Ruge Penagos (Migration)

[2020] AATA 4934

Ruge Penagos (Migration) [2020] AATA 4934 (28 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan David Ruge Penagos

CASE NUMBER:  1905347

HOME AFFAIRS REFERENCE(S):          BCC2018/4973591

MEMBER:Susan Trotter

DATE:28 October 2020

PLACE OF DECISION:  Brisbane

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; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 28 October 2020 at 7.10am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Electronics Engineer – Australian study requirement – Advanced Diploma of Program Management – qualification ‘closely related’ to nominated occupation – subjects studied – reference to Transcripts of Competencies Achieved – directly referable to the tasks of Engineering Professionals listed in ANZSCO – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC; Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
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 20 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 is a now 31-year-old citizen of Colombia. He first arrived in Australia in October 2015 as the holder of a student visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 9 November 2018.

3. 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).

4. 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 delegate was not satisfied that the Diploma of Project Management and Advanced Diploma of Program Management qualifications completed by the applicant are closely related to the applicant’s nominated skilled occupation of Electronics Engineer (ANZSCO Code 233411) as required.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 March 2019 and provided the Tribunal with a copy of the delegate’s decision.

6. The applicant appeared before the Tribunal on 11 October 2020 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   ISSUES

9. 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.

10. Clause 485.221 provides that the applicant must have satisfied the ‘Australian study requirement’ in the period of six months immediately before the day the application was made.

11. Clause 485.222 provides that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation.

12. 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 one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:

    (a)  are registered courses; and

    (b)  were completed in a total of at least 16 calendar months; and

    (c)   were completed as a result of a total of at least two academic years study; and

    (d)  for which all instruction was conducted in English; and

    (e)  the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

13. ‘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).

14. For the purposes of this case, ‘2 academic years’ is specified by the Minister in IMMI 09/040 to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

15. It follows that the issues to be determined by the Tribunal are:

    (a)  Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?

    (b)  Is each degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The applicant listed the following Australian study in his visa application (unedited):

    Diploma of Project Management     Australian Pacific College        10/10/16 to 17/09/17

    Advanced Diploma of Program
    Management   Australian Pacific College        16/10/17 to 23/09/18    

    Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?

17. The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met.

18. The Tribunal is satisfied and finds that the Diploma of Project Management and Advanced Diploma of Program Management are each diplomas as defined by r.2.26AC(6) and can be taken into account.

19. Having regard to all evidence and material before it, including the Australian Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and Provider Registration and International Student Management System records, the Tribunal finds that the Diploma of Project Management and Advanced Diploma of Program Management courses are registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.

20. Based on the evidence before the Tribunal, these courses were studied by the applicant for a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met.

21. CRICOS records show that the academic duration of the Diploma of Project Management was 49 weeks and the academic duration of the Advanced Diploma of Program Management was 49 weeks. These courses together were therefore of an academic duration of 98 weeks in total (that is, at least 92 weeks or two academic years). Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of rr.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to these two courses together.

22. Based on records from the Department, the Tribunal is satisfied that the applicant held various student visas and bridging visas, including between October 2016 and September 2018 authorising study. The Tribunal therefore finds that r.1.15F(1)(e) is met.

23. As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement. In considering whether that requirement was met in the six months immediately preceding the date of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:

    When must the study have been undertaken

    …

    ·     if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.

24. The applicant’s most recently completed qualification was the Advanced Diploma of Program Management, which the Tribunal has found is an eligible qualification. Based on the documentary evidence before it, the Tribunal is satisfied and finds that the applicant completed that qualification on 23 September 2018 which is within the period of six months immediately before the day of the visa application on 9 November 2018.

25. Therefore cl.485.221 is met.

    Issue 2 – Is each such degree, diploma or trade qualification closely related to the applicant’s nominated skilled occupation?

26. An occupation is a ‘skilled occupation’ if it is an occupation of a kind:

    (a)  that is specified by the Minister in an instrument in writing to be a skilled occupation; and

    (b)  if a number of points are specified in the instrument as being available – for which the number of points are available; and

    (c)   that is applicable to the person in accordance with the specification of the occupation.[1]

    [1] Regulations 1.03 and 1.15l

27. The applicant nominated the skilled occupation of Electronics Engineer (ANZSCO Code 233411), which is a skilled occupation specified in the relevant instrument, IMMI 18/051.

28. The term ‘closely related’ is not defined in the Regulations. However, the term 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). Accordingly, the Tribunal has been guided by these cases in its consideration of this issue.

29. The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:

    (a)  While the words ‘closely related’ are not defined in the legislation, they do 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 complementary (Constantino).

    (b)  In making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, the ‘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’ (emphasis added) (Talha).

    (c)   It is appropriate to objectively consider the relationship of the applicant’s qualification (or, in this case, 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 [2010] FMCA 275, Kabir v MIAC [2010] FMCA 577 and Shafiuzzaman v MIAC [2011] FMCA 874).

