Shi (Migration)

Shi (Migration) [2022] AATA 1682 (22 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Yingying Shi
Mr Fengming Lin
Miss Zhifan Lin
REPRESENTATIVE:  Miss Jingya Kou (MARN: 1572574)
CASE NUMBER:  1910467
HOME AFFAIRS REFERENCE(S):          BCC2018/6034428
MEMBER:Susan Trotter
DATE:22 April 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 22 April 2022 at 6:15pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –graduate work stream – most recent qualification closely related to nominated skilled occupation – qualification in interpreting and occupation of developer programmer – comparison of units of study and ANZSCO description of occupation – relationship must be more than merely complementary – bilingual systems, software, clients and data – requirement applies to nominated occupation, not to nominee’s particular position – some units of study directly related to occupation – computer code not ‘language other than English’ – other, closely related qualifications completed more than six months before visa application made – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), rr 1.15F(1), 2.26AC(6), 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 MIBP [2015] FCAFC 115
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 April 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant, the primary visa applicant (the applicant) is a now 34-year-old citizen of China. She applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 8 January 2019. The second and third-named applicants (the secondary applicants) applied as secondary visa applicants on the basis that they are each a member of the family unit of the applicant.
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.
The delegate refused to grant the visas 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 Interpreting qualification completed by the applicant is closely related to the applicant’s nominated skilled occupation of Developer Programmer (ANZSCO Code 261312) as required. As regards the second and third-named applicants, it followed that the delegate was not satisfied that they each were a member of the family unit of a person, the applicant, who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the visa as required by cl 485.311 as regards the secondary applicants.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 9 April 2019.
The applicant appeared before the Tribunal on 5 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal observes that at times the applicant spoke directly to the Tribunal and at times the interpreter interpreted the applicant’s evidence, including on a number of occasions when the Tribunal sought to have the interpreter intervene to ensure that the Tribunal fully understood the applicant’s evidence. The Tribunal is satisfied that it heard a fulsome account of the applicant’s evidence by benefitting from the interpreter’s assistance in this regard as required.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which criteria include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations.
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.
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.
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 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.
‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 1.03, 1.15F, 2.26AC(6) and cl 485.111).
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.
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
The applicant listed the following Australian study in her visa application (unedited):
Diploma of   UTS Insearch   10/02/14 to 28/05/15
Information Technology
Bachelor of Science in            University of Technology Sydney         27/07/15 to 27/11/17
Information Technology
Advanced Diploma of             Sydney Institute of Interpreting and      18/12/17 to 15/07/18
Translating  and Translating
Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?
The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by reg 1.15F to be taken into account in establishing whether the Australian study requirement is met.
The Tribunal is satisfied and finds that the Diploma of Information Technology and the Advanced Diploma of Translating are diplomas as defined by reg 2.26AC(6) and can be taken into account. Further the Tribunal is satisfied that the Bachelor of Science in Information Technology is a degree as defined by reg 2.26AC(6) and can be taken into account.
Having regard to all evidence and material before it, including the Australian Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records, the Tribunal finds that the Diploma of Information Technology, the Bachelor of Science in Information Technology and Advanced Diploma of Translating 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 reg 1.15F(1)(a) is met.
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 reg 1.15F(1)(b) is met.
The Tribunal discussed with the applicant and her representative the academic duration of each course. The Tribunal noted that CRICOS shows that the Bachelor of Science in Information Technology was 156 weeks but because courses can change there did not seem to be current information on CRICOS as to the academic duration of the Diploma of Information Technology and the Advanced Diploma of Translating. The Tribunal requested that the applicant provide information showing the academic duration of these courses. That information was not provided; however, the Tribunal is satisfied that the Bachelor of Science in Information Technology and Diploma of Information Technology courses total at least 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 reg 1.15F(1)(c) and reg 1.15F(1)(d) are met in relation to these three courses together.
Based on records from the Department of Home Affairs (the Department), the Tribunal is satisfied that the applicant held visas authorising study at all relevant times. The Tribunal therefore finds that reg 1.15F(1)(e) is met.
As paragraphs (a) to (e) of reg 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.
The applicant’s most recently completed qualification was the Advanced Diploma of Translating, 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 15 July 2018, that is, within the period of six months immediately before the day of the visa application, 8 January 2019.
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?
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
The applicant nominated the skilled occupation of Developer Programmer, which is a skilled occupation specified in the relevant instrument.
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.
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 (Chawdhury); Kabir v MIAC [2010] FMCA 577 (Kabir); and Shafiuzzaman v MIAC [2011] FMCA 874 (Shafiuzzaman)).
(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).
In making the assessment, as discussed with the applicant and her representative at hearing, the Tribunal is required to consider the nature of the nominated occupation as determined by reference to the ANZSCO and is required to 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 and, further, that the Tribunal is required to objectively consider 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.
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’.
ANZSCO Unit Group 2613 Software and Applications Programmers states that the occupation of Developer Programmer has the following description and tasks:
UNIT GROUP 2613 Software and Applications Programmers
Software and Applications Programmers design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications.
Indicative Skill Level:
In Australia and Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree of higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal 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
·researching, concluding, analysing and evaluating system program needs
·identifying technology information and deficiencies in existing systems and association processes, procedures and methods.
