Serrano Duran (Migration)

[2022] AATA 2965

Serrano Duran (Migration) [2022] AATA 2965 (31 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Johana De Los Angeles Serrano Duran
Mr Jose Vicente Chong Martinez

REPRESENTATIVE:  Mrs Heidi Maryelen Ochoa-Tuqiri (MARN: 0533317)

CASE NUMBER:  1914757

HOME AFFAIRS REFERENCE(S):          BCC2019/1027477

MEMBER:Ian Berry

DATE:31 August 2022

PLACE OF DECISION:  Brisbane

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 31 August 2022 at 2:52pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualification closely related to nominated occupation – qualification in program management and occupation of ICT business analyst – comparison of modules of qualification and ANZSCO description – whole of qualification and whole of occupation – not an exact correspondence, but more than complementary – diploma, advanced diploma and relevant experience – skills assessment – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC (2011) 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 MIBP (2015) FCAFC 115
Tobon v MIBP [2014] FCCA 220

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 (DHA) on 28 May 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 1 March 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 visas as the first named applicant (the applicant) did not satisfy cl 485.222 of Schedule 2 to the Regulations because the qualification of Advanced Diploma in Program Management is not closely related to the nominated occupation of ICT Business Analyst ANZSCO 261111.

4. The Tribunal exercised its discretion to hold the hearing by video. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video achieved this end. The applicant provided to the Tribunal a copy of the delegate's decision.

5. The applicants appeared before the Tribunal on 9 December 2021 and 25 January 2022 to give evidence and present arguments. The Tribunal was not satisfied that evidence be received without the benefit of an interpreter.  At the second hearing an interpreter was used until the applicant consented for the interpreter be used only when it was necessary though the Tribunal’s opening was interpreted fully.  The Tribunal was satisfied the applicant understood the questions.  Oral evidence from the applicant at the second Tribunal hearing was conducted with the limited assistance of an interpreter in the Spanish (Central and South America) and English languages.

6. The applicants were represented in relation to the review. The representative attended the Tribunal hearings.

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.

   The applicant’s qualifications

9. The applicant’s qualifications are:

   a.Diploma of Project Management (Diploma)[1]; and

   b.Advanced Diploma in Program Management (Advanced Diploma).

   [1] A letter from Australian Pacific College dated 1 February 2022 made an error which was corrected. The error was to award a Certificate IV rather than a Diploma. See paragraph 34.

   Does the applicant meet the Australian study requirement?

10. Under reg 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

    ·were completed in a total of at least 16 calendar months; and

    ·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

    ·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 regs 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 (reg 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[2]).

    [2] IMMI 09/040 states in(b) 2 academic years is at least a total of 92 weeks, being the duration of a course or courses registered under section 9 Education Services for Overseas Students Act 2000;

12. The applicant satisfied the Australian study requirement in the following way:

    ·The Diploma commenced on 6 February 2017 and was completed on 17 December 2017.

    ·The Advanced Diploma commenced on 5 February 2018 and was completed on 16 December 2018. The Advanced Diploma totalled 49 academic weeks and the Diploma totalled 49 academic weeks, aggregating to 98 academic weeks.

    ·The period between 6 February 2017 and 16 December 2018 represents a duration of over 22 months.

    ·Both qualifications were a result of studying CRICOS registered courses.

    ·The instruction for the courses leading to the qualifications were all conducted in English.

    ·The applicant held a student Visa for the entire period of instruction.

13. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application.

14. Therefore, the applicant meets cl 485.221.

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

15. In addition, cl 485.222 requires each qualification used to satisfy that requirement is 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 (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.

16. In this case, the applicant nominated the occupation of ICT Business Analyst ANZSCO 261111 which is a skilled occupation specified in IMMI 18/051.

17. For the applicant to satisfy cl 485.222 both the qualifications must be closely related to the nominated occupation. That involves a process which includes comparing the units of competency (relevant to the Diploma) and the modules (relevant to the Advanced Diploma) and of the applicant’s qualifications with the tasks at all levels of ANZSCO.

