Ramirez Moreno (Migration)

[2019] AATA 5911

Ramirez Moreno (Migration) [2019] AATA 5911 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rosastri Daily Ramirez Moreno
Mr Oscar Gabriel Preciado Gordillo

CASE NUMBER:  1817988

HOME AFFAIRS REFERENCE(S):          BCC2018/1907750

MEMBER:Denise Connolly

DATE:19 December 2019

PLACE OF DECISION:  Sydney

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

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 19 December 2019 at 11:26am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – Australian study requirement – oral evidence provided –study/training must fall within set of skills – qualifications closely related to nominated occupation – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.221, 485.222, r 1.15F

CASES

Tahla 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 1 June 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 May 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 who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied the Diploma and Advanced Diploma of Leadership and Management on which the applicant sought to rely to meet the Australian study requirement are closely related to the nominated occupation Environmental Engineer (ANZSCO 233915).

4. The applicants appeared before the Tribunal on 17 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer Mr Caetano Mantovanni.   

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 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 those requirements.

8. When making the visa application the applicant nominated the occupation Environmental Engineer. She provided evidence that she completed a Diploma in Leadership and Management in the period April 2016 to March 2017 and an Advanced Diploma in Leadership and Management in the period April 2017 to April 2018, both at Strathfield College Australia. The applicant had already completed a Bachelor in Environmental Engineering in Venezuela in the period September 2005 to December 2010.

9. The delegate’s migration agent provided a written submission addressing the various requirements for the grant of the Subclass 485 visa including the Australian study requirement. She asserted that the skill sets that underpin the Advanced Diploma and Diploma in Leadership and Management qualifications are directly transferable to the nominated occupation of Environmental Engineer in terms of subject matter and the level at which those skills were obtained. She stated that the courses are designed for individuals wishing to work in senior or strategic management across a range of engineering business and organisational settings. She explained that Engineers Australia classifies an environmental engineer under the grouping Professional Engineers, a role which includes “understanding the requirements of clients, wide-ranging stakeholders and of society as a whole; working to optimise social environmental and economic outcomes over the full lifetime of the engineering product or program; interacting effectively with other disciplines, professions and people and ensuring that the engineering contribution is properly integrated into the totality of the undertaking.” She noted that Engineers Australia provides that “professional engineers are responsible for bringing knowledge to bear from multiple sources to develop solutions to complex problems and issues for ensuring that technical and non-technical considerations are properly integrated and for managing risk as well is sustainability issues… (They) have a particular responsibility for understanding clearly how new developments relate to established practice and experience, and to other disciplines with which they interact. One hallmark of a professional is the capacity to break new ground in an informed, responsible and sustained fashion.”

10. The representative then compared and drew parallels with each of the units of study in the Diploma courses with relevant Engineers Australia requirements.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate formed the view that while completing the Advanced Diploma of Leadership and Management may possibly assist the applicant in her future career plan, the course must be closely related to the applicant’s nominated skilled occupation. The delegate found the Bachelor of Environmental Engineering, which is closely related to the nominated skilled occupation, was completed outside Australia and more than 6 months prior to lodging the Subclass 485 visa application so cannot be used to meet the Australian study requirement. Having considered the ANZSCO definition for the nominated occupation Environmental Engineer, she was not satisfied the Australian Diploma and Advanced Diploma of Leadership and Management courses are closely related to the nominated occupation. She formed the view that the description in ANZSCO does not refer to leadership and management related activities as benefiting this occupation.

12. Prior to the hearing the applicant sent to the Tribunal a written submission with various documents attached. The Tribunal has considered that material which includes the applicant’s written arguments explaining her background and its relevance to the occupation. She submits that the Diploma and Advanced Diploma of Leadership and Management have enabled her to understand complex procedures, and law and regulations relating to work, health and safety in Australia. It has assisted her develop a nuanced understanding of the strategies and policies that Australian businesses may implement to manage risks associated with sustainability and environmental projects. She believes the qualifications have enhanced her project, planning and design skills necessary for an environmental engineer in the Australian context. She states that these additional skills are highly transferable and desirable and used for more than a small part of the environmental engineering occupation.