·testing, debugging, diagnosing and correcting errors and faults in an applications programming language within testing protocols, guidelines and quality standards to ensure
·writing and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
·writing, updating and maintaining technical program, end user documentation and operational procedures
·providing advice, guidance and expertise in developing proposals and strategies for software design activities such as financial evaluation and costings for recommending software purchases and upgrades
·managing testing and automation of software and application deployments
·collecting and analysing operational metrics
·developing continuous improvement and continuous delivery strategies across system design and software development
·the creation and development of the tools required to support software and its management and security
·performing forensic analysis to identify anomalies or threats
·encryption and decryption
·identification and mitigation of risks that may affect the performance and security throughout the lifecycle of the product.
Occupations:
…
261312 Developer Programmer
Alternative Titles:
·Applications Developer
·ICT Developer
·ICT Programmer
Interprets specifications, technical designs and flow charts, builds, maintains and modifies the code for software applications, constructs technical specifications, including cyber security, from a business functional model, and tests and writes technical documentation.
Skill Level: 1
Specialisations
·Cyber Security Developer
·Database Developer
·Database Programmer (Systems)
·Network Programmer
·Software Developer
·Software Programmer
Certification of completion of the Advanced Diploma of Translating dated 15 July 2018 was provided to the Tribunal prior to the hearing.
During the course of the hearing, at the request of the Tribunal the applicant uploaded the Record of Results for the Advanced Diploma of Translating showing the following Units completed by her:
·Edit texts
·Analyse text types for translation of special purposes texts (LOTE-English)
·Quality assure translations
·Translate special purpose texts from English to LOTE
·Translate special purpose texts from LOTE to English
·Read and analyse special purpose English texts to be translated
·Read and analyse special purpose LTOE texts to be translated
·Demonstrate complex written LOTE proficiency in different subjects and cultural contexts
·Demonstrate complex written English proficiency in different subjects and cultural contexts
·Maintain and enhance professional practice
·Translate multimedia source material
·Apply codes and standards to professional judgement
·Negotiate translating and interpreting assignments
As discussed with the applicant at hearing, the Tribunal is satisfied and accepts that the Diploma of Information Technology and the Bachelor of Science in Information Technology courses are both qualifications which are closely related to the nominated skilled occupation of Developer Programmer.
The applicant’s evidence at hearing included that in her current employment she is writing, updating and amending an IT program and using the documents, operating, researching, analysing and evaluating the system used.

The applicant’s representative suggested to the Tribunal that it canvass with the applicant evidence about how the applicant’s skills are used in her current job as the representative, in her written submissions, has only given a general example of how the applicant uses her skills in her daily occupation and what sort of skills she will use in her future work. The Tribunal indicated that it is required to look at the nominated occupation, not the applicant’s current job. The Tribunal discussed that what it was wanting to consider was how the Advanced Diploma in Translating is connected to the occupation of Developer Programmer by reference to the information in the ANZSCO about the tasks for that occupation.
The Tribunal asked the applicant what the translating is and how that is related to the tasks of the Developer Programmer. The applicant said that when they get some requirements, they try to share some findings to the customers of her employing company then they can understand what they need. She tries to produce a report to help them understand. The Tribunal acknowledged that she might be required to anyalyse data and put together information and reports for customers and queried how the Advanced Diploma of Translating relates to that. The Tribunal asked what is being translated for the purpose of these reports. The applicant said they tried to help people without IT background to understand the reports. The applicant said that when she is doing the data integration, that her company has a Chinese website and an English website and there are some words where it is easy for there to be a misunderstanding by customers. As she learnt translating, she knows that it is easy to have a misunderstanding. The Tribunal asked whether the applicant was talking about translating between English and Chinese. The Tribunal asked whether that was before her current job/ employer had customers or had interests in China or with people in China or a Mandarin speaking background. The Tribunal discussed that that be the basis upon which the Advanced Diploma of Translating might be related to the applicant’s current job but what the Tribunal has to consider is not that, but rather whether the Advanced Diploma of Translating is closely related to the nominated occupation, having regard to the ANZSCO.
Going to the ANZSCO, the Tribunal queried where in the tasks set out in the ANZSCO for a Developer Programmer, provided by the applicant’s representative, it can be demonstrated that the qualification is closed related to that occupation. The applicant said that when collecting the data and analysing the data, that leads to a better understanding of the requirements when there are misunderstandings. The Tribunal asked why the misunderstanding happens and whether it was because of the difference between the English and Chinese languages. The applicant said they need to know what our customers need and what they are looking for so the communication is a very important process. While they are collecting all the data and the information, they often encounter jargon in the IT area and by improving her translating skills this can help her to better understand her IT knowledge. The Tribunal asked whether the applicant was saying that she was not just talking about translating English to Chinese but also translating more technical IT jargon for customers. The applicant responded that her translating skills are essential to when they do the programming language and also the data analysing. The Tribunal asked which translating skills the applicant was referring to – translating from English to Mandarin or something beyond that. The applicant responded that it is mainly the switch between the two languages, English and Mandarin, because when you are operating software, they usually have a speech/language recognition. Most of the software nowadays not only has the English version but also the Chinese version and it requires the translation. The Tribunal noted that that may be because the applicant was currently working in a job which has Chinese links but queried whether that would be the case if the applicant was working in a different Developer Programmer job without those links and whether that would be needed. The applicant responded that there is loads of information that you have to translate by yourself and it helps a lot.
