Ribeiro Holanda Lima (Migration)

[2020] AATA 5752

Ribeiro Holanda Lima (Migration) [2020] AATA 5752 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Ribeiro Holanda Lima

CASE NUMBER:  1921910

HOME AFFAIRS REFERENCE(S):          BCC2019/2536353

MEMBER:Jennifer Cripps Watts

DATE:3 December 2020

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.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 3 December 2020 at 2:20pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Mechanical Engineer – Australian study requirement  – Advanced Diploma of Program Management – Diploma of Project Management – qualification ‘closely related’ to nominated occupation  – ANZSCO tasks description – whether skills acquired from qualification directly transferable 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

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 (delegate) on 22 July 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 14 May 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 (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 delegate was not satisfied that their Australian qualifications were closely related to the nominated skilled occupation.

4. The applicant appeared before the Tribunal on 1 December 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his 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 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.

8. The Tribunal has had regard to information in the Department and Tribunal files, the oral evidence received at the scheduled hearing and any other matters considered to be relevant in reaching a decision.

9. The applicant and his migration agent, Mr Shakenovsky, provided comprehensive and well-reasoned written submissions prior to the hearing about the matters material to the issue on review, that is, whether the applicant’s Australian qualifications are closely related to his nominated occupation, Mechanical Engineer, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 233512.

   Does the applicant meet the Australian study requirement?

10. 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.

11. ‘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 (IMMI 19/085), being the duration of a course registered under the Education Services for Overseas Students Act 2000.

12. The applicant submitted evidence of the following qualifications in support of his visa application, undertaken at the Clarendon Business College, CRICOS code 01953J:

    a.Advanced Diploma of Program Management (49 weeks), from 9 April 2018 to 15 March 2019

    b.Diploma of Project Management (49 weeks), from 10 April 2017 to 16 March 2018

13. The visa application was made on 14 May 2019.  The Tribunal has assessed the qualifications and is satisfied that:

    ·The courses are registered courses (as defined in r.1.03)

    ·The applicant completed (as defined in 1.15F(2)) the most recent diploma (as defined in r.2.26AC(6)), on 15 March 2019

    oin a total of at least 16 calendar months

    oas a result of at least two academic years’ study

    ofor which all instruction was conducted in English

    owhile the applicant held a visa authorising study

14. The applicant completed the most recent qualification on 16 March 2019.  The Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately preceding the date of the visa application.

15. Therefore, the applicant meets cl.485.221.

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

16. In addition to the Australian study requirement, 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 19/051.

17. In this case, the applicant nominated the occupation of Mechanical Engineer, which is a skilled occupation specified in IMMI 19/051.

18. The Tribunal has had regard to the ANZSCO as a whole to identify and apply relevant information when considering whether the applicant’s qualifications are closely related to the nominated skilled occupation.  The applicant has combined two courses to meet the Australian study requirement and each courses must be closely related to the nominated skilled occupation. 

19. The skilled occupation of Mechanical Engineer is included in the ANZSCO Minor Group 233, Engineering Professionals, described as those who ‘…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’.

20. Unit Group 2335 of the ANZSCO includes Industrial, Mechanical and Engineers.  It is indicated in the description that a Mechanical Engineers (223512) ‘…plans, designs, organises and oversees the assembly, erection, operation and maintenance of mechanical and process plant and installations.’

21. The ANZSCO tasks for the unit group include:

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

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

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

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

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

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

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

    ·inspecting plant to ensure optimum performance is maintained

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

22. The applicant’s Diploma of Project Management has 12 units with a focus on projects, including topics such as scope, time, quality, cost, human resources, risk, using emotional intelligence and managing work priorities.  The Advanced Diploma of Program Management also has 12 units of study indicating a higher and more in depth level of study of similar topics.  A ‘project’ may ordinarily have strictly defined outputs, where a ‘program’ may contain multiple ‘projects’ that benefit a whole organisation.    

23. The applicant provided the Tribunal with his academic transcripts, which list the units of study undertaken in each of his qualifications meeting the Australian study requirement.  The Tribunal spoke to the applicant about the units of study and how he claims they underpin the nominated skills.  The documentary evidence and the applicant’s oral evidence have been considered carefully with reference to the question of whether the Tribunal can be satisfied that at least a substantial proportion of the skills acquired by the applicant from his Australian qualifications are directly transferable to the nominated skilled occupation.

24. Having regard to the usual tasks of this unit group of engineers, in this case the Tribunal is satisfied that a substantial proportion of the acquired skills, in each of the courses relied on by the applicant, and which the Tribunal has found meet the Australian study requirement, underpin relevant nominated skills for a Mechanical Engineer.  They are skills that are more than ‘merely complementary’ to the role of a Mechanical Engineer, not only or necessarily confined to enhancing career progression, but relevant to the whole of the nominated occupation at any stage of his career as a Mechanical Engineer.  It is the Tribunal’s view that the acquired skills in this case equip the applicant with skills to carry on the nominated occupation at entry, or any, level of their career, for large or small projects. 

25. For example, if a Mechanical Engineer is working remotely at a mine and finds themselves dealing with people by phone or in online video conference meetings, the acquired skill of using emotional intelligence will enable them to effectively communicate where the usual face and/or whole body visual cues may be absent.  Time management skills are no doubt important for an engineer, as accurate and well defined timelines are critical to the success of a project.  It has been submitted that even in the earlier stages of their career, a Mechanical Engineer will be responsible for people and teams to progress and complete a project successfully and that even an entry level engineer may consider it important to already have chosen a style of leadership, through study, for that purpose.

26. It has been submitted, and is accepted by the Tribunal, that the ‘acquired skills’ of project time management and quality management, cost and risk management underpin the nominated skills.  As do the ‘acquired skills’ of adopting procedures and technologies to ‘handle changes in external conditions and the project environment’ in the area of organisational change, and the ‘acquired skills’ of being aware of and minimising negative environmental impacts in the area of sustainability.  These are a just few examples taken from the applicant’s academic transcripts.

27. Overall, having read the ANZSCO code as a whole, relating to the nominated skilled occupation of Mechanical Engineer, having regard to all relevant information and having objectively considered the relationship of the applicant’s Australian qualifications to the ANZSCO definition of the occupation, the Tribunal is satisfied that the qualifications are closely related to the nominated skilled occupation.

28. As the applicant’s qualification/s is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

29. 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

30. 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.

    Jennifer Cripps Watts
    Member