13. The applicant has also provided a letter from Ecovantage, an Australian business specialising in creating and trading energy efficiency certificates, where she works. Her employer believes her skills and qualifications in leadership and management are closely related to her skilled occupation of environmental engineer. In her role she helps consumers reduce energy use and carbon emissions. Her primary responsibilities are performing compliance checks and processing installation documentation, reviewing relevant documentation, assisting with auditing and enquiries, performing audits and surveys, tracking project progress and reporting, maintaining the organisation’s partner register, conducting on-site compliance and auditing, communicating with stakeholders, ensuring software updates are undertaken, designing and implementing process efficiencies and facilitating training. She uses the skills acquired in the Diploma and Advanced Diploma. Her employer submits that the skills she acquired in her studies are highly compatible with her current role. The employer provides a table demonstrating that the course units relate directly to her duties in her position.

14. The applicant also provided transcripts for her Bachelor degree, and the Diploma and Advanced Diploma. She provided documentation about projects undertaken while completing her Bachelor degree and a summary of how those experiences provided her with the knowledge and skill base, engineering application ability, and personal and professional attributes relevant to the occupation Professional Engineer.

15. The applicant also provided the Engineers Australia Migration Skills Assessment Booklet, August 2017 which sets out the assessment process for assessing whether an applicant has the necessary skills and qualifications for the occupation Engineer. She provided a copy of ANZSCO Unit Group 2339 which includes the ANZSCO description for the occupation, and a description of an Environmental Engineering program at the Carleton University, Ottawa.

16. The applicant also provided a copy of her skills assessment undertaken by Engineers Australia, dated 21 November 2017, confirming that the applicant demonstrated she has the competencies required for the occupation Professional Engineer. The skills assessment notes that Engineers Australia took into account her Bachelor qualification from the Universidad Nacional Experimental del Tachira completed in December 2010.

17. At the hearing the Tribunal discussed with the applicant the issue of whether her Advanced Diploma and Diploma are closely related to her nominated skilled occupation. The following is a summary of the oral evidence provided at the hearing.

18. The Tribunal noted that the applicant’s Engineers Australia skills assessment does not mention her Diploma and Advanced Diploma. She indicated that she was undertaking the course when she made the application for the skills assessment so she did not provide to Engineers Australia the information about her Australian qualifications.

19. The Tribunal discussed with the applicant the description of Environmental Engineer provided in ANZSCO. It observed that the occupation was essentially technical and it did not appear to refer to management duties. The applicant indicated that while the occupation assesses impact on the environment, to be successful in those projects it is important to have management skills. She discussed the need to be able to manage and lead people when creating strategies to deal with environmental impacts such as contamination. To minimise contamination the environmental engineer needs to be aware of all of the issues and to know how to manage a team, risks and other aspects to minimise problems. She indicated that without her Diploma and Advanced Diploma it would be difficult for her to be employed as an engineer in Australia because it has a different culture and regulations to those in Venezuela. In order to perform the duties of the occupation she needs to know how businesses work in Australia in particular in relation to compliance. If she had not done the courses she would have had difficulty working in the occupation in Australia. When she finished her courses she was able to secure her employment with Ecovantage in an environmental engineering capacity where she works in a position aimed at minimising carbon emissions.

