Tiradentes Leonel Filho (Migration)

Tiradentes Leonel Filho (Migration) [2023] AATA 804 (3 January 2023)
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ricardo Tiradentes Leonel Filho
CASE NUMBER:  1929795
HOME AFFAIRS REFERENCE(S):          BCC2019/3885300
MEMBER:Warren Stooke AM
DATE:3 January 2023
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 3 January 2023 at 9:19am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Engineering Technologist – Australian study requirement – Diploma of Leadership and Management – whether qualification ‘closely related’ to nominated occupation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222
CASES
Talha v Minister for Immigration and Border Protection [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 2 October 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 6 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the Certificate IV and Diploma of Leadership and Management were not closely related to the occupation of Engineering Technologist – ANZSCO Code: 233914.
The applicant appeared before the Tribunal on 13 December 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that the decision was because the courses in the Australian Certificate IV of Leadership and Management; the Diploma of Project Management and Diploma of Leadership and Management were not closely related to the occupation (Engineering Technologist – ANZSCO Code: 233914).
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 cl 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222). The issue in the present case is whether the applicant meets those requirements.
The applicant is a 35 year old from Brazil, who was granted a Bridging Visa A on 6 August 2019, which became effective when his Student (Temporary) Visa ended on 14 August 2019. The visa has condition 8501 that requires the applicant to maintain health insurance.
The applicant provided evidence that he completed a Bachelor of Environmental Engineering (2008-2013) and a Master of Infrastructure of Sanitation (2015-2016) at PUC in Campinas in Brazil.
The applicant provided evidence of the completion of the following courses of study in Australia:
a.Diploma of Project Management, Envirotech Institution, Burleigh Heads (CRICOS Code: 03586M) from 7 April 2017 to 20 October 2017 with a certificate of completion issued on 7 November 2017;
b.Certificate IV in Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 103962D) from 27 November 2017 to 15 June 2018 with a certificate of completion issued on 29 June 2018;
c.Diploma of Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 104204A) from 13 August 2018 to 14 June 2019 with a Certificate of completion issued on 20 June 2019.
The applicant provided evidence of undertaking a PTE English language test on 11 December 2018 with a score of 75.
The applicant provided evidence of maintaining health insurance with Nib that commenced on 15 August 2018.
The applicant provided evidence from Engineers Australia of a successful competency test on 9 October 2018 of having met the requirements of an Engineering Technologist - ANZSCO Code: 233914.
The applicant provided evidence of an invitation from the Department of Home Affairs dated 30 June 2020 to apply for a 491 (SNR) points visa. The applicant stated that he had attended interviews, however, progression was affected by his current visa situation.
The applicant stated at hearing that he is currently working in manufacturing of fast charges for electrical vehicles based on a PCV, which is related to his applied engineering job of Engineering Technologist.
The applicant stated that he is paid $30.00 per hour.
The following ANZSCO descriptor applies to the nominated occupation of Engineering Technologist – ANZCO Code: 233914:
UNIT GROUP 2339 OTHER ENGINEERING PROFESSIONALS

This unit group covers Engineering Professionals not elsewhere classified.
It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ).
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher 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).

Registration or licensing may be required.
Occupations:
233911 Aeronautical Engineer
233912 Agricultural Engineer
233913 Biomedical Engineer
233914 Engineering Technologist
233915 Environmental Engineer
233916 Naval Architect (Aus) / Marine Designer (NZ)
233999 Engineering Professionals nec

