Suarez Vera (Migration)

[2022] AATA 1225

Suarez Vera (Migration) [2022] AATA 1225 (16 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anderson Joselyn Suarez Vera

REPRESENTATIVE:  Mr Jorge Gamba (MARN: 1805594)

CASE NUMBER:  1933335

HOME AFFAIRS REFERENCE(S):          BCC2019/4330476

MEMBER:Jade Murphy

DATE:16 February 2022

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; and

·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 16 February 2022 at 4:40pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Industrial Engineer – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application– qualification ‘closely related’ to the nominated occupation – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, 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 6 November 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 August 2019. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however, that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualifications used to satisfy the Australian study requirement, namely a Diploma of Project Management and Advanced Diploma of Program Management are closely related to his nominated occupation of Industrial Engineer (ANZSCO 233511).

4. The applicant appeared before the Tribunal on 16 December 2021 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the six months immediately before the day the visa application was made (cl 485.221) and secondly, that each degree, diploma, or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222). The issue in the present case is whether the applicant meets those requirements.

   Does the applicant meet the Australian study requirement?

8. 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 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 two 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.

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

10. As evidenced by the applicant’s certificates of completion submitted to the Tribunal on review, the Tribunal is satisfied that the applicant has completed the following qualifications:

    • Diploma of Project Management from the Universal Institute of Technology commenced 3 July 2017, completed 2 October 2018; and
    • Advanced Diploma of Program Management from the Universal Institute of Technology commenced 6 August 2018, completed 13 August 2019. 

11. Clause 485.221 requires the qualifications to be relied on to satisfy the Australian study requirement be completed within six months immediately before the day the application is made. Together, both courses were completed within six months immediately before the day the application was made as the applicant’s Advanced Diploma of Program Management was completed on 13 August 2019 and the applicant applied for this visa on 30 August 2019.

12. Both qualifications further satisfy the Australian study requirement as they are registered courses (course codes BSB51415 and BSB61218) completed at a CRICOS registered institution (CRICOS codes 02946M).

13. The qualifications were completed in a total of at least 16 calendar months and as the result of at least two academic years of study.

14. The completion certificates issued from the education providers further confirm that each qualification was conducted in English.

15. In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.

16. Based on the above, the Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.

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

17. In addition, cl 485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the Minister as a skilled occupation; and, if several points are specified in the instrument as being available — for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument LIN 19/051.

18. In this case, the applicant nominated the occupation of Industrial Engineer (ANZSCO 233511) which is a skilled occupation specified in LIN 19/051.

19. As set out in the delegate’s decision, the delegate was not satisfied that the applicant’s Diploma of Project Management and Advanced Diploma of Program Management were closely related to his nominated occupation of Industrial Engineer. The delegate looked at the job description for the nominated occupation and reproduced the ANZSCO description in their decision. The delegate noted that there were no project management activities included in the ANZSCO description for Industrial Engineer. Although the delegate noted that a Diploma of Project Management and Advanced Diploma of Program Management could assist the applicant’s future career plan, this was not enough to satisfy the delegate that they were ‘closely related’ to the nominated occupation.

20. At hearing, the Tribunal noted the applicant’s written submissions but asked the applicant whether he would like to respond further to the delegate’s concerns in this regard.

21. The applicant responded that any engineering projects are structured in stages and phases and to get the optimal outcome each stage requires organisation of all facets of the project to deliver the project according to the relevant standard, budget, and timeframe. The applicant agreed with the ANZSCO description of an Industrial Engineer’s duties but explained that the description of the duties such as ‘design, organise and oversee the construction, operation and maintenance of mechanical and process plant and installations’ and ‘establish programs for the coordination of manufacturing activities and ensure usage of resources is cost effective’ centres around project and program management. The Tribunal takes a different view to that of the delegate on this point and is persuaded by the applicant’s explanation of the position description of an Industrial Engineer and finds that all engineering tasks are projects.

22. The Tribunal queried whether project and program management duties were more relevant for executive and managerial engineering roles, and not the purview of ordinary engineers on a day-to-day basis. If this were the case, the Tribunal might consider it to be relevant to the applicant’s future career progression, but not to the current nominated position. It was submitted on behalf of the applicant that all engineers manage projects, but managerial engineers manage other engineers. The Tribunal accepts this distinction and is persuaded by the explanation given in response to this concern.  

23. The Tribunal queried why the project management skills were not included in a standard engineering degree if they were so fundamental to the role of an Industrial Engineer. The applicant replied that he learned the basic techniques and project management principles, but that the project management qualifications equipped him with more comprehensive skills such as applying the project management principles, for example how to apply them and at which stage of the project to apply them. The applicant gave the Tribunal examples, such as costing and submitted that he had learned about costing in his engineering degree, in particular what techniques and methods are used to do this. However, the applicant said that the project and program management qualifications taught him at which stage of the project these costing methods and techniques should be applied to deliver the best outcome for all stakeholders. The Tribunal finds this a particularly persuasive submission. The applicant was able to articulate how the technical knowledge obtained in his engineering degree were transformed into practical skills with his project management qualifications that enabled him to better apply his engineering knowledge in the day-to-day duties of an Industrial Engineer. The Tribunal places favourable weight on this.

24. The Tribunal notes the applicant’s written submissions provided on review that details each of the applicant’s units studied to obtain his Diploma of Project Management and Advanced Diploma of Program Management and how they relate to the key skills set out in the competency standards for engineering professionals as set out by the assessing authority, Engineers Australia. The Tribunal accepts the submissions made in this regard and places favourable weight on them.

25. The Tribunal further places favourable weight on the applicant’s submission that an engineer is a project manager, and although not all project managers are engineers, almost all engineers are project managers. The applicant’s agent told the Tribunal it was the ‘natural progression’ of an engineer and referred the Tribunal to three Tribunal decisions in which the Members had found that project or program management skills were core skills and more than just complementary to the occupation of an engineering professional. In particular, the applicant’s agent referred the Tribunal to the Tribunal decision of Pico Meneses (Migration) [2020] AATA 6070 in which Member Smidt found at paragraph 16 ‘it is clear from the relevant ANZSCO entry that a key responsibility of all engineer professionals is project management’. The Tribunal notes it is not bound by these Tribunal decisions, however, has considered the decisions in those cases and finds them factually similar. Based on the evidence and submissions before this Tribunal in this case, the Tribunal has come to the same finding, using similar rationale, that the position description of an Industrial Engineer as set out in the ANZSCO and in current job advertisements, prescribes that an Industrial Engineer has project or program management skills to be able to perform the role at any level.

26. Based on the above findings, the Tribunal is satisfied that the applicant’s qualifications used to satisfy the Australian study requirement, namely a Diploma of Project Management and an Advanced Diploma of Program Management are more than merely complementary to the nominated occupation of Industrial Engineer. As discussed above, the Tribunal is satisfied that all engineering tasks are structured as projects and as such, a necessary skill for a professional engineer is project or program management.

27. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl 485.222.

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

    DECISION

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

    ·cl 485.221 of Schedule 2 to the Regulations; and

    ·cl 485.222 of Schedule 2 to the Regulations.

    Jade Murphy
    Member