Rezende Souza E Silva (Migration)

[2023] AATA 799

Rezende Souza E Silva (Migration) [2023] AATA 799 (4 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Renan Rezende Souza E Silva

REPRESENTATIVE:  Miss Bianca Chisari (MARN: 1573911)

CASE NUMBER:  1924228

HOME AFFAIRS REFERENCE(S):          BCC2019/3099123

MEMBER:Warren Stooke AM

DATE:4 January 2023

PLACE OF DECISION:  Melbourne

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 485.221 of Schedule 2 to the Regulations

·cl 485.222 of Schedule 2 to the Regulations

Statement made on 4 January 2023 at 1:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Mechanical Engineer – Australian study requirement – Advanced Diploma of Program Management – whether qualification ‘closely related’ to nominated occupation – decision under review remitted

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

CASES
Talha v Minister for Immigration and Border Protection [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 13 August 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 June 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the subjects studied in Project Management courses were considered as skills not necessary to undertake a role as a Mechanical Engineer – ANZSCO Code: 233512.

4. The applicant appeared before the Tribunal on 10 November 2022 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood the reason for the refusal of his visa application was because the agent was responsible for not advising the courses in Project Management were not closely related to the nominated occupation.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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 cl 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 before 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 those requirements.

9. The applicant stated that he arrived in Australia on 27 September 2016 and was granted a Bridging Visa A on 19 June 2019 that became active on 28 June 2019 at the expiry of his Student (Temporary) Visa. The Bridging Visa A contained condition 8501 to maintain health insurance.

10. The applicant provided evidence of an AFP Police check dated 31 May 2019 that stated – ‘no disclosable court outcomes’.

11. The applicant provided evidence of the completion of a PTE English language test on 13 July 2018 with a score of 83.

12. The applicant provided evidence of a successful skills assessment with Engineers Australia dated 18 February 2019 at the Professional Engineer Skill Level 1, which was based upon a Bachelor of Engineering from Pontificia Universidade Catolic de Minas Gerais, Brazil.

13. The applicant provided evidence of health insurance with Bupa that commenced on 29 June 2019.

14. The applicant provided evidence of the completion of the following courses of study at the Australian Pacific College (CRICOS Provider Code: 01331F):

    ·   Advanced Diploma of Program Management, Australian Pacific College (Certificate of completion dated 28/4/2019; academic transcript issued on 2/5/2019)

    ·   Diploma of Project Management, Australian Pacific College (Certificate of completion issued on 6/5/2018; academic transcript issued on 31/7/2018);

    ·   Certificate IV in Project Management Practice, Australian Pacific College (certificate of completion issued on 2/4/2017; academic transcript issued on 28/4/2017)

15. The Advanced Diploma of Program Management, which was undertaken over a period of 52 weeks, included the following subjects in the course:

Organisational Finances	Stakeholder Engagement
Team Effectiveness	Project Leadership
Strategic workforce planning	Program Risk
Manage Benefits	Alliances
Initiate Programs	Program Governance
Emotional Intelligence	Stakeholder Engagement

1. The Diploma of Project Management, which was undertaken over a period of 52 weeks, included the following subjects in the course:

Project Scope & Time	Manage Meetings
Information and Communication	Project HR 2
Project Costs	Innovative Work Environments
Project Risk 2	Project Integration
Project Quality	Advanced Management of WHS
Project Compliance	Manage Meetings

1. The nominated occupation of Mechanical Engineer – ANZSCO Code: 233512 has the following descriptor:

   “UNIT GROUP 2335 INDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERS

   INDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERS design, organise and oversee the construction, operation and maintenance of mechanical and process plant and installations, establish programs for the coordination of manufacturing activities, and ensure usage of resources is cost effective.

   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.

   Tasks Include:

   ostudying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication

   oestablishing work measurement programs and analysing work samples to develop standards for labour utilisation

   oanalysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficiencies

   odesigning mechanical equipment, machines, components, products for manufacture, and plant and systems for construction

   odeveloping specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systems

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

   oestablishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations

   oinspecting plant to ensure optimum performance is maintained

   odirecting the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedules

   
   Occupations:

   233511 Industrial Engineer
   233512 Mechanical Engineer
   233513 Production or Plant Engineer

   
   
   233512 MECHANICAL ENGINEER

   Plans, designs, organises and oversees the assembly, erection, operation and maintenance of mechanical and process plant and installations. Registration or licensing may be required.

