UPADHYAY (Migration)
[2018] AATA 659
•16 March 2018
UPADHYAY (Migration) [2018] AATA 659 (16 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Dipen Shirishkumar UPADHYAY
CASE NUMBER: 1701002
DIBP REFERENCE(S): BCC2016/3966263
MEMBER:Katie Malyon
DATE:16 March 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 16 March 2018 at 1:23 pm
CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary graduate) – Nominated occupation – Developer Programmer – Satisfies the ‘Australian study requirement’ – Advanced Diploma in Marketing and his Advanced Diploma in Management qualifications – Not closely related to the nominated occupation
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15F, 2.26AC Schedule 2 cls 485.111, 485.221, 485.222, 486.222
Education Services for Overseas Students Act 2000 s 9CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 January 2017 to refuse to grant the applicant, Mr Dipen Shirishkumar Upadhyay, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
Mr Upadhyay applied for the visa on 24 November 2016 in the Graduate Work stream. 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). Mr Upadhyay nominated the occupation of Developer Programmer ANZSCO 261312 in his Subclass 485 visa application.
The delegate refused to grant the visa because Mr Upadhyay did not satisfy cl.485.221 and cl.486.222 of Schedule 2 to the Regulations on the basis that his Advanced Diploma of Network Security obtained from Pacific College of Technology (Pacific College) was completed on 6 December 2013, that is, more than 6 months prior to lodging his Subclass 485 visa application on 24 November 2016. Furthermore, Mr Upadhyay’s Advanced Diploma of Marketing from Elizabeth Bence trading as Duke College (Duke College) completed on 11 November 2016 and his Advanced Diploma of Management from Pacific College completed on 4 October 2015 are not closely related to his nominated occupation of Developer Programmer. A copy of the delegate’s decision was provided to the Tribunal.
Mr Upadhyay appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Upadhyay 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: first, have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and second, 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 Mr Upadhyay meets those requirements.
Prior to the hearing, Mr Upadhyay’s representative provided a detailed Submission addressing why he believes Mr Upadhyay’s Advanced Diploma of Marketing from Duke College is closely related to his nominated occupation of Developer Programmer.
At the hearing, Mr Upadhyay provided a number of documents including, relevantly, Academic Transcripts confirming subjects completed for each of his:
·Advanced Diploma of Marketing from Duke College completed 11 November 2016;
·Advanced Diploma of Management from Pacific College completed 4 October 2015; and,
·Advanced Diploma of Network Security from Pacific College completed 6 December 2013.
After the hearing, Mr Upadhyay’s representative provided a further Submission as discussed below.
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:
(a)that are registered courses; and,
(b)that were completed in a total of at least 16 calendar months; and,
(c)that were completed as a result of a total of at least 2 academic years study; and,
(d)for which all instruction was conducted in English; and,
(e)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 r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Part 485 of Schedule 2 of the Regulations. The term ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: r.1.15F(2) of the Regulations. For the purposes of this case, ‘2 academic years’ is specified by the Minister 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: IMMI 09/040.
Mr Upadhyay’s representative has provided the Tribunal with evidence of his completing an Advanced Diploma of Marketing from Duke College, an Advanced Diploma of Management from Pacific College and an Advanced Diploma of Network Security from Pacific College. In addition, the Department’s file contains evidence of his completing a Diploma of Information Technology at Central College on 15 September 2012.
Based on evidence set out on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that Mr Upadhyay’s more recent qualification – his Advanced Diploma of Marketing from Duke College - is registered for 30 weeks and that all instruction is in English. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years study - that is, at least 92 weeks of study consistent with IMMI 09/040 - the Tribunal finds that, relying on his Advanced Diploma of Marketing qualification alone, Mr Upadhyay does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day his Subclass 485 visa application was made on 24 November 2016 as required by cl.485.221 of Schedule 2 to the Regulations.
However, the ‘Australian study requirement’ does not require visa applicants to have completed a single course of study of 2 academic years’ duration. Accordingly, it is necessary to consider whether Mr Upadhyay can rely on his other qualifications to meet the ‘Australian study requirement’.
Details about the registered duration of the Advanced Diploma of Management from Pacific College are no longer available on the CRICOS website as the course has been replaced by an Advanced Diploma of Leadership and Management (which is registered for a period of 52 weeks). In the circumstances, the Tribunal contacted the Australian Skills Quality Authority (ASQA) for advice regarding the duration of the Advanced Diploma of Management at Pacific College undertaken by Mr Upadhyay. On 7 December 2017, ASQA advised the Tribunal in writing that an Advanced Diploma of Marketing from Pacific College was registered for 52 weeks. As such, Mr Upadhyay’s Advanced Diploma of Marketing and his Advanced Diploma of Management total 82 weeks. In the circumstances, it is necessary to consider the duration of his Advanced Diploma of Network Security from Pacific College. Based on evidence on the CRICOS website, the Tribunal finds that an Advanced Diploma of Network Security from Pacific College is registered for 52 weeks and that all instruction is in English.
