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

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).
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.
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.
The applicant appeared before the Tribunal on 17 July 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had provided a copy of the delegate’s decision to the Tribunal with his application.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Suarez Ardila (Migration) [2020] AATA 3341
Case: [2020] AATA 3341
Decision Date: 12 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream, lodged by Mr. Suarez Ardila. The core dispute concerned whether the applicant satisfied the Australian study requirement and, crucially, whether the courses he completed in Australia were closely related to his nominated occupation of Industrial Engineer.

The Tribunal was required to determine if the applicant met the criteria under clauses 485.221 and 485.222 of Schedule 2 to the Migration Regulations. Specifically, it needed to assess whether the applicant had satisfied the Australian study requirement in the six months prior to his visa application and whether his qualifications, namely a Diploma of Project Management and an Advanced Diploma of Project Management, were closely related to the occupation of Industrial Engineer as defined by ANZSCO and Engineers Australia.

The Tribunal reasoned that the applicant's Diplomas in Project Management were closely related to the occupation of Industrial Engineer. It noted that the Institute of Engineers refers to project execution based on engineering principles, and the applicant's courses enabled him to perform more effectively in this regard. Furthermore, the Tribunal considered that several tasks listed in the ANZSCO description for Industrial Engineer, such as organisation, work units, labour, analysis, workers and efficiency, and quality control, were directly applicable to project management. The Tribunal also took into account information from Engineers Australia's MSA Booklet, which indicated that knowledge of contextual factors impacting the engineering discipline includes an awareness of business and enterprise management fundamentals, and the structure, roles, and capabilities of the engineering workforce, all of which are relevant to project management.

Consequently, the Tribunal found that the applicant met the requirements of clauses 485.221 and 485.222. The matter was remitted to the Minister for reconsideration of the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.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 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. 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. 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. On 21 June 2018, Engineers Australia provided the applicant with accreditation that his Columbian degree in Engineering met the AQF Australian standard. 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. 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 organisationii.The work unitsiii.Labouriv.Analysisv.Workers and especially efficiencyvi.Quality control and maintain testing of materials 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. 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

Decision

Reasons for decision

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 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 AMMember

Ratio Decidendi

Legal Principle Established

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