Suarez Ardila (Migration)

[2020] AATA 3341

Suarez Ardila (Migration) [2020] AATA 3341 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Juan Pablo Suarez Ardila

CASE NUMBER:  1835763

HOME AFFAIRS REFERENCE(S):         BCC2018/3299810

MEMBER:Warren Stooke AM

DATE:12 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 12 August 2020 at 4:22pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – courses closely related to occupation – courses in project management and occupation of industrial engineer – ANZSCO and Engineers Australia descriptions of occupation – 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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 November 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 August 2018. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.221 and cl.485.222 of Schedule 2 to the Regulations because the courses of study were not considered as closely related to the occupation of Industrial Engineer – ANZSCO Code: 233511.

4. The applicant appeared before the Tribunal on 17 July 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The applicant confirmed to the Tribunal that he had provided a copy of the delegate’s decision to the Tribunal with his application.

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 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

9. The applicant is a 28 year old from Columbia, who provided evidence that he completed a Bachelor Degree at the University de los Andes, Columbia in 2013 prior to arriving in Australia and has completed the following courses of study in Australia:

   oDiploma of Project Management from 18 July 2016 to 25 June 2017;

   oAdvanced Diploma of Project Management 24 July 2017 to 1 July 2018.

10. The applicant provided evidence that he was granted a Bridging Visa B on 17 December 2018, which has condition 8501 relating Health Insurance attaching to the visa.

11. On 21 June 2018, Engineers Australia provided the applicant with accreditation that his Columbian degree in Engineering met the AQF Australian standard.

12. The applicant provided evidence that he was working in a café as the head barista and manager pre-Covid 19, which included planning, rostering and managing the financials.

13. The Tribunal asked the applicant to explain how the Diplomas in Project Management were ‘closely related’ to the occupation of Industrial Engineer – ANZSCO Code: 233511 and the applicant stated:

    a.The Institute of Engineers refers to roles to be able to carry out projects based on engineering principles and that the courses undertaken enable the applicant to perform more effectively;

    b.ANZSCO includes Group 2, 3 and 5 include 9 different tasks and 5 are directly applicable areas relating to Engineering, include:

    i.The organisation

    ii.The work units

    iii.Labour

    iv.Analysis

    v.Workers and especially efficiency

    vi.Quality control and maintain testing of materials

14. The applicant provided evidence that he was previously a teacher assistant in the subject area of logistics and with team projects at the University de los Andes, Columbia and he subsequently worked with a company in logistics and production. He stated that 9 or 10 projects he worked upon provided tools regarding the importance of projects within industry.

15. The applicant provided evidence from Engineers Australia of information contained in their MSA Booklet of March 2020, concerning Units of Elements and Competencies, at page 32, where it states under the subject heading: ‘PE 1.5 Knowledge of contextual factors impacting the engineering discipline’, the following:

    “a) Identifies and understands the interactions between engineering systems and people in the social, cultural, environmental, commercial, legal and political contexts in which they operate, including both the positive role of engineering in sustainable development and the potentially adverse impacts of engineering activity in the engineering discipline.

    b) Is aware of the founding principles of human factors relevant to the engineering discipline.

    c) Is aware of the fundamentals of business and enterprise management.

    d) Identifies the structure, roles and capabilities of the engineering workforce.

    e) Appreciates the issues associated with international engineering practice and global operating contexts”.

    Representative Submission

16. The representative made submissions that the applicant is required to deal with stakeholders and to deal with them effectively and in support of the applicant, prior to the hearing, the Representative provided the following statement:

    “There was a jurisdictional error that led to the wrong conclusion. The occupation, Industrial engineer, is part of the ANZSCO Unit group 2335. Industrial engineers share the same ANZSCO unit group with another two occupations, mechanical engineer and production engineer. Not all the tasks mentioned under the occupation ANZSCO unit group applies to the occupation - Industrial engineer. In the decision to refuse the visa, the ANZSCO tasks applicable to the nominated skilled occupation, Industrial engineer, were left out and the skills that resulted from the Australian studies were assessed against the duties that are relevant to the mechanical and production/plant engineer occupation. This assessment led to the conclusion that the skills developed from the Advanced Diploma of Program management were inconsistent with the Industrial engineer occupation in accordance to ANZSCO.

    Besides referring to the ANZSCO unit group 2335 when analysing the tasks of the nominated skilled occupation, the ANZSCO hierarchy of the occupation should also be considered. Industrial engineers are part of the ANZSCO Minor Group 233 Engineering professionals and part of their tasks include:

    • Organising and managing project labour and the delivery of materials, plant and equipment

    • Estimating total cost and preparing detailed cost plans and estimates as tools for budgetary control. Industrial engineers form part of the Major Group 2 Professionals and one of the relevant tasks under this Major Group include analysing, planning, developing and implementing programs and solutions to resolve business and economic problems.

