Pico Meneses (Migration)

[2020] AATA 6070

Pico Meneses (Migration) [2020] AATA 6070 (11 November 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Andrea Carolina Pico Meneses

CASE NUMBER:  1905169

DIBP REFERENCE(S):  BCC2018/5699731

COUNTRY OF REFERENCE:                   Colombia

MEMBER:Roslyn Smidt

DATE OF DECISION:  11 November 2020

DATE CORRIGENDUM

SIGNED:8 April 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

On page 1 of the Decision Record, it incorrectly reads that the date of the decision was 11 November 2010.

This was a typographical error. The date of the decision should read 11 November 2020.

Roslyn Smidt
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Andrea Carolina Pico Meneses

CASE NUMBER:  1905169

HOME AFFAIRS REFERENCE(S):          BCC2018/5699731

MEMBER:Roslyn Smidt

DATE:11 November 2010

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 11 November 2020 at 2:35  pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – occupation of Engineering Technologist – Australian study requirement – study closely related to the nominated skilled occupation – most recent studies in Program Management – tasks of larger grouping of engineering professionals including project management – core skills for engineering technologists – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222

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 13 February 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 18 December 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).

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222of Schedule 2 to the Regulations because the qualification she had completed in Australia in the six months prior to lodging the application was not closely related to her nominated occupation.

   Background

4. The applicant completed a Bachelor of Applied Science Degree in Colombia in 2014. She arrived in Australia on a student visa on 25 September 2014. She was recognised as an Engineering Technologist by Engineers Australia in 2014. She nominated Engineering Technologist as her skilled occupation in her application for a 485 visa.

5. While in Australia the applicant has completed several courses, including an Advanced. Diploma of Program Management at the Australian Pacific College which she completed in November 2018 after 12 months study.

6. The applicant has been employed as an ITS project engineer by SICE Pty Ltd since 10 December 2018. According to reference from her employer she is design lead of ITS subsystems on for the delivery of an Operations Management and Control Systems (OMCS) and Integrated OMCS (IOMCS) for on the WestConnex M4-M5 Link project. Reference from her employer state that the skills she obtained in Program Management and Leadership and Management have provided her with the necessary skills to perform this role, especially as it involves managing internal and external stakeholders to satisfy client requirements and planning, coordinating and monitoring the design packages program schedule.

   The relevant law

7. 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).

8. 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 in the present case is whether the applicant meets the latter requirement.

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

9. Clause 485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. In this case the only qualification which the applicant completed within six months of lodging her application is the Advanced. Diploma of Program Management awarded by Pacific College in November 2018. To meet this criterion this qualification must be closely related to her nominated skilled occupation of Engineering Technologist.

10. The words ‘closely related’ are not defined in the legislation. They do not require an exact correspondence.[1] However, the relationship must be more than merely complementary.[2] In making the assessment it is necessary to focus on the nominated occupation rather than on an applicant’s claimed or proposed occupation or career path. It has been held in this context that the decision maker is entitled to give substantial weight to the contents of the ANZSCO descriptions.[3] More recent authority suggests that the nature of the nominated occupation must be determined by reference to ANZSCO[4] and further, that 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,[5] in other words it is necessary to take account not only of the specific tasks generally performed by the relevant unit group, but the more general description of tasks in the higher groupings into which the nominated occupation falls.[6] 

    [1] MIBP v Dhillon (2014) 227 FCR 525 at [20]; see also Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [33] quoting with approval Prasad v MIAC [2012] FCA 591 (Logan J, 17 May 2012) at [33].

    [2] Uddin v MIAC [2010] FCA 1281 (North J, 8 November 2010) at [10]-[12] where North J rejected the argument that the Tribunal misunderstood the term ‘closely related’ by departing from what was then set out in PAM3. The Tribunal in that case found that the language of the regulation required a closer relationship than that suggested by the words ‘complementary’ or ‘useful’ as used in PAM3 at that time. This approach was followed in Prasad v MIAC [2012] FCA 591 (Logan J, 17 May 2012) (special leave refused: Prasad v MIAC [2013] HCASL 34) and approved in Constantino v MIBP [2013] FCA 1301 and MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Shafiuzzaman v MIAC [2011] FMCA 874 (Nicholls FM, 15 November 2011) at [37]-[38] and Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) at [13], upheld on appeal Manik v MIAC [2012] FCA 619 (Cowdroy J, 15 June 2012) at [19]-[20].