The Tribunal discussed with the applicant that it considered it needed to understand more about the actual qualification, the Advanced Diploma of Translating and queried whether a transcript of subjects or the like had been provided. The applicant’s representative indicated that only the graduating certificate had been provided. The Tribunal indicated it was difficult to undertake the analysis required by the Tribunal without the transcript of the subjects. The Tribunal advised that it had gone to the website for the institution where the applicant undertook the Advanced Diploma of Translation, as shared by video with the applicant and her representative at the hearing. It suggests that for that qualification you have do four core units and eight elective units but that there was no evidence before the Tribunal of which the applicant had done. The applicant’s representative indicated that a record of what subjects the applicant had done could be provided to the Tribunal. The Tribunal adjourned the hearing in order to enable the applicant to provide the transcript of subjects undertaken by the applicant.
The Tribunal discussed with the applicant and her representative that whilst it may be valuable for the applicant to have translating skills in relation to her particular job at the moment where it is valuable in that job to have bilingual skills, the Tribunal’s concern was that those skills were not required for the Developer Programmer occupation normally. The Tribunal noted that in raising that concern it had had regard to the cases of Dhillon and Constantino and the discussion in those cases of what exercise has to be undertaken in looking at the issue of ‘closely related’. The Tribunal provided the applicant’s representative with the citations for those cases (sharing the citations by video) to consider during the adjournment.
Following the adjournment, the Tribunal asked whether there was additional evidence sought to be provided, including having had regard to the case authorities.
The applicant said that her main job as Developer Programmer is maintaining and updating systems and that the system is used to collect global data and the document is in Chinese and she needs to find the useful information and translate it and put it in to their system so she can analyse it and their company then can, based on that, analyse the information to do better business. The applicant said that most of the time their companies will require the Developer and Programmer to collect data and store the information and analyse the data globally. When queried as to which data, the applicant responded that they mainly source the data from websites globally and that the data from companies from European countries is in English but for most of the Chinese companies, she has to translate for them.
The Tribunal asked whether the applicant was saying that every Developer Programmer needs to have the skills to translate between Chinese and English. The applicant said that was not necessarily so but because she obtained that skill, it helped the company and assisted her in her job.
The Tribunal again repeated that it was not looking at her particular job but at the nominated occupation of Developer Programmer. The applicant responded that for a small size business they may be able to do it locally without a language barrier and can do it purely in English but that most large size associations require the global database information analysed and resourced and she obtained the translation skills which helps the company translate the IT jargon accurately and she can then put the precise language straight away in to the database.
The Tribunal asked whether the ‘IT jargon’ is in Chinese or Mandarin. The applicant responded that it is in both Mandarin and English. The Tribunal asked whether that was the case in any Developer Programmer job. The applicant responded that for Chinese companies it is all Chinese language based and that is why they required translation. The Tribunal again noted that that is for the applicant’s job specifically with her specific employer rather than what the law requires the Tribunal to consider.
The Tribunal noted, by way of comparison, that her academic record for the Bachelor of Science in Information Technology shows that the applicant did a number of subjects: ‘Introduction to Data Analytics’; ‘Data Based Programming’; and ‘Information Systems Development Methodology’; that is a number of subjects done in that qualification that when one then looks at the tasks or duties suggested in the ANZSCO for the nominated occupation of Developer Programmer, a direct correlation can be seen between those types of subjects in the Bachelor of Science in Information Technology degree and the tasks and duties in the ANZSCO for the nominated occupation. The Tribunal noted that it was wanting to similarly understand how the subjects, or the qualification, in the Advanced Diploma of Translating are closely related to the nominated Developer Programmer occupation by looking at the ANZSCO rather than the particular job the applicant is currently doing.
The Tribunal queried whether as part of the Advanced Diploma of Translating she gained skills not just in relation to translating, for example in translating between Mandarin and English but also perhaps in a more general sense about communicating and translating in any type of language, including perhaps computer language, to people who are not familiar with that language. The applicant responded ‘yes’ and said that when she does the programming it is more like a computing language translation.