    The applicant’s qualifications

18. The Australian Pacific College provided the following Record of Results for the Diploma, in particular naming the modules, to be read with the complimentary explanations[3] and evidence from the applicant:

    [3] The applicant provided a document 'BSP 60720 Advanced Diploma of Program Management', and 'BSP 50820 Diploma of Project Management' both of which provided more detail as to the content of each course including Aims, Job Roles, Duration, Entry Requirements, Materials, Course Structure  and Units of Competency, Assessment Schedule  and each individual unit including Elements Describing the Essential Outcomes, Conduct Project Authorisation Activities, Define Project Scope  and Manage Project Scope Control Process

Competency Name

Manage budgets and financial plans

Manage meetings

Manage project cost

Manage project human resources

Manage project information and communication

Manage project integration

Manage project quality

Manage project risk

Manage project scope

Manage project time

Manage recruitment selection and induction processes

Manage risk

1. The Australian Pacific College Record of Results for the Advanced Diploma detailed below, which again are to be read with the complimentary material from the College and the submissions made on behalf the applicant:

Subject Name

Module Name

Alliances

Engage in collaborative alliances

Emotional Intelligence

Develop and use emotional intelligence

Financial Management 2

Manage finances

HR Planning

Manage human resources strategic planning

Initiate Programs

Enable program execution

Manage Benefits

Manage benefits

Program Governance

Implement program governance

Program Risk

Manage program risk

Project Leadership

Provide leadership for the program

Lead and manage organisational change

Stakeholder Engagement

Facilitate stakeholder engagement

Team Effectiveness

Lead and manage team effectiveness

1. ANZSCO at the occupation 261111 level, identifies the ICT Business Analyst as ‘identifying and communicating with users to formulate and produce a requirement specification to create system and software solutions’.

2. At the ANZSCO Unit Group 2611 level, refers to the tasks as:

   ·Working with users to formulate and document business requirements.

   ·Identifying, investigating and analysing business processes, procedures and work practices.

   ·Identifying and evaluating inefficiencies and recommending optimal business practices, and system functionality and behaviour.

   ·Using project management methodologies, principles and techniques to develop project plans and to cost, resource and manage projects.

   ·Taking responsibility for deploying functional solutions, such as creating, adopting and implementing system test plans, which ensure acceptable quality and integrity of the system.

   ·Creating user and training documentation, and conducting formal training classes.

   ·Developing functional specifications for use by system developers.

   ·Using data and process modelling techniques to create clear system specifications for the design and development of system software.

   ·Acting as a central reference and information source, providing guidance and assistance in the system project decision making process.

3. At ANZSCO Minor Group 261 level, tasks which apply to the nominated occupation and the studies undertaken by the applicant include:

   ·Identifying, formulating and documenting user ICT requirements.

   ·Providing advice, guidance, expertise and assistance in the system project decision making process and in the development of system proposals and strategies.

   ·Identifying and evaluating inefficiencies, deficiencies and limitations in existing systems and associated processes, procedures and methods, and recommending optimal business practices, and system functionality and behaviour.

4. At ANZSCO’s Sub-Major Group 26 level, the following tasks were identified as relevant to the ICT Business Analyst:

   ·Developing and documenting strategies, policies and procedures relating to the use of ICT technologies and services.

   ·Planning, analysing, designing, developing, implementing, testing, operating, maintaining and assisting with the use of technologies and services that enable information, such as voice, image and data, to be accessed, networked, stored, processed, transformed, manipulated and transmitted over a variety of media.

5. At ANZSCO’s Major Group 2 level, the following tasks were identified as relevant to the nominated occupation:

   ·Analysing, planning, developing and implementing programs and solutions to resolve business and economic problems.

6. The Tribunal has taken a qualitative approach in comparing this ANZSCO at all task levels with the modules and units undertaken by the applicant for both the Diploma and Advanced Diploma qualifications. The Tribunal is satisfied that the substantive number of the modules are consistent with that of the nominated occupation.

   Skills assessments provided by the applicant

7. An applicant will satisfy the requirement to have a suitable assessment where there is evidence of an assessment from the relevant assessing authority which states that the applicant’s skills have been assessed as suitable for the nominated occupation.  The applicant applied for and obtained a skills assessment dated 20 February 2019 with, from the Australian Computer Society Inc.  That society is charged with the authority to provide skills assessments relating to the nominated occupation. The 9 March 2017 Skills Assessment was submitted with her application to the DHA stated:

8. The Skills Assessment dated 9 March 2017, stated:

   Your skills have been assessed to be suitable for migration under 261111 (ICT Business analysts) of the ANZSCO code.

   Your qualification has been assessed as follows:

   Your Computer Sciences Engineer from Alejandro Humboldt University completed November 2008 has been assessed as comparable to an AQF Advanced Diploma with a major in computing.

   The following employment after May 2011 is considered to equate to work at an appropriately skilled level and relevant to 261111 (ICT Business Analysts) of the ANZSCO code.

   Dates:   05/05 - 08/13 - 8 years 3 months

   Position:         Quality and Process Coordinator

   Employer:       Galaxy Entertainment de Venezuela, C.A.