    (d)  It is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation (Talha) and, 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. (Talha, Dhillon and Constantino).

30. In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the ANZSCO and has read the ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.

31. The Tribunal has proceeded on the basis of objectively considering the relationship of the applicant’s qualifications to the ANZSCO tasks for the occupation. The Tribunal has considered whether the applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation by carrying out an evaluative exercise of the whole of the Australian studies undertaken by the applicant compared with the whole of the nominated occupation.

32. The Full Federal Court’s decision in Talha notes that the ANZSCO comprises a system of five hierarchies for classifying occupations. At the lowest level of this hierarchy, the ANZSCO has a list of ‘Occupations’. The next level of hierarchy is known as a ‘Unit Group’. The next step up the ladder of the ANZSCO hierarchy is known as a ‘Minor Group’. Minor Groups are then aggregated to form ‘Sub-Major Groups’ which, in turn, step up and are aggregated at the highest level to form ‘Major Groups’.

33. ANZSCO Unit Group 2334 Electronics Engineers states that the occupation of Electronics Engineer has the following description and tasks:

    UNIT GROUP 2334 ELECTRONICS ENGINEERS

    ELECTRONICS ENGINEERS design, develop, adapt, install, test and maintain electronic components, circuits and systems used for computer systems, communication systems, entertainment, transport and other industrial applications.

    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:

    o   designing electronic components, circuits and systems used for computer, communication and control systems, and other industrial applications

    o   designing software, especially embedded software, to be used within such systems

    o   developing apparatus and procedures to test electronic components, circuits and systems

    o   supervising installation and commissioning of computer, communication and control systems, and ensuring proper control and protection methods

    o   establishing and monitoring performance and safety standards and procedures for operation, modification, maintenance and repair of such systems

    o   designing communications bearers based on wired, optical fibre and wireless communication media

    o   analysing communications traffic and level of service, and determining the type of installation, location, layout and transmission medium for communication systems

    o   designing and developing signal processing algorithms and implementing these through appropriate choice of hardware and software

    Occupation:

    233411 Electronics Engineer

    233411 ELECTRONICS ENGINEER

    Designs, develops, adapts, installs, tests and maintains electronic components, circuits and systems used for computer systems, communication systems, entertainment, transport and other industrial applications. Registration or licensing may be required.

    Skill Level: 1

    Specialisation:

    Communications Engineer (Army)

34. The Transcripts of Competencies Achieved for the Diploma of Project Management and Advanced Diploma of Program Management completed by the applicant show the following subjects were completed by the applicant towards the courses:

    Diploma of Project Management

    Manage budgets and financial plans
    Manage meetings
    Manage project costs
    Manage project human resources
    Manage project information and communication
    Manage project integration
    Manage project quality
    Mange project risk
    Manage project scope
    Manage project time
    Manage recruitment selection and induction processes
    Manage risk

    Advanced Diploma of Program Management

    Develop and use emotional intelligence
    Enable program execution
    Engage in collaborative alliances
    Facilitate stakeholder engagement
    Implement program governance
    Lead and manage organisational change
    Lead and manage team effectiveness
    Manage benefits
    Manage finances
    Manage human resources strategic planning
    Manage program risk
    Provide leadership for the program

35. The applicant told the Tribunal at hearing that he undertook the Diploma and Advance Diploma qualifications in order to gain more opportunities in the labour market for an Electronics Engineer, having already completed a Bachelor of Electronic Engineering in Colombia in 2015 prior to coming to Australia. His evidence was that he found many job opportunities in Australia for Electronics Engineers, however, all required a background in project management so he decided to undertake the additional qualifications in Australia.

36. At hearing, the Tribunal discussed a number of matters with the applicant, including that the issue to be determined is not whether the Diploma of Project Management and Advanced Diploma of Program Management might be useful to him in his nominated occupation, or whether it might be of assistance to him with his future aspirations or whether it is closely related to his current employment, but rather whether each of the qualifications are ‘closely related’ to the nominated skilled occupation.

37. The Tribunal has identified the description and tasks information in ANZSCO in relation to the occupation of Electronics Engineer, including having had regard to the tasks described in Unit Group 2334. The Tribunal also had regard to the higher hierarchies of which Unit Group 2334 forms a part, that is Minor Group 233 Engineering Professionals and Sub-Major Group 23 Design, Engineering, Science and Transport Professionals both of which Groups list a description and tasks as follows:

    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:

    o   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

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

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

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

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

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

    SUB-MAJOR GROUP 23 DESIGN, ENGINEERING, SCIENCE AND TRANSPORT PROFESSIONALS

    DESIGN, ENGINEERING, SCIENCE AND TRANSPORT PROFESSIONALS fly and ensure the safe operation of aircraft, control and manage the operation of ships, boats and marine equipment, design buildings, landscapes and products for manufacture and visual communication, design, plan and organise the testing, construction and maintenance of structures, machines, production systems and plants, and perform analytical, conceptual and practical tasks in relation to the chemical and physical properties of the universe, living organisms, and the environment.