20. The Tribunal asked the applicant if she had any other evidence to give as to why it should be satisfied that her Australian qualifications on which she seeks to rely to meet the Australian study requirement are closely related to the nominated occupation. She discussed the skills she learned in managing, and developing strategies and action plans suitable for the Australian business culture. She indicated that the environmental engineer deals with people more than in any other engineering role. She indicated there are a lot of stakeholders involved in environmental engineering projects and her qualifications have given her the skills she needs to lead and persuade people in an environmental engineering capacity. She referred to her written submissions, in particular information she provided from Engineers Australia, Migration Skills Assessment Booklet, August 2017 which states in part that engineers must understand the requirements of clients, deal with wide-ranging stakeholders and society as a whole, working to optimise social, environmental and economic outcomes over the full lifetime of the engineering project or program. That booklet indicates that managing risk as well as sustainability is critical to the role of an engineer and they must be able to lead and manage teams appropriate to their activities. She also referred to a description from Carleton University which indicates the environmental engineer must be able to manage the effects of humans and other activities on the environment and the profession’s tasks include monitoring for regulatory compliance, working closely with professionals from range of disciplines and playing an integral role in defining and designing sustainable developments. The applicant believes her Australian qualifications have given has those skills.

21. The Tribunal took oral evidence from the applicant’s employer Mr Mantovanni, General Manager, Ecovantage. The business specialises in creating and trading energy efficiency certificates aimed at meeting renewable energy targets under the government’s energy efficiency schemes and the applicant works on its NSW office. He stated that the applicant was employed because she is an environmental engineer who has the soft skills of leadership and management as well as a technical background. He believes that in her current environmental engineering role she calls on those leadership and management skills on a daily basis. He asserted that the management and leadership courses have provided the applicant with the communication, problem-solving, and decision-making skills critical to the role of an environmental engineer. He stated that she was shortlisted for the position because of those skills as well as her engineering qualification. He stated that while the occupation requires a technical background, he believes suitable candidates must also have people and leadership skills.

22. The Tribunal has had regard to the ANZSCO description for the Unit Group 2339 - Other Engineering Professionals, Minor Group 233 Engineering Professionals, and the nominated occupation Environmental Engineer, which state as follows.

    UNIT GROUP 2339 OTHER ENGINEERING PROFESSIONALS

    
    This unit group covers Engineering Professionals not elsewhere classified.

    It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ).

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group 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 (ANZSCO Skill Level 1).

    
    Registration or licensing may be required.

    Occupations:

    …
    233915 Environmental Engineer
    …

    233915 ENVIRONMENTAL ENGINEER

    
    Assesses the impact on air, water, soil and noise levels in the vicinity of engineering projects, plans and designs equipment and processes for the treatment and safe disposal of waste material, and assesses what may cause problems for the environment in the long-term. Registration or licensing is required.

    Skill Level: 1

    MINOR GROUP 233 ENGINEERING PROFESSIONALS

    
    ENGINEERING PROFESSIONALS 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.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this minor group 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 (ANZSCO Skill Level 1).

    
    Tasks Include:

    oplanning 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

    odrafting and interpreting specifications, drawings and plans, and determining construction methods

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

    oorganising and managing project labour and the delivery of materials, plant and equipment

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

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

23. It has also had regard to relevant case law including the Federal Circuit Court decision in Tobon v MIBP [2014] were the Court held that for a qualification to be closely related to the nominated skilled occupation, the decision maker must be satisfied that the study or training for which the qualification was granted conferred on the applicant skills, all, or a substantial proportion of which, that fall within the set of skills associated with the carrying out of the occupation. The Full Court in Tahla v MIBP [2015] FCAFC 115 clarified that the findings in Tobon ought not to be read as derogating from the fundamental requirement that in conducting the evaluative exercise required by the criterion consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation.

    Does the applicant meet the Australian study requirement?

24. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.221 of Schedule 2 to the Regulations. It requires that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made.

25. 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.

26. ‘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.  

1. The applicant has made the following claims regarding her study in Australia. She completed a Diploma of Leadership and Management in the period 4 April 2016 to 31 March 2017 and an Advanced Diploma of Leadership and Management from 3 April 2017 to 16 April 2018, both at Strathfield College.  The Tribunal finds on the basis of material provided to the Department that the applicant has completed a Diploma and an Advanced Diploma of Leadership and Management as claimed.

2. The applicant is relying on these courses to meet the Australian study requirement. The delegate found the qualifications were not closely related to the nominated skilled occupation.