   Skill Level: 1

   Specialisations:

   Airconditioning Engineer
   Heating and Ventilation Engineer”

2. The applicant provided evidence that prior to arriving in Australia he had experience with Project Management and stated that no engineering can be undertaken without Project Management, which was based upon his real life experience with Project Management.

3. The applicant stated that he studied Project Management to enhance his career and the course included:

   a.risk assessment, with the maintenance of quality and safety;

   b.management of project costs with limited resources;

   c.understanding of emotional intelligence through the dealing with different people from different backgrounds and potential conflicts;

   d.project scope with planning and the need to question the feasibility and establish effective decisions;

   e.understanding of government regulations;

   f.mitigation strategies;

   g.communication.

4. The applicant stated that he was working as an IT Engineer with Fuji Film on an infrastructure project, whereby if a company outsources their IT then Fuji will help.

5. The applicant stated that he was currently employed on a salary of $65,000 per annum.

6. The applicant provided evidence that he applied for a 189 visa in 2019 and held a score of 85 which was not enough and he intends to apply again.

   Representative Submission

7. The Representative provided the Tribunal with a detailed submission covering the applicant’s course content and arguments that Project Management is ‘closely related’ to the nominated occupation.

   Does the applicant meet 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 Tribunal is satisfied that the courses of study undertaken by the applicant was with a registered organisation in an approved CRICOS course, with the provider Australian Pacific College (Provide CRICOS Code: 01331F) for a period that exceeded 16 months in at least two academic years of course study through instruction in the English language whilst the holder of a student visa. In this regard, the Tribunal is satisfied that the following courses of study have met the ‘Australian study requirement’:

    ·   Advanced Diploma of Program Management, Australian Pacific College (Certificate of completion dated 28/4/2019; academic transcript issued on 2/5/2019)

    ·   Diploma of Project Management, Australian Pacific College (Certificate of completion issued on 6/5/2018; academic transcript issued on 31/7/2018);

    ·   Certificate IV in Project Management Practice, Australian Pacific College (certificate of completion issued on 2/4/2017; academic transcript issued on 28/4/2017)

11. The applicant has also provided evidence that he was provided with a successful skills assessment by Engineers Australia on 18 February 2019 based upon the undergraduate course of study undertaken for the nominated occupation of Mechanical Engineer – ANZCO Code: 233512.

12. Accordingly, cl 485.231(1) is met.

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

13. 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 13/065 of the Register of Instruments - Skilled visas.

14. In this case, the applicant nominated the occupation of Mechanical Engineer, which is a skilled occupation specified in IMMI 13/065 of the Register of Instruments - Skilled visas.

15. The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for an Mechanical Engineer – ANZCO Code: 233512, is satisfied that the courses of study undertaken by the applicant, in the broader context of the Mechanical Engineering occupation can be viewed as ‘closely related’. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:

    “[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).

    The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”

16. The Tribunal is satisfied that the applicant has undertaken courses of study that are closely related to the occupation of a Mechanical Engineer – ANZCO Code: 233512 because the subject modules in the Project and Program Management courses undertaken by the applicant have included a significant component of People, Work and Organisations; Organisational Finance; Planning and Scheduling; and Safety and Risk Management, which the Tribunal regards as inextricably linked to the occupation of an Mechanical Engineer – ANZCO Code: 233512 when applying their professional skills in the workplace and thereby ‘closely related’ for the purposes of cl 485.222. The Tribunal accepts that a contemporary Mechanical Engineer not only requires technical skills to perform in the occupation, but also has to plan, lead and manage other personnel in the execution of engineering projects and activities, which interfaces with a broad scope of people, finance and organisational disciplines.

17. The Tribunal is satisfied that the Minor Group 233 Engineering Professionals states '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.  Moreover, tasks under this minor group include:

    ·   planning and designing engineering projects

    ·   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

18. On this basis, the Tribunal is satisfied that the substantial part of the content of the Project and Program Management courses, specifically undertaken by the applicant and as described in evidence, are closely related to the nominated occupation of Mechanical Engineer – ANZCO Code: 233512.

19. Given 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 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;

    Warren Stooke AM
    Member