The Tribunal discussed with the applicant’s representative that one way at looking at the issue is that someone without an Advanced Diploma of Translating could still be a Developer Programmer but that someone without a Bachelor degree or some sort of qualification in IT probably couldn’t be. The applicant’s representative submitted that both are necessary to be a Developer Programmer. The Tribunal asked why that was. The applicant responded that in Australian IT companies, they are doing data collection from overseas and they are outsourcing this to China because they do not know how to deal with it. The Tribunal asked where the evidence was before it that data collection is being done overseas and that computer programming is reliant upon the Chinese or Mandarin data. The Tribunal noted that the applicant’s representative could not provide evidence and asked what evidence was being relied upon in this regard. The Tribunal asked whether the submission was being made that no-one could be a Developer Programmer in Australia unless they had an Advanced Diploma of Translating. The applicant’s representative said ‘no’ but what the Developer Programmer actually creates is a database and they do the research globally and when it comes to the Greater China area, most of the data is in Chinese so that when a company is dealing with this sort of data they need to outsource this, but with an employee with an Advanced Diploma of Translating they do not need to outsource this part of the job because the local employee, the applicant, can complete this work. She can do the developer programming, can do the data analysis, build the system, generate and analyse all the reports to report to the team manager to let them make decisions. The Tribunal noted that it could accept all of that and that the applicant with an Advanced Diploma of Translating would make the applicant more valuable to her employer, however, noted that that is not the issue to be determined by the Tribunal, but whether the qualification is closely related to the nominated occupation. The applicant’s representative said that it is not about making the applicant more valuable to the company because the skill is closely related to the job, not just to this job and this certain company but in Australia the companies that normally have the position of Developer Programmer, most of them have international dealings and online payment systems and therefore this qualification is closely related to the nominated occupation. She submitted that the skills must be used in a person’s actual work and are not just about making her curriculum vitae look better. The Tribunal repeated that the test is not whether the qualification is used in the applicant’s daily work but whether the qualification is closely related to the nominated occupation. The applicant’s representative referred to Unit Group 5 in the ANZSCO: ‘writing and maintaining program code to meet system requirements, system designs and technical specification in accordance with quality accredited standards’ and ‘writing, updating and maintaining technical program, end user documentation and operational procedures’ and ‘collecting and analysing operational metrics’ is exactly what the applicant has just spoken about and she could not do that unless she had the translation skills so that she could do the data analysis and generate the report. The Tribunal again asked whether the applicant’s representative was submitting that if someone did not have the translating qualification they could not do those tasks. She responded that they could do it but they would be limited. The applicant’s representative said that one cannot just look at the subject name but has to look at what is actually done. The applicant has given evidence of what the actual work looks like. She said the qualification is directly used in this occupation.
The Tribunal queried whether it was understood that the Tribunal has to look at the content of the qualification and has to assess it against the tasks in the ANZSCO. The Tribunal suggested that it allows the applicant’s representative further time to address that after the hearing, including allowing regard to be had to the case law referred to by the Tribunal. The Tribunal also referred the applicant’s representative, that may be of assistance, to the cases of Chawdhury, Kabir and Shafiuzzaman noting the requirement to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails.
The Tribunal stated that it held a concern that the Advanced Diploma of Translating was not closely related to the nominated occupation having regard to the ANZSCO and wanted to allow the applicant full opportunity to address its concerns. The Tribunal checked with the applicant’s representative whether she understood the Tribunal’s concerns. The applicant’s representative confirmed that she understood the concerns.
In addition to the applicant’s evidence at hearing and the oral submissions at hearing, the Tribunal took into account written submissions received, the relevant parts of which can be summarised as below.
19 April 2019 submissions
The applicant’s representative’s written submissions included that the delegate’s decision incorrectly referred to the most recent qualification completed by the applicant prior to the visa application as being a Diploma of Interpreting when it was in fact an Advanced Diploma of Translating, with the Diploma of Interpreting subsequently undertaken between 20 August 2018 and 17 March 2019. As discussed with the applicant and her representative at hearing, it is not the role of the Tribunal to consider the conduct of the Department or to review the delegate’s decision. Rather the Tribunal’s role is to consider the matter afresh on merits review. The Tribunal is satisfied on the evidence before it that it was an Advanced Diploma of Translating that was completed by the applicant on 15 July 2018 prior to the date of the visa application. The Tribunal therefore considered whether an Advanced Diploma of Translating is closely related to the applicant’s nominated skilled occupation as required.
26 November 2021 submissions
The applicant’s representative’s written submissions refer to the Department’s Policy Guidelines (PAM) in January 2019 stating as follows:
The delegate should focus on the objective tasks of the nominated skilled occupation… In other words, if the primary applicant’s coursework does not provide skills that will actually be used in the nominated occupation, scrutiny needs to be given to viewing them as closely related.
The written submissions include as follows:
Based on the task description stated in ANZSCO, the tasks of Unit 2613 and 261313 Developer Programmer include “testing, debugging, diagnosing and correcting errors and faults in an applications programming language within established testing protocols, guidelines and quality standard”, “writing and maintaining technical program, end user documentation and operational procedures”, “providing advice, guidance and expertise in developing proposals and strategies for software design activities”, “developing continuous improvement and continuous delivery strategies across system design”, “interpret specifications, technical designs and flow charts”, “builds, maintains and modifies the code for software applications”, and “constructs technical specifications, including cyber security, from a business functional, and tests and writes technical documentation”.
The current PAM also suggested that:
When weighing up whether a qualification is closely related to a nominated occupation, officers must not confine themselves to looking at entry level tasks’ whole of career opportunities must be considered.
The written submissions address why the translating qualification is closely related to (the occupation of) Developer Programmer as follows (unedited):
When Mrs Yingying SHI studied the professional year program in Performance Education, she was required to complete a three-months’ internship before graduate. She was arranged to work in the IT team of a student accommodation company, and she nearly sued the translation skill in her actual work everyday.
For example, when Mrs Yingying SHI started her internship, she found that the misleading information and inaccurate translation was set in the auto-reply emails and online chat. The company didn’t outsource the system programming parts related to foreign language to overseas IT companies, as the result there were numerous errors in languages that they used, but they didn’t realise these mistakes. Mrs Yingying SHI figured out the system did not be set correctly in Chinese part and there were some misleading information show to their clients so that the marketing team found some difficulties in contacting with Chinese background students and parents. She directly reported this issue to her leader and manager, and the manager asked her to correct all inaccurate translation through their company operation system, online booking system, user manual and international multi-currency online payment system.