    [3] Manik v MIAC [2012] FMCA 149 (Smith FM, 28 February 2012) citing Shukla v MIAC [2010] FMCA 625 (Smith FM, 16 August 2010), Kabir v MIAC [2010] FMCA 577 (Scarlett FM, 3 September 2010) and Chawdhury v MIAC [2010] FMCA 275 (Raphael FM, 23 April 2010).

    [4] See Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015). The central question in this case was not whether the nominated occupation must necessarily be determined by reference to ANZSCO, but rather whether the Tribunal had incorrectly confined its consideration to the relevant ANZSCO occupation. However the central significance of the ANZSCO Code is implicit in the Court’s reasoning. See also Wang v MIMIA [2005] FCA 843 (Madgwick J, 8 June 2005), MIAC v Kamruzzaman [2009] FCA 1562 (Greenwood J, 23 December 2009) and Seema v MIAC (2012) 203 FCR 537 where the relevance of ASCO/ANZSCO was considered in the analogous context of whether the applicant’s employment is closely related to the nominated occupation.

    [5] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ) at [56].

    [6] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ) at [52]. The judgment examines the structure of the ANZSCO code in detail (at [17]-[23]).

11. It is ultimately a matter for the decision-maker to decide whether an applicant’s Australian studies are ‘closely related’ to the nominated skilled occupation.[7] In carrying out the evaluative exercise it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation.[8] The wording of that the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation, or some part of it.[9]

    [7] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [53].

    [8] Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015) at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [26].

    [9] Constantino v MIBP [2013] FCA 1301 (Jacobson J, 4 December 2013) at [27].

12. According to ANZSCO engineering technologists (233914) analyse and modify new and existing engineering technologies and apply them in the testing and implementation of engineering projects.

13. Engineering technologists belong to the larger grouping of other engineering professionals (Unit group 2339). This grouping includes engineering professionals not classified elsewhere. They have a level of skill commensurate with a Bachelor degree or higher qualification. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification

14. Engineering professionals in unit group 2339 belong to the minor group 233. According to ANZSCO engineering professionals in minor group 223 design, plan and organise the testing, construction, installation and maintenance of structures, machines and their components, and production systems and plants, and plan production schedules and work procedures to ensure engineering projects are undertaken efficiently and in a cost effective manner. Tasks which may be required of engineering professionals in minor group 233 include:

    ·planning and designing chemical process systems, civil engineering projects, electrical power equipment and facilities, electronic components used in computer and industrial applications, mechanical equipment and systems, mining and drilling operations, and other engineering projects

    ·drafting and interpreting specifications, drawings and plans, and determining construction methods

    ·supervising the construction of structures, water and gas supply and transportation systems, and the manufacture, installation, operation and maintenance of equipment, machines and plant

    ·organising and managing project labour and the delivery of materials, plant and equipment

    ·estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control

    ·resolving design and operational problems in the various fields of engineering through the application of engineering technology

15. The only qualification completed by the applicant in the six months immediately before she applied for a 485 visa was the Advanced. Diploma of Program Management which she obtained from the Australian Pacific College in November 2018. According to the evidence provided, this units studied in that course were:

    ·Manage benefits

    ·Develop Business Case

    ·Implement program governance

    ·Plan and Manage flexible workforce

    ·Enable program execution

    ·Manage program delivery

    ·Facilitate stakeholder engagement

    ·Manage Program Risk

    ·Develop and use emotional intelligence

    ·Implement a monitoring, evaluation and reporting program

    ·Engage in collaborative alliances

16. It is clear from the relevant ANZSCO entry that a key responsibility of all engineering professionals is project management. As set out above, these responsibilities include planning and designing systems and processes, preparing cost estimates and budgets, organising and managing labour and material, supervision of ongoing projects problem solving.

17. The Tribunal is satisfied that the skills and responsibilities which the applicant acquired in her project management course are more than complimentary for the occupation of engineering technologist. They are core skills which necessary for engineering technologists to perform the tasks associated with their occupation.

18. The Tribunal is therefore satisfied that the applicant’s Advanced. Diploma of Program Management is closely related to the occupation of Engineering Technologist. The applicant meets cl.485.222.

    Conclusion

19. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.222 of Schedule 2 to the Regulations

    Roslyn Smidt
    Member