   Country:          Venezuela

   The following employment has been assessed as not suitable.

   Dates:   09/13 - 01/16 - 2 years 5 months

   Position:         ICT Project Manager

   Employer:       Mercantil Banco Universal

9. The second Skills Assessment from the Australian Computer Society Inc. dated 20 February 2019 repeats the earlier assessment that the employment after May 2011 is considered to equate to work at an appropriately skill level and relevant to 261111 (ICT Business Analysts) of the ANZSCO code.

10. The Tribunal notes that the applicant has had experience of at least five years in the field of ICT Business Analysts.

    The Law and the Tribunal’s reasoning

11. The central issue in this case has been whether the applicant’s Diploma and Advanced Diploma are closely related to the qualifications, skills and tasks set out in ANZSCO code 261111.  To determine whether there is a close relationship between the nominated occupation and the lists of tasks in all levels of ANZSCO requires an approach set out in the decision of Manousaridis J in Tobon vs MIBP [2014] FCCA 2208 (Tobon).  It was proposed that there is a three-step process in determining whether the nominated occupation must be determined by reference to ANZSCO.  This three-step process is:

    ‘(a)First, the decision-maker must identify the study or training for which the diploma was granted, and the skills the applicant acquired as a result of such study or training (acquired skills).

    (b)Second, the decision-maker must identify the set of skills that are associated with carrying on the nominated skilled occupation (nominated skills).

    (c)Third, the decision-maker must determine whether all or a substantial portion of the acquired skills are nominated skills.  If the decision-maker so determines, the diploma is closely connected with the nominated skilled occupation[4].

    [4] The Full Court of the Federal Court decision in Dhillon did not necessarily accept the third element of the process as the decision was made to suggest that all levels of ANZSCO should be considered.

12. The Tobon decision is an early case in assisting in the determination of a test as to the close relationship between the acquired skills and the nominated skills. The term closely related is not defined in the Act or Regulations. Other decisions have 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).

    ·These decisions have provided guidance to the Tribunal, in determining whether the qualification is closely related to the applicant’s nominated skilled occupation:

    ·The words ‘closely related’ require and call attention to the connection between two things, and although these words do not require an exact correspondence (Dhillon), the relationship must be more than merely complimentary (Constantino).

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

    ·Appropriately, objectivity is required when considering the relationship of the applicant’s qualification (or 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 (2011) FMCA 275, Kabir - v - MIAC (2010) FMCA 577 and Shafiuzzaman - v - MIAC (2011) FMCA 874.

    ·It is ultimately a matter for the decision-maker (in this instance, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation (Talha) and, in carrying out this evaluation, it is critical for the whole of the Australian studies be compared with the whole of the nominated occupation. (Talha, Dhillon and Constantino).

13. The Tribunal has made a qualitative assessment of the modules undertaken in the Diploma and Advanced diploma qualifications and is satisfied that the substantive number of those modules are closely related to the nominated position.

14. The applicant has undertaken her studies at the Diploma and Advanced Diploma levels, though her experience, in excess of five years, overcomes her not having a bachelor degree. Further, it is noted that in ANZSCO it does state that, at the Major Group level an AQF associate degree, advanced diploma or diploma or at least three years a relevant experience is permissible.

1. The second named applicant (secondary applicant) is a member of a family unit of a person who holds a Subclass 485 visa. The secondary applicant meets the secondary criteria. The Tribunal finds that the secondary applicant does satisfy clause 485.311. Therefore, the application relating to the secondary applicant should be remitted to DHA for reconsideration.

2. It should be noted the Tribunal questioned as to the applicant’s course and qualification ‘Certificate IV in Project Management Practice’ where it appears in the applicant’s confirmation of enrolments. As a result, the applicant challenged the qualification by contacting the Australian Pacific College as to the Certificate IV should have been a Diploma qualification. By letter dated 1 February 2022, a copy of which was given to the Tribunal, the Australian Pacific College confirmed the following the following:

   ‘Further to our letter of 16 December 2021, we have been asked to provide more detailed information related to the administrative error made by Australian Pacific College and to confirm that the above-mentioned student definitely studied and successfully completed BSB51415 Diploma of Project Management.

   The corrected error and subsequent issuance of the CoE for Diploma of Project Management can be seen in PRISMS from the screenshot below.

   This screenshot also shows in PRISMS the CoE (CA6C5826) and study period 06/02/2017 to 17/12/2017 for the Diploma of Project Management as “Finished”.

   The CoE for Certificate IV in Project Management Practice shows as “Cancelled”.’

   DECISION

3. 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.

   Ian Berry
   Member