Another example was that Mrs. Yingying SHI assisted the company in setting and managing an official Wechat subscription account on Chinese platform to promote the business and services to the region of Great China, and she was in charge of managing, updating, maintaining the subscription platform and creating the database of followers on Wechat to analyse clients’ preferences, background, etc. The owner and her manager were so satisfied with Mrs Yingying SHI’s performance and would like to offer her a position in IT department.
From the experience of Mrs. Yingying SHI, we can clearly see that the translating skill is DIRECTLY USED in this occupation and it’s related to the job tasks of developer programmer. This skill is not for better communication, but for completing the job tasks and improve the working efficiency of the whole company.
9 December 2021 submissions

With reference to caselaw, the post hearing written submissions included:
Based on above mentioned cases, the key points of determining whether the qualification is closely related to the nominated occupation are:
ü The relationship between the qualification and the nominated occupation must be “more than merely complementary”.
ü The qualification on a whole is related to the whole of nominated occupation, and the substantial proportion of the skills acquired from the qualification are skills that form part of the skillset to complete the tasks of the nominated occupation.
The submissions then continued as follows (without footnotes):
D. Advanced Diploma of Translating & Developer Programmer
The Nominated Occupation
The nominated occupation Developer Programmer (261312) is described in ANZSCO as:
“Interprets specifications, technical designs and flow charts, builds, maintains and modifies the code for software applications, constructs technical specifications, including cyber security, from a business functional model, and tests and writes technical documentation.”
The general information of Unit Group 2613 Software and Application Programmers is demonstrated as:
“Software and Applications Programmers design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications.”
The illustrated tasks of this Unit Group are:
a.researching, consulting, analysing and evaluating system program needs
b.identifying technology limitations and deficiencies in existing systems and associated processes, procedures and methods
c.testing, debugging, diagnosing and correcting errors and faults in an applications programming language within established testing protocols, guidelines and quality standards to ensure programs and applications including technical security controls perform to specification
d.writing and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
e.writing, updating and maintaining technical program, end user documentation and operational procedures
f.providing advice, guidance and expertise in developing proposals and strategies for software design activities such as financial evaluation and costings for recommending software purchases and upgrades
g.managing testing and automation of software and application deployments
h.collecting and analysing operational metrics
i.developing continuous improvement and continuous delivery strategies across system design and software development
j.the creation and development of the tools required to support software and its management and security
k.performing forensic analysis to identify anomalies or threats
l.encryption and decryption
m.identification and mitigation of risks that may affect the performance and security throughout the lifecycle of the product.
It is obvious that the main tasks under ANZSCO 261312 are included in tasks of 2613 Unit Group, and each task of this Unit Group has close connection with others.
The Qualification
The translating course completed by Mrs. Yingying SHI was PSP60814 Advanced Diploma of Translating provided by Sydney Institute of Interpreting and Translating (SIIT). The course description shown on website is
“This qualification covers the competencies required to translate special purpose texts from one language to another, to convey information written using specific terminology for a specific audience in functionally equivalent translated texts that are accurate and appropriate to the context, target audience and end use.
The Advanced Diploma of Translating prepares translators to translate texts where there may be significant equivalence problems between source and target text, the subject of the text has its own specific terminology, or there is need to undertake extensive research and translate complex language and concepts.”
According to the academic transcript, Mrs. Yingying SHI studied 13 units to complete this qualification. Units completed are:
· CUAWRT401 Edit texts
· PSPTIS060 Analyse text types for translation of special purpose texts (LOTE-English)
· PSPTIS061 Quality assure translations
· PSPTIS062 Translate special purpose texts from English to LOTE
· PSPTIS063 Translate special purpose texts from LOTE to English
· PSPTIS064 Read and analyse special purpose English texts to be translated
· PSPTIS065 Read and analyse special purpose LOTE texts to be translated
· PSPTIS067 Demonstrate complex written LOTE proficiency in different subjects and cultural contexts
· PSPTIS068 Demonstrate complex written English proficiency in different subjects and cultural contexts
· PSPTIS069 Maintain and enhance professional practice
· PSPTIS071 Translate multimedia source material
· PSPTIS100 Apply codes and standards to professional judgement
· PSPTIS101 Negotiate translating and interpreting assignments
The Qualifications & The Nominated Occupation
There is no doubt that the skills gained from the Bachelor course in Information Technology are closely related to the nominated occupation as the applicant equips with skills in programming and technology, which engages in the works as a Developer Programmer. It’s critical to prove that the Advanced Diploma of Translating is closely related to the occupation Developer Programmer.
Based on the description of the qualification and the academic transcript, the translating course provides the applicant the language skills and practical skills in analysing the structure of different languages (PSPTIS060 & PSPTIS062 & PSPTIS063 & PSPTIS064 & PSPTIS065 & PSPTIS067 & PSPTIS068), concentrating the most accurate information and wordings (PSPTIS061 & PSPTIS064 & PSPTIS065 & PSPTIS067 & PSPTIS068 & PSPTIS071), utilising a wide range of tools for appropriately searching information and having clear understandings and sense of significant information or data from overseas (PSPTIS062 & PSPTIS063 & PSPTIS069, PSPTIS067 & PSPTIS068) and dealing with the elimination of discrimination and misleading information on sources or materials coming from different regions and cultural background (PSPTIS061 & PSPTIS069).