3. Having regard to CRICOS the Tribunal is satisfied the Diploma of Leadership and Management is a registered course of 52 weeks’ duration conducted in English. It is also satisfied the Advanced Diploma of Leadership and Management is a registered course of 52 weeks’ duration conducted in English. The Tribunal is therefore satisfied the courses were completed as the result of a total of at least 2 academic years’ study. Having regard to the material from the College the Tribunal is satisfied the applicant completed the study in the period April 2016 to April 2018, that is, at least 16 calendar months. The applicant’s movement records confirm that she was the holder of a Student visa in the period and therefore authorised to study.  The applicant completed her Advanced Diploma of Leadership and Management in April 2018. This visa application was made in May 2018.

4. On the basis of these findings the Tribunal finds the applicant satisfied Australian study requirement in the 6 months immediately preceding the day the visa application was made.

5. Accordingly the Tribunal finds the applicant meets cl.485.221.

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

6. Clause 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 is 18/051.

7. In this case, the applicant nominated the occupation Environmental Engineer which is a skilled occupation specified in the relevant instrument.  

8. The Tribunal has found on the basis of material provided to the Department that the applicant has completed a Diploma and an Advanced Diploma of Leadership and Management. It has had regard to the transcripts for those courses which indicate that they are aimed at providing leadership, developing and implementing strategic plans and business plans, managing finances, human resources, risk and stakeholder relationships. The courses also included units on undertaking project work, leading and managing a team, and communicating with influence. In considering whether these qualifications are closely related to the nominated skilled occupation the Tribunal has had regard to the ANZSCO descriptions set out above. It has also had regard to the material provided by the applicant from Engineers Australia and Carleton University, the applicant’s written submissions and the oral evidence provided at the hearing.

9. The Tribunal is mindful that its role is not to consider whether the qualifications are closely related to the applicant’s current employment or future ambitions. Rather it must consider whether the qualifications are closely related to the skilled occupation. This does not require an exact correspondence but the relationship must be more than merely complementary. While the Tribunal is entitled to give substantial weight to the ANZSCO descriptions it is also necessary to have regard to all other relevant information.

10. When considering the ANZSCO descriptions above, while that of Environmental Engineer focuses on the technical aspects of the role, other engineering descriptions in ANZSCO include duties that are of a management nature such as supervising, organising and managing, dealing with costs and resolving design and operational issues. The Tribunal also notes that the material from Engineers Australia focuses on the need for engineering professionals to have the capacity to manage projects and lead teams, to deal with stakeholders and communicate effectively. It notes that the engineer must be able to understand the requirements of clients, deal with a wide range of stakeholders and manage risk. The engineer must also be able to lead and manage teams appropriate to the activities of the given project. The Tribunal also takes into account the applicant’s evidence that the role of the environmental engineer in Australian society requires some of the skills developed in her Australian studies. It accepts her evidence that the courses provided her with the skills and knowledge to understand complex procedures, and law and regulations relating to work, health and safety in Australia and that her Australian study has assisted her develop a nuanced understanding of the strategies and policies that Australian businesses may implement to manage risks associated with sustainability and environmental projects. It accepts her Australian qualifications have enhanced her project, planning and design skills necessary for an environmental engineer in the Australian context.

11. The Tribunal has also considered the Court’s view in Tobon that the decision maker must be satisfied that the study or training for which the qualification was granted conferred on the applicant’s skills which fall within the set of skills associated with carrying out the occupation. It has looked at the whole of the occupation of engineer and her courses as a whole. The Tribunal is of the view that the applicant’s Australian qualifications have provided her with skills that fall within the set of skills associated with the role of an environmental engineer.  Overall, in the circumstances of this particular case, the Tribunal is satisfied the applicant’s Australian qualifications are closely related to her nominated skilled occupation.

12. As the applicant’s qualifications are closely related to the nominated skilled occupation, the applicant meets cl.485.222.

13. 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

14. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations.

    Denise Connolly
    Member