    Indicative Skill Level:

    Most occupations in this sub-major group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

    AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

    In New Zealand:

    NZQF Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

    NZQF Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

    In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    o   flying aircraft, and ensuring the safe and efficient operation of aircraft in flight and on the ground

    o   controlling and directing the operation of ships, boats and marine equipment to ensure the safe and efficient loading and transport of cargo and passengers

    o   designing products including furniture, textiles and maps, and physical structures and engineering systems

    o   conducting research and practical tests to resolve design and operational problems

    o   interpreting and analysing data from engineering and scientific experiments and tests

    o   conducting experiments and tests to determine the chemical composition and reactive properties of natural substances and processed materials

    o   analysing and describing living organisms and their interaction with their environment

    o   advising on the use of natural resources, and discussing and making recommendations to individuals and groups about variables affecting land use

1. The Tribunal also had regard to the highest hierarchy of which Unit Group 2334 forms a part, that is Major Group 2 Professionals which list the following description and tasks:

   MAJOR GROUP 2 PROFESSIONALS

   PROFESSIONALS perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare.

   Indicative Skill Level:

   Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.

   In Australia:

   Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

   AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

   In New Zealand:

   Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or

   NZQF Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2).

   In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Some occupations, such as those in Sub-Major Group 21 Arts and Media Professionals, require high levels of creative talent or personal commitment and interest as well as, or in place of, formal qualifications or experience.

   Tasks Include:

   o   communicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts

   o   analysing, planning, developing and implementing programs and solutions to resolve business and economic problems

   o   providing services in financial accounting, human resource development, publicity and marketing, and the efficient operation of organisations

   o   flying aircraft, and controlling and directing the operation of ships, boats and marine equipment

   o   conducting and analysing research to extend the body of knowledge in the field of the sciences and developing techniques to apply this knowledge

   o   designing products, buildings and other physical structures, and engineering systems

   o   researching and developing curricula, and teaching students in a range of educational settings

   o   designing, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed, and disseminated

   o   identifying, treating, and advising on, health, social, and personal issues

   o   advising clients on legal matters

2. A written submission provided to the Tribunal included a table to illustrate how the Australian units of the Diploma of Project Management and Advanced Diploma of Program Management qualifications completed by the applicant are closely related to the occupation tasks and duties of Electronics Engineer as follows:

designing electronic components, circuits and systems used for computer, communication and control systems, and other industrial applications

Manage project quality BSBPMG513

Manage project cost BSBPMG514

Manage project scope BSBPMG511

Manage project time BSBPMG512

Designing software, especially embedded software, to be used within such systems

Manage project scope BSBPMG511

Manage project time BSBPMG512

Manage project integration BSBPMG521

developing apparatus and procedures to test electronic components, circuits and systems

Manage risk BSBRSK501

Manage project risk BSBPMG517

Manage project integration BSBPMG521

supervising installation and commission of computer, communication and control systems, and ensuring proper control and protection methods

Manage project human resources BSBPMG515

Lead and manage team effectiveness BSBWOR502

Provide leadership for the program BSBPMG617

Facilitate stakeholder engagement BSBPMG611

establishing and monitoring performance and safety standards and procedures for operation, modification, maintenance and repair of such systems

Manage benefits BSBPMG613

Manage project risk BSBPMG517

Implement program governance BSBPMG612

Enable program execution BSBPMG610

Manage program risk BSBPMG616

analysing communications traffic and level of service, and determining the type of installation, location, layout and transmission medium for communication systems

Mange project human resources BSBPMG515

Manage project information and communication BSBPMG516

Manage meetings BSBADM502

Manage project scope BSBPMG511

Manage project integration BSPPMG521

1. The Tribunal has considered the actual subjects studied in the Diploma of Project Management and Advanced Diploma of Program Management course by the applicant, including by reference to the Transcripts of Competencies Achieved and the tasks for Engineering Professionals listed in Minor Group 233 for Engineering Professionals and in the Unit Group for Electronics Engineer.

2. The Tribunal took into account the Full Federal Court’s observations on that approach in Talha and, as already noted, the need to compare the whole of the applicant’s studies against the whole of the nominated occupation.

3. The Tribunal is satisfied from analysing the subjects studied towards the qualifications and the relevant tasks for the whole of the Minor Group for Engineering Professionals that many of the subjects studied are directly referable, and not just complementary, to the tasks of Engineering Professionals, and an Electronics Engineer.

4. Having carefully considered all of the evidence and the detailed written submission provided by the applicant’s representative, the Tribunal is satisfied that the Diploma of Project Management and Advanced Diploma of Program Management qualifications completed by the applicant are closely related to the nominated occupation of Electronics Engineer.

5. Clause 485.222 is therefore met.

   Conclusion

6. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and cl.485.222.

7. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

8. 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; and

   ·cl.485.222 of Schedule 2 to the Regulations.

   Susan Trotter
   Member