In fields of application programming, system programming, or database developing (Task a, Task d, Task e, Task g, Task i – Unit Group Description on Page 3 & 4), the projects or products, such as Fintech application, global securities trading platform or tourism booking system or digital business portal, that the developer programmer built up must satisfy the demands of clients and end-users on specific areas. The developer programmer must make sure that the interface, installation, and executive system is designed and programmed in an understandable and non-misleading way for end-users located in various areas and are from a wide range of education or cultural background to operate so that the system or application would be rated as the easily manipulated and user-friendly products that fulfill their needs. The programmer with skills from translating qualification can consider the wording used in his or her programming and coding language and manage the wording of documentations like user manual or services terms from the perspective of clients or end-users, as the result the end-user would not make operation mistakes or feel affronted or suspend the service when using the application or system due to misunderstanding the meanings of words shown on the interface.
In addition, the tasks of conducting the application or system testing and debugging and diagnosing the deficiency are other areas that the developer programmer should complete (Task b, Task c, Task d, Task g, Task i – Unit Group Description on Page 3 & 4). The purpose of testing is to find out if the system, application, or website could be working well under numerous circumstances. For instance, the programmer needs to know whether the application could be installed properly through stores in different regions, or if the interface and format still looked well when the user change to a different operating system(IOS vs Android, MAC vs Microsoft, etc.) or other languages or other currencies. Once the bugs are detected it’s the responsibility of the developer programmer to fix the problems and maintain the functions of the system or application that could run in good conditions. The developer programmer can test and figure out the deficiencies without extra assistance in interchange the systems among different App stores, regions, and languages, to fixing the issues and correcting the font and format by using both accurate languages and programming languages.
Furthermore, there has been a growing trend that database programming and analysing played a vital role in the IT industry all over the universe, in respect of database development, the programmer developers require to complete the tasks (Task a, Task d, Task e, Task g, Task i – Unit Group Description on Page 3 & 4) through a comprehensive processing from data collection, data analysis, to reports preparation. The scope of the database is typically facing the whole world, so the programmer shoulders the responsibility in researching and collecting information and data worldwide, abstracting valuable or valid data, inputting the data collected to database storage, analysing data stored, and generating reports or advice to senior managers or clients. In general, the contents of reporting or advice included performance assessment, business trend forecast, potential competitors, and customer behavior. The programmers with translating qualification have the skills to analyse different language structures, acknowledge the meaning of resources and materials through suitable tools, and then pick up the most valuable and relevant data and information they need so that they can collect the most valuable or significant data by themselves after getting access to resources in different languages and databases all over the world. Meanwhile, the database could be updated promptly as the changing of resources will be easily noticed by programmers with language skills who are more sensitive to words changes. By doing so, other duties in the database area will carry out and accomplish properly.
Lastly, another component of occupation task is enhancing the cyber security and system risk management (Task a, Task f, Task h, Task j, Task h, Task I, Task m – Unit Group Description on Page 3 & 4). Cyber-attacks are typically from everywhere even by any person in this world. Another common phenomenon is that employees download software or browse websites from overseas sources that should forbid at the workplace by taking the disadvantages of the company system in detecting languages other than English. The programmers with skills from translating qualification who have a sense of foreign languages could prevent and stop the national and global suspicious activities or threats and set an alert of high risk by setting high-risk words or keywords in multi-languages in the system to prevent not allowed internal activities within the business entities.
As stated above, the qualification in translating is not merely helpful to the occupation. The translating skill is naturally involved in and integrated into the skills for completing the tasks on ANZSCO. No matter in which sector the applicant will work in the future, or whatever title she will work in, the applicant obtains the skillset for completing all tasks of Software of Application Programmer from beginning to the end without seeking help from outsourcing teams. The skillset is formed by information technology, along with the translating qualification. The skills from both qualifications work together to make the applicant competent working as a Developer Programmer.
E Conclusion
To sum up, the skills obtained from the qualification of Advanced Diploma of Translating directly form the skillset for the applicant to independently accomplish every task described in ANZSCO under the unit group 2613 and occupation 261312 Developer Programmer in the whole IT industry, and this qualification as a whole is not merely complementary or just helpful to promote the employment ability in the future or only useful in certain circumstance.
Given these circumstances, we submit that the Advanced Diploma of Translating as a whole is closely related to Developer Programmer so that Mrs. Yingying SHI meets the criteria of “Australia Study Requirement” for the granted of Subclass 485 Visa.
At hearing, the Tribunal discussed a number of matters with the applicant, including that the issue to be determined is not whether the Advanced Diploma of Translating might be useful to her in her nominated occupation, or whether it might be of assistance to her with her future aspirations or whether it is closely related to her current employment, but rather whether each of the qualifications are ‘closely related’ to the nominated skilled occupation.
Having identified the description and tasks information in the ANZSCO in relation to the occupation of Developer Programmer, including having had regard to the tasks described in Unit Group 2613 as canvassed earlier in these Reasons, the Tribunal also had regard to the higher hierarchies of which Unit Group 2613 forms a part, that is Minor Group 261 Business and Systems Analysts and Programmers and Sub-Major Group 26 ICT Professionals as follows:
MINOR GROUP 261 BUSINESS AND SYSTEMS ANALYSTS, AND PROGRAMMERS
BUSINESS AND SYSTEMS ANALYSTS, AND PROGRAMMERS work with users to formulate system requirements, develop system plans and documentation, review and evaluate existing systems, and design and modify systems to meet users' business needs, create audiovisual applications, and develop, test and maintain code for computer applications and web sites.