Accordingly, the Tribunal finds that the 3 most recent registered courses undertaken by Mr Upadhyay, both at Duke College and Pacific College, have a total registered duration of 134 weeks, that is, in excess of 92 weeks. In the circumstances, it has not been necessary for the Tribunal to consider the duration of Ms Upadhyay’s Diploma of Information Technology from Central College.
Departmental records confirm that, during the period 3 March 2013 when Mr Upadhyay commenced his Advanced Diploma of Network Security at Pacific College and 11 November 2016 when he completed his Advanced Diploma of Marketing at Duke College, he was in Australia as the holder of Student visas authorising him to study in Australia.
Based on the evidence outlined above, the Tribunal finds that Mr Upadhyay satisfies the ‘Australian study requirement’ in the 6 months immediately preceding the date of his Subclass 485 visa application. Therefore, he meets cl.485.221 of Schedule 2 to the Regulations.
Is each qualification used to satisfy the Australian study requirement ‘closely related’ to the applicant’s nominated skilled occupation?
Clause 485.222 of Schedule 2 to the Regulations requires that each of the qualifications used to satisfy the ‘Australian study requirement’ must be ‘closely related’ to the applicant’s nominated skilled occupation.
Mr Upadhyay has nominated the skilled occupation of Developer Programmer ANZSCO 261312 which is a skilled occupation specified in the relevant legislative instrument IMMI 16/059. In order to meet the ’Australian study requirement’ in the 6 months immediately before the day the visa application was made, Mr Upadhyay must rely on his Advanced Diplomas of:
·Marketing completed 11 November 2016;
·Management completed 4 October 2015; and,
·Network Security completed 6 December 2013.
The issue, therefore, is whether each of these Advanced Diplomas is ‘closely related’ to his nominated skilled occupation of Developer Programmer.
The term ‘closely related’ is not defined in the Regulations. However, the term has been considered in a number of cases including the Full Federal Court of Australia’s decisions of MIBP v Dhillon[1] and Talha v MIBP[2] as well as the Federal Court of Australia’s decision in Constantino v MIBP.[3] 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:
·While the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between 2 things. And, although the words ‘closely related’ do not require an exact correspondence,[4] the relationship must be more than merely complementary.[5]
·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, 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.[6]
·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 (subjective) description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[7]
·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[8] 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.[9]
Accordingly, the Tribunal has been guided by these cases in its consideration of the issue presented in Mr Upadhyay’s case.
[1] (2014) 227 FCR 525.
[2] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.
[3] [2013] FCA 1301, Jacobson J.
[4] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33] quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].
[5] Uddin v MIAC [2010] FCA 1281, North J at [10] - [12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; and, MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].
[6] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].
[7] Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM at [48] – [67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to the nominated occupation.
[8] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53]
[9] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].
The Tribunal accepts that Mr Upadhyay’s Advanced Diploma of Network Security is closely related to his nominated occupation of Developer Programmer ANZSCO 261312. In this regard, the Tribunal notes Mr Upadhyay’s skills assessment issued by the Australian Computer Society (ACS) dated 18 April 2016 confirms that his positive assessment was based on both his Advanced Diploma of Network Security from Pacific College completed in November 2013 as well as his Bachelor of Computer Applications from Sadar Patel University (in Gujarat, India) completed in January 2008. Significantly, the ACS’s skill assessment makes no reference to Mr Upadhyay’s Advanced Diploma in Marketing or his Advanced Diploma in Management.
As noted above, the delegate found that Mr Upadhyay’s Advanced Diploma in Marketing was not ‘closely related’ to his nominated skilled occupation of Developer Programmer. The Tribunal discussed this issue with Mr Upadhyay at the hearing. His oral evidence is discussed below. In passing, the Tribunal notes that the delegate did not consider or comment on whether Mr Upadhyay’s Advanced Diploma in Management is ‘closely related’ to his nominated skilled occupation of Developer Programmer.
The Full Federal Court’s decision in Talha v MIBP notes that ANZSCO comprises a system of 5 hierarchies for classifying occupations. At the lowest level of this hierarchy, ANZSCO has a list of ‘Occupations’. There are 1,023 occupations listed in the current version of ANZSCO.[10] 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 8 ’Major Groups’.
[10] >
ANZSCO states that a Developer Programmer ‘interprets specifications, technical designs and flow charts, builds, maintains and modifies the code for software applications, constructs technical specifications from a business functional model, and tests and writes technical documentation’. Mr Upadhyay’s nominated occupation forms part of Unit Group 2613 Software and Applications Programmers. There are 5 occupations in Unit Group 2613: Analyst Programmer ANZSCO 261311, Developer Programmer ANZSCO 261312 (Mr Upadhyay’s nominated occupation), Software Engineer ANZSCO 261313, Software Tester ANZSCO 261314 and, finally, Software and Applications Programmers NEC ANZSCO 261399. Full details in relation to Unit Group 2613 are extracted in Annexure A to this decision. The ANZSCO description for Unit Group 2613 states that Software and Application Programmers ‘design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications’.
Unit Group 2613 forms part of a higher hierarchy called Minor Group 261 Business and Systems Analysts, and Programmers: full details are extracted at Annexure B. The ANZSCO description for Minor Group 261 states that 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 audio-visual applications, and develop, test and maintain code for computer applications and websites’.