    Since migration law does not define the “term closely related”, the interpretation mentioned in the Talha v Minister for Immigration and Border Protection [ [2015] FCAFC115 (25 august 2015) line 29, should be applied for this case. Based on the definition stated on the previous case, we submit that all or a substantial proportion of the skills acquired from the applicant's study in Australia constitute part of the skills set required to perform the nominated skilled occupation. Additional cases that have used the same interpretation include the tribunal case, LI (Migration) [2018] AATA 4297 (7 September 2018), and the Federal case Tobon v Minister for Immigration and Anor [2014] line 32.

    The law under clause 485 of the Regulations, does not require the applicant to have obtained a skills assessment on the basis of having completed an Australian qualification. Also, the law under clause 485.222 of the Regulations, requires the study program/s (e.g. diplomas) to satisfy the Australian and New Zealand Standard Classification of Occupations: Australian study requirement and to be closely related to the nominated skilled occupation. The Department policy supports these preceding statements by pointing out that “a positive skills assessment can be provided for the Graduate work-stream regardless of whether the qualification was completed in Australia or overseas. The applicant is still required to separately fulfil the Australian study requirement in a closely related field of study to their nominated occupation.” The applicant used the diplomas of project management and advanced diploma of program management to meet the Australian study requirement and to show that each of these diplomas is closely related to the nominated skilled occupation- Industrial engineer. This previous study combination is aligned with the Department examples of acceptable study combination. According to the Department policy, an acceptable study combination includes a person who nominated the skilled occupation, construction manager and used the Advanced Diploma of Building and Construction completed in Australia to satisfy the Australian study requirement and to show that this study is closely related to the nominated skilled occupation.

    In the tribunal case of Ramirez Moreno (Migration) [2019] AATA 5911 (19 December 2019) line 36, the tribunal has noted that the material from Engineers Australia focuses on the need for engineering professionals to have the capacity to manage projects and lead teams, to deal with stakeholders and communicate effectively. It notes that the engineer must be able to understand the requirement of clients, deal with a wide range of stakeholders and manage risk. The engineer must also be able to lead and manage teams appropriate to the activities of the given project.

    Engineers Australia classified Industrial engineers under the Professional engineer category and specifies that Professional engineers are required to take responsibility for engineering projects and programs in the most far-reaching sense (pages 49 and 31 of the Engineers of Australia booklet). For more information about this part, please refer to the provided document- study programs closely related to the nominated occupation.”

    Does the applicant meet the Australian study requirement?

17. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

    ·that are registered courses; and

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

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

    ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

18. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (LIN 19/085 of the Register of Instruments – Academic Year 2019).

19. The Tribunal is satisfied that the applicant completed a Diploma of Project Management on 25 June 2017 and an Advanced Diploma of Project Management on 1 July 2018, which is within the 6 month period prior to application on 31 August 2018.

20. Further, the Diploma of Project Management course and the Advanced Diploma of Project Management course, have a designated CRICOS Provider 01331F, which complies with the legislative instrument.

21. The Tribunal is satisfied that the Australian Study requirement, by combining the applicant’s most recent courses, has been met with a total of 106 weeks. In this regard, the Tribunal accepts that qualifications may be combined to meet the Australian study requirement, providing one of them was completed in the 6 months immediately preceding the date of the visa application, which in this case is the Advanced Diploma of Project Management at Australian Pacific College. As such, the applicant has completed at least 2 years of academic study in the English language, whilst holding an authorised visa.

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

23. Therefore, the applicant meets cl.485.221.

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

24. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 13/065 of the Register of Instruments - Skilled visas.

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

26. The Tribunal is satisfied that the applicant has undertaken courses of study that are closely related to the occupation of Industrial Engineer; ANZSCO 233511 because the subject modules in the project management courses undertaken by the applicant have included a significant component of People, Work and Organisations; Organisational Finance; Human Resource Management, which the Tribunal regards as inextricably linked to the occupation of Industrial Engineer - ANZSCO Code: 233511. In this regard, the tasks included in the ANZSCO 233511 descriptor for the occupation of Industrial Engineer, include:

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

    b.establishing work measurement programs and analysing work samples to develop standards for labour utilisation;

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

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

27. Further, the Tribunal is satisfied that the evidence from the Engineers Australia: MSA Booklet of March 2020 has identified the inextricable close relationship of the “interactions between engineering systems and people in the social, cultural, environmental, commercial, legal and political contexts in which they operate, including both the positive role of engineering in sustainable development and the potentially adverse impacts of engineering activity in the engineering discipline”. As such, the Tribunal is satisfied the applicant’s Diplomas in Project Management are closely related to the occupation of Industrial Engineer - ANZSCO Code: 233511.

28. In addition, the applicant’s Diploma of Project Management and Advanced Diploma of Project Management, as a relevant discipline, facilitates tasks included in the ANZSCO 233511 descriptor for the occupation of Industrial Engineer, are as follows:

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

    b.inspecting plant to ensure optimum performance is maintained;

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

    d.designing mechanical equipment, machines, components, products for manufacture, and plant and systems for construction;

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

29. As the applicant’s qualifications are closely related to the nominated skilled occupation, the applicant meets cl.485.222.

30. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member