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. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal 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 identifying, formulating and documenting user ICT requirements
o providing advice, guidance, expertise and assistance in the system project decision making process and in the development of system proposals and strategies
o 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
o testing, debugging, diagnosing and correcting problems to ensure acceptable quality and integrity of the system, and that programs and applications perform to specification
o designing and developing digital animations, imaging, presentations, games, video clips, and Internet applications using multimedia software, tools and utilities, interactive graphics and programming language
26 ICT Professionals
ICT PROFESSIONALS perform analytical, conceptual and practical tasks which support the efficient and secure provision of information and communication technology (ICT) services to government, commercial and industrial organisations, and individuals.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this sub-major group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience and/or relevant vendor certification may substitute for the formal 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 developing and documenting strategies, policies and procedures relating to the use of ICT technologies and services
o 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
o assessing the performance of ICT technologies and services, identifying limitations and inefficiencies, and recommending and implementing solutions
o providing troubleshooting and service support in diagnosing, resolving and correcting problems associated with the use of ICT technologies and service
The Tribunal also had regard to the highest hierarchy of which Unit Group 3513 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 NZ Register 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
The Tribunal has had regard to the descriptions and tasks of all the hierarchies with the Major Group within which the nomination occupation falls, some of which are relevant to the occupation of Developer Programmer such as ‘analysing, planning, developing and implementing programs and solutions to resolve business and economic problems’. However, notably, some are not, such as, ‘advising clients on legal matters’ are clearly not. The Tribunal has considered the relevant parts of ANZSCO as a whole in identifying and applying information which is relevant to an understanding of the whole of the nominated occupation of Developer Programmer.

The Tribunal has considered the actual subjects studied in the Advanced Diploma of Translating course by the applicant, and objectively considered the relationship of those subjects to the ANZSCO definition of Developer Programmer. In doing so the Tribunal read ANZSCO as a whole, including looking at the whole of the applicant’s studies compared with the whole of the nominated occupation.
The Tribunal considered each of the subjects in the Advanced Diploma of Translating against the specific duties for the nominated occupation and occupations in the same Unit Group as well as for the higher hierarchies.
The Tribunal is satisfied that skills from the ‘Edit texts’ and ‘Demonstrate complex written English proficiency in different subjects and cultural contexts’ subjects undertaken by the applicant for the Advanced Diploma of Translating qualification would assist with and therefore be connected to or related to tasks identified in ANZSCO for the nominated occupation having regard to all of relevant hierarchies in ANZCO including the following tasks:
·constructing technical specifications and testing and writing technical documents (tasks specified under 261313 Developer Programmer),
·writing and maintaining program code and writing and, updating and maintaining program technical program, end user documentation and operational procedures (tasks included under Unit Group 2163 Software and Applications Programmers),
·developing and documenting strategies, policies and procedures (specified under Minor Group 261)
·communicating ideas through language, printed and electronic media (specified under Major Group 2 Professionals)
The Tribunal is also satisfied that the subject ‘Translate multimedia source material’ would assist with and be connected to or related to tasks identified in ANZSCO for the nominated occupation having regard to all of relevant hierarchies in ANZCO including the following tasks:
·encryption and decryption (task specified under 261313 Developer Programmer),
·communicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts (specified under Major Group 2 Professionals)
The Tribunal considered the subjects ‘Maintain and enhance professional practice’ and ‘Apply codes and standards to professional judgment’ are subjects that would be complementary to and of value to any professional occupational, and would assist generally with professional occupations having regard to the description of such under Major Group 2 Professionals which includes ‘perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience ….’.
In the Tribunal’s assessment the other subjects undertaken by the applicant for the Advanced Diploma of Translating, being:
·Analyse text types for translation of special purpose texts (LOTE-English);
·Quality assure translations;
·Translate special purpose texts from English to LOTE;
·Translate special purpose texts from LOTE to English;
·Read and analyse special purpose English texts to be translated;
·Read and analyse special purpose LOTE texts to be translated;
·Demonstrate complex written LOTE proficiency in different subjects and cultural contexts; and
·Negotiate translating and interpreting assignments’,
by reference to ANZSCO are not related to the types of tasks of a nominated occupation of Developer Programmer, but rather are related to occupations in which duties might include tasks requiring translating from one language to another and in particular to and from languages other than English (LOTE). The Tribunal accepts that computer code or the like is a type of language but is not satisfied that that is a language that is contemplated by reference to LOTE.
The Tribunal has had regard to the submission that ‘In fields of application programming, system programming, or database developing seen in ‘(Task b, Task c, Task d, Task g, Task i - Unit Group Description)[2] … the developer programmer built up must satisfy the demands of clients and end-users on specific areas…’. Notably Task b, c, d, g and I, adopting the numbering in the 9 December 2021 written submissions, are as follows:
b. identifying technology limitations and deficiencies in existing systems and associated processes, procedures and methods
c. testing, debugging, diagnosing and correcting errors and faults in an applications programming language within established testing protocols, guidelines and quality standards to ensure programs and applications including technical security controls perform to specification
d. writing and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
g. managing testing and automation of software and application deployments
i. developing continuous improvement and continuous delivery strategies across system design and software development
[2] Utilising the references used in the 9 December 2021 submissions
The Tribunal accepts as submitted that a programmer with skills from a translating qualification can consider the wording used in their programming and coding language from the perspective of clients or end-users but is not satisfied that that amounts to subjects of this nature or skills gained from subjects of this nature being closely related to the duties of the nominated occupation of Developer Programmer.