233914 ENGINEERING TECHNOLOGIST

Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. Registration or licensing may be required.
Skill Level: 1
Specialisations:
Aeronautical Engineering Technologist
Agricultural Engineering Technologist
Biomedical Engineering Technologist
Chemical Engineering Technologist
Industrial Engineering Technologist
Mining Engineering Technologist
The applicant provided a submission to the Department on 15 August 2019, as follows:
“My objective is to apply all the knowledge that I gained from those courses to find a job full-time in Australia as an Engineer Technologist. This knowledge will be used to give new insights to increase productivity in the execution of projects and management of people and employees, increase the capacity to accomplish them in a shorter time, lower cost and optimize their qualities towards the clients besides contributing for a better co-existence between the partners and employees of the type of company I wish to develop those skills.
I graduated in Environmental and Sanitary Engineering at PUC in Campinas in December 2013, and postgraduate in Basic Sanitation Infrastructure in 2016.
Along with two partners I worked as project manager in our environmental consulting company, where we carry out projects for topography, environmental licensing and sanitation (water supply, effluent treatment and desalination), where we had a social contract from May 2014 to July 2017. By now, I intend to develop these closely related skills from my previous job and the courses that I have done, especially in a regional area in this country.”
The Tribunal asked the applicant to explain why he considered the courses undertaken in Australia to be ‘closely related’ to the nominated occupation of Engineering Technologist – ANZCO Code: 233914 and the applicant provided the following responses:
a.As an engineer the job requires leadership and project management and that projects related to water treatment plants requires leadership of people; organisation and delegation of roles;
b.As a Project Manager, the applicant has worked in waste water treatment, where there is a need to consider accommodation; payment; strategy; personnel roles and equipment and that he does not see any reason why Project Management and Leadership and Management are not closely related;
c.An Engineering Technologist always needs to consider certain obligations and planning.
The applicant stated that he was advised by the NSW Government re s48 regarding an update of his status against a backlog of 2 years.
On 2 December 2022, the applicant provided the following submission to the Tribunal:
“Department of Industry, Science and Resources of Australian Government mentions that Engineering technologists analyse, modify, test and apply new and existing engineering technologies to solve complex issues in consultation with engineers. Engineering technologists have similar training to engineers, but with a focus on practical applications. Engineers design things, and then engineering technologists build them. They also design the processes and systems involved in producing or manufacturing the final product. Building and testing prototypes is a key part of the role, as is managing the production process and upgrading and customising equipment.
Engineering technologists often have management responsibilities, such as supervising staff and planning the roster. They need good communication skills in order to prepare and submit proposals to management. Cost analysis and the ability to interpret data are essential for running projects efficiently. Engineering technologists also need strong mathematical and drafting skills in order to draw blueprints for new technologies.”
Does the applicant meet the Australian study requirement?
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.
‘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: (IMMI 09/040).
The Tribunal is satisfied that the courses of study undertaken by the applicant were with registered organisations in an approved CRICOS course for a period that exceeded 16 months in at least two academic years of course study through instruction in the English language whilst the holder of a student visa. In this regard, the Tribunal is satisfied that the following courses of study have met the ‘Australian study requirement’:
a.Diploma of Project Management, Envirotech Institution, Burleigh Heads (CRICOS Code: 03586M) from 7 April 2017 to 20 October 2017 with a certificate of completion issued on 7 November 2017;
b.Certificate IV in Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 103962D) from 27 November 2017 to 15 June 2018 with a certificate of completion issued on 29 June 2018;
c.Diploma of Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 104204A) from 13 August 2018 to 14 June 2019 with a Certificate of completion issued on 20 June 2019.
The applicant has also provided evidence that he was provided with a successful skills assessment by Engineers Australia on 9 October 2018 based upon the undergraduate and post graduate courses of study undertaken for the nominated occupation of Engineering Technologist – ANZCO Code: 233914.
Accordingly, cl 485.231(1) is met.
Is the qualification ‘closely related’ to the nominated occupation?
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.
In this case, the applicant nominated the occupation of Engineering Technologist, which is a skilled occupation specified in IMMI 13/065 of the Register of Instruments - Skilled visas.
The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for an Engineering Technologist – ANZCO Code: 233914, is satisfied that the courses of study undertaken by the applicant, in the broader context of the Engineering Technologist occupation can be viewed as ‘closely related’. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:
“[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.

(Emphasis added).
The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”
The Tribunal is satisfied that the applicant has undertaken courses of study that are closely related to the occupation of an Engineering Technologist – ANZCO Code: 233914 because the subject modules in the Leadership and Management courses and Project Management course undertaken by the applicant have included a significant component of People, Work and Organisations; Organisational Finance; Human Resource Management, and Safety and Risk Management, which the Tribunal regards as inextricably linked to the occupation of an Engineering Technologist – ANZCO Code: 233914 when applying their professional skills in the workplace and thereby ‘closely related’ for the purposes of cl 485.222. The Tribunal accepts that a contemporary Engineering Technologist not only requires technical skills to perform in the occupation, but also has to lead and manage other personnel in the execution of engineering projects and activities, which interfaces with a broad scope of people, finance and organisational disciplines.
The Tribunal is satisfied that the Minor Group 233 Engineering Professionals states 'ENGINEERING PROFESSIONALS' design, plan and organise the testing, construction, installation and maintenance of structures, machines and their components, and production systems and plants, and plan production schedules and work procedures to ensure engineering projects are undertaken efficiently and in a cost effective manner. Moreover, tasks under this minor group include:
·   planning and designing engineering projects
·   organising and managing project labour and the delivery of materials, plant and equipment
·   estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control
On this basis, the Tribunal is satisfied that the substantial part of the content of the Leadership and Management courses and Project Management course, specifically undertaken by the applicant and as described in evidence, are closely related to the nominated occupation of Engineering Technologist – ANZCO Code: 233914.
Given 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 applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations;
·cl 485.222 of Schedule 2 to the Regulations;
Warren Stooke AM
Member

