer Society does not align with the ANZSCO tasks (at all levels). The Tribunal does not accept that argument as it is not the proper test.  The Australian computer Society may have objectives beyond ANZSCO’s tasks. The test is for the applicant to find a close relationship between the nominated occupation and the hierarchical levels of ANZSCO. The Tribunal rejects the applicant’s argument.

26. As the applicant’s diploma and advanced diploma qualifications are not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

27. Based on 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

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

    Ian Berry
    Member