The Tribunal also had regard to the submission as regards Task b, Task c, Task d, Task g, Task i - Unit Group Description)[3] (see above) that the programmer may need to know whether the application could be installed properly through stores in different regions, or if the interface and format still work when changing to a different operating system and or other languages or other currencies and that a developer programmer with translating skills may therefore not need to have extra assistance to do this. However, the Tribunal does not consider this supports that the Advanced Diploma of Translating qualification is closely related to the nominated occupation.
[3] Utilising the references used in the 9 December 2021 submissions
The Tribunal also had regard to the submission that ‘there has been a growing trend that the database programming and analysing played a vital role in the IT industry all over the universe, in respect of database development, the programmer developers require to complete the tasks (Task a, Task d, Task e, Task g, Task I – Unit Group Description[4] …) through a comprehensive processing from data collection, data analysis, to reports preparation.’ and the submission that ‘programmers with translating qualifications have the skills to analyse different language structures …’ as submitted. However, again, the Tribunal does not consider supports that the Advanced Diploma of Translating qualification is closely related to the nominated occupation.
[4]
The Tribunal has also had regard to the submission in relation to the occupation task description as ‘including cyber security’ and system risk management and the tasks of ‘Task a, Task f, Task h, Task j, Task k (sic), Task l, Task m - Unit Group’[5], namely:
a. researching, consulting, analysing and evaluating system program needs
f. providing advice, guidance and expertise in development proposals and strategies for software design activities such as financial evaluation and costings for recommending software purchases and upgrades
h. collecting and analysing operational metrics
j. the creation and development of the tools required to support software and its management and security
k. performing forensic analysis to identify anomalies of threats
l. encryption and decryption
m. identified and mitigation of risks that may affect the performance and security throughout the lifecycle of the product
[5] Utilising the references used in the 9 December 2021 submissions
The Tribunal accepts as submitted that ‘programmers with skills from translating qualification who have a sense of foreign languages could prevent and stop the national and global suspicious activities or threats and set an alert of high risk by setting high-risk words or keywords in multi-languages in the system to prevent not allowed internal activities within the business entities’ but it does not follow that the studies undertaken for the Advanced Diploma of Translating are closely related to the nominated occupation of Developer Programmer and the Tribunal is not so satisfied on this basis.
The Tribunal is satisfied from analysing the qualifications and the relevant tasks for the whole of the occupation of Developer Programmer that some of the skills acquired from the Advanced Diploma of Translating course are related to or connected with some of the tasks of the nominated skilled occupation of Developer Programmer. The Tribunal accepts, as already canvassed, that skills gained in ‘Edit texts’, ‘Demonstrate complex written English proficiency in different subjects and cultural contexts’, ‘Maintain and enhance professional practice’, ‘Translate multimedia source material’ and ‘Apply codes and standards to professional judgement’ subjects are related to and complementary to tasks of Developer Programmers as identified in the ANZSCO. The Tribunal accepts that overall skills of the kinds acquired in undertaking the specified subjects for the Advanced Diploma of Translating would be of assistance, useful to or complementary to undertaking many jobs, particularly those involving the use of languages other than English, and particularly as is currently the case, in the applicant’s current employment where an integral part of her employer’s client base are apparently customers from a Chinese background. However, as discussed with the applicant at hearing, the assessment is not an assessment as against an applicant’s current employment but rather as against the nominated occupation having regard to ANZSCO. Further, to be closely related, something more than ‘merely complementary (Constantino)’ is required and the Tribunal is not satisfied, having regard to the subjects individually and as a whole and the tasks of the nominated occupation individually and as a whole (including by reference to all relevant hierarchies in ANZSCO) that the Advanced Diploma of Translating qualification is closely related to the occupation of Developer Programmer.
It follows that cl 485.222 is not met in relation to the Advanced Diploma of Translating qualification undertaken by the applicant.
Conclusion
In conclusion therefore, the Tribunal is only satisfied that the Diploma of Information Technology and Bachelor of Science in Information Technology qualifications are closely related to the nominated skilled occupation of Developer Programmer but not the Advanced Diploma of Translating. Clause 485.222 is therefore only met in relation to the Diploma of Information Technology and Bachelor of Science in Information Technology qualifications. As neither the Diploma of Information Technology nor Bachelor of Science in Information Technology qualifications were completed in the six months immediately before the date of the visa application, 8 January 2019, cl 485.221 cannot be met.
On the basis of the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
Secondary applicants
The Tribunal must also affirm the decision not to grant the secondary applicants Subclass 485 visas as they do not meet the secondary visa criterion requiring them to each be a member of the family unit of a person who holds a Subclass 485 visa (cl 485.311), and there is no evidence that they meet the primary visa criteria for this subclass in their own right.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Susan Trotter
Member

[2022] AATA 1682

22 April 2022

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