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 2 October 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

The applicant applied for the visa on 6 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the Certificate IV and Diploma of Leadership and Management were not closely related to the occupation of Engineering Technologist – ANZSCO Code: 233914.
The applicant appeared before the Tribunal on 13 December 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that the decision was because the courses in the Australian Certificate IV of Leadership and Management; the Diploma of Project Management and Diploma of Leadership and Management were not closely related to the occupation (Engineering Technologist – ANZSCO Code: 233914).
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 cl 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl 485.222). The issue in the present case is whether the applicant meets those requirements.
The applicant is a 35 year old from Brazil, who was granted a Bridging Visa A on 6 August 2019, which became effective when his Student (Temporary) Visa ended on 14 August 2019. The visa has condition 8501 that requires the applicant to maintain health insurance.
The applicant provided evidence that he completed a Bachelor of Environmental Engineering (2008-2013) and a Master of Infrastructure of Sanitation (2015-2016) at PUC in Campinas in Brazil.
The applicant provided evidence of the completion of the following courses of study in Australia:
a.Diploma of Project Management, Envirotech Institution, Burleigh Heads (CRICOS Code: 03586M) from 7 April 2017 to 20 October 2017 with a certificate of completion issued on 7 November 2017;
b.Certificate IV in Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 103962D) from 27 November 2017 to 15 June 2018 with a certificate of completion issued on 29 June 2018;
c.Diploma of Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 104204A) from 13 August 2018 to 14 June 2019 with a Certificate of completion issued on 20 June 2019.
The applicant provided evidence of undertaking a PTE English language test on 11 December 2018 with a score of 75.
The applicant provided evidence of maintaining health insurance with Nib that commenced on 15 August 2018.
The applicant provided evidence from Engineers Australia of a successful competency test on 9 October 2018 of having met the requirements of an Engineering Technologist - ANZSCO Code: 233914.
The applicant provided evidence of an invitation from the Department of Home Affairs dated 30 June 2020 to apply for a 491 (SNR) points visa. The applicant stated that he had attended interviews, however, progression was affected by his current visa situation.
The applicant stated at hearing that he is currently working in manufacturing of fast charges for electrical vehicles based on a PCV, which is related to his applied engineering job of Engineering Technologist.
The applicant stated that he is paid $30.00 per hour.
The following ANZSCO descriptor applies to the nominated occupation of Engineering Technologist – ANZCO Code: 233914:
UNIT GROUP 2339 OTHER ENGINEERING PROFESSIONALS

This unit group covers Engineering Professionals not elsewhere classified.
It includes Aeronautical Engineers, Agricultural Engineers, Biomedical Engineers, Engineering Technologists, Environmental Engineers and Naval Architects (Aus) / Marine Designers (NZ).
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher 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).

Registration or licensing may be required.
Occupations:
233911 Aeronautical Engineer
233912 Agricultural Engineer
233913 Biomedical Engineer
233914 Engineering Technologist
233915 Environmental Engineer
233916 Naval Architect (Aus) / Marine Designer (NZ)
233999 Engineering Professionals nec

233914 ENGINEERING TECHNOLOGIST

Analyses and modifies new and existing engineering technologies and applies them in the testing and implementation of engineering projects. Registration or licensing may be required.
Skill Level: 1
Specialisations:
Aeronautical Engineering Technologist
Agricultural Engineering Technologist
Biomedical Engineering Technologist
Chemical Engineering Technologist
Industrial Engineering Technologist
Mining Engineering Technologist
The applicant provided a submission to the Department on 15 August 2019, as follows:
“My objective is to apply all the knowledge that I gained from those courses to find a job full-time in Australia as an Engineer Technologist. This knowledge will be used to give new insights to increase productivity in the execution of projects and management of people and employees, increase the capacity to accomplish them in a shorter time, lower cost and optimize their qualities towards the clients besides contributing for a better co-existence between the partners and employees of the type of company I wish to develop those skills.
I graduated in Environmental and Sanitary Engineering at PUC in Campinas in December 2013, and postgraduate in Basic Sanitation Infrastructure in 2016.
Along with two partners I worked as project manager in our environmental consulting company, where we carry out projects for topography, environmental licensing and sanitation (water supply, effluent treatment and desalination), where we had a social contract from May 2014 to July 2017. By now, I intend to develop these closely related skills from my previous job and the courses that I have done, especially in a regional area in this country.”
The Tribunal asked the applicant to explain why he considered the courses undertaken in Australia to be ‘closely related’ to the nominated occupation of Engineering Technologist – ANZCO Code: 233914 and the applicant provided the following responses:
a.As an engineer the job requires leadership and project management and that projects related to water treatment plants requires leadership of people; organisation and delegation of roles;
b.As a Project Manager, the applicant has worked in waste water treatment, where there is a need to consider accommodation; payment; strategy; personnel roles and equipment and that he does not see any reason why Project Management and Leadership and Management are not closely related;
c.An Engineering Technologist always needs to consider certain obligations and planning.
The applicant stated that he was advised by the NSW Government re s48 regarding an update of his status against a backlog of 2 years.
On 2 December 2022, the applicant provided the following submission to the Tribunal:
“Department of Industry, Science and Resources of Australian Government mentions that Engineering technologists analyse, modify, test and apply new and existing engineering technologies to solve complex issues in consultation with engineers. Engineering technologists have similar training to engineers, but with a focus on practical applications. Engineers design things, and then engineering technologists build them. They also design the processes and systems involved in producing or manufacturing the final product. Building and testing prototypes is a key part of the role, as is managing the production process and upgrading and customising equipment.
Engineering technologists often have management responsibilities, such as supervising staff and planning the roster. They need good communication skills in order to prepare and submit proposals to management. Cost analysis and the ability to interpret data are essential for running projects efficiently. Engineering technologists also need strong mathematical and drafting skills in order to draw blueprints for new technologies.”
Does the applicant meet the Australian study requirement?
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.
‘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: (IMMI 09/040).
The Tribunal is satisfied that the courses of study undertaken by the applicant were with registered organisations in an approved CRICOS course for a period that exceeded 16 months in at least two academic years of course study through instruction in the English language whilst the holder of a student visa. In this regard, the Tribunal is satisfied that the following courses of study have met the ‘Australian study requirement’:
a.Diploma of Project Management, Envirotech Institution, Burleigh Heads (CRICOS Code: 03586M) from 7 April 2017 to 20 October 2017 with a certificate of completion issued on 7 November 2017;
b.Certificate IV in Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 103962D) from 27 November 2017 to 15 June 2018 with a certificate of completion issued on 29 June 2018;
c.Diploma of Leadership and Management, English in Paradise, Surfers Paradise (CRICOS Code: 104204A) from 13 August 2018 to 14 June 2019 with a Certificate of completion issued on 20 June 2019.
The applicant has also provided evidence that he was provided with a successful skills assessment by Engineers Australia on 9 October 2018 based upon the undergraduate and post graduate courses of study undertaken for the nominated occupation of Engineering Technologist – ANZCO Code: 233914.
Accordingly, cl 485.231(1) is met.
Is the qualification ‘closely related’ to the nominated occupation?
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.
In this case, the applicant nominated the occupation of Engineering Technologist, which is a skilled occupation specified in IMMI 13/065 of the Register of Instruments - Skilled visas.
The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for an Engineering Technologist – ANZCO Code: 233914, is satisfied that the courses of study undertaken by the applicant, in the broader context of the Engineering Technologist occupation can be viewed as ‘closely related’. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:
“[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:
The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.

(Emphasis added).
The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”
The Tribunal is satisfied that the applicant has undertaken courses of study that are closely related to the occupation of an Engineering Technologist – ANZCO Code: 233914 because the subject modules in the Leadership and Management courses and Project Management course undertaken by the applicant have included a significant component of People, Work and Organisations; Organisational Finance; Human Resource Management, and Safety and Risk Management, which the Tribunal regards as inextricably linked to the occupation of an Engineering Technologist – ANZCO Code: 233914 when applying their professional skills in the workplace and thereby ‘closely related’ for the purposes of cl 485.222. The Tribunal accepts that a contemporary Engineering Technologist not only requires technical skills to perform in the occupation, but also has to lead and manage other personnel in the execution of engineering projects and activities, which interfaces with a broad scope of people, finance and organisational disciplines.
The Tribunal is satisfied that the Minor Group 233 Engineering Professionals states 'ENGINEERING PROFESSIONALS' design, plan and organise the testing, construction, installation and maintenance of structures, machines and their components, and production systems and plants, and plan production schedules and work procedures to ensure engineering projects are undertaken efficiently and in a cost effective manner. Moreover, tasks under this minor group include:
·   planning and designing engineering projects
·   organising and managing project labour and the delivery of materials, plant and equipment
·   estimating total costs and preparing detailed cost plans and estimates as tools for budgetary control
On this basis, the Tribunal is satisfied that the substantial part of the content of the Leadership and Management courses and Project Management course, specifically undertaken by the applicant and as described in evidence, are closely related to the nominated occupation of Engineering Technologist – ANZCO Code: 233914.
Given 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 applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations;
·cl 485.222 of Schedule 2 to the Regulations;
Warren Stooke AM
Member

[2023] AATA 804

3 January 2023

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