Minor Group 261 in turn forms part of a higher Sub-Major Group 26, which is called ICT Professionals: full details are set out in Annexure C. The ANZSCO’s description for Sub-Major Group 26 states that 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’
The highest hierarchy within which Mr Upadhyay’s nominated occupation of Developer Programmer ANZSCO 261312 is Major Group 2 Professionals. There are 318 professional occupations listed in the current version of ANZSCO.[11] ANZSCO states Professionals ‘perform analytical, conceptual and creative tasks through the application of theoretical knowledge and expertise 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’: see extract at Annexure D for full details.
[11] Ibid
The Tribunal accepts that Mr Upadhyay’s Advanced Diploma in Network Security is closely related to his nominated occupation. Accordingly, the Tribunal has considered Mr
Upadhyay’s studies in marketing and management in some detail.
1)Advanced Diploma of Management
As noted above, Pacific College has replaced its Advanced Diploma of Management with an Advanced Diploma of Leadership and Management. Having reviewed Mr Upadhyay’s Academic Transcript and compared this with details of the subjects required to be undertaken for the new Advanced Diploma of Leadership and Management, the Tribunal notes 4 subjects have been added for the new course: corporate governance; developing a marketing plan; managing finances; and, developing OH&S procedures. In other respects, the subjects are identical.
Information available on the website of Pacific College in relation to the Advanced Diploma of Management and Leadership states that graduates will ’use initiative and judgement to plan and implement a range of leadership and management functions, with accountability for personal and team outcomes within broad parameters’.[12]
2)Advanced Diploma of Marketing
Information available on Duke College’s website describes the Advanced Diploma of Marketing as reflecting the role of individuals working as marketing directors, marketing strategists and national, regional or global marketing managers. It also notes individuals in these positions:
’provide leadership and strategic direction in the marketing activities of an organisation. They analyse, design and execute judgements using wide-ranging technical, creative, conceptual and managerial competencies. Their knowledge base may be highly specialised or broad within the marketing field. These individuals are often accountable for group outcomes and the overall performance of the marketing function of an organisation’.[13]
Documentation lodged with the Tribunal prior to the hearing
[12] type="1">
In a submission lodged with the Tribunal prior to the hearing, Mr Upadhyay’s representative made submissions regarding whether Mr Upadhyay’s Advanced Diploma of Marketing is closely related to the occupation of Developer Programmer ANZSCO 261312. He advised the Tribunal that Mr Upadhyay wants to open a business in software development, networking and website development including designing applications on various platforms such as Android and Apple. Further, he advised that Mr Upadhyay plans to develop his Search Engine Optimisation using Google Adwords and also plans to do business in association with Google and Facebook by providing solutions for the business once he develops software, applications or websites. The representative states that Mr Upadhyay’s marketing subjects will help him target specific audiences that his clients want to address to optimise maximum returns: as he has competency in the IT area, Mr Upadhyay’s marketing skills will help him target businesses and sell his IT products, solutions and grow his business with the help of his marketing skills. His marketing skills will give him a competitive edge.
Further, the representative submits that studying an Advanced Diploma of Marketing is ‘closely related’ to Mr Upadhyay’s nominated occupation because the skills acquired enhance transferable expertise, which is essential to every industry. The units studied assist graduates create a personal brand so they are better able to distinguish themselves from others in a competitive job market. This is especially so for ambitious graduates wanting to be promoted into management or those who desire to open their own business. Further, the Advanced Diploma of Marketing offers the opportunity to network with others of a commensurate skill level thereby facilitating the establishment of strong relations with the type of people Mr Upadhyay wants as employees or clients for the business that he intends to open.
Hearing
The Tribunal explained to Mr Upadhyay the requirements of cl.485.222 of Schedule 2 to the Regulations and noted that it must make an objective assessment of whether his qualifications in management and marketing are ‘closely related’ to his nominated occupation of Developer Programmer ANZSCO 261213 having regard to ANZSCO as a whole.
At the outset, the Tribunal noted that it accepts his Advanced Diploma in Network Security is closely related to his nominated occupation. This is evidenced by the fact that it is referred to in the ACS skill assessment. It also observed that ANZSCO does not incorporate what the publication describes as ‘generic employability skills’ because such skills are applicable to most occupations and therefore have limited value as classification criteria.[14] In this regard, the Tribunal notes that ANZSCO identifies 8 generic employability skills including: problem-solving skills that contribute to productive outcomes; enterprise skills that contribute to innovative outcomes; planning and organisation skills that contribute to short-term and long-term strategic planning; and, technology skills that contribute to the effective execution of tasks. Mr Upadhyay acknowledged the Tribunal’s observations in this regard.
[14] Australian Bureau of Statistics / Statistics New Zealand, ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, 2006, p. 814; >
The Tribunal questioned Mr Upadhyay as to whether, when he lodged his application for a skill assessment with the ACS for his nominated occupation of Developer Programmer, he provided evidence of completing his Advanced Diploma of Management and/or his Advanced Diploma of Marketing. Mr Upadhyay told the Tribunal that he lodged evidence of all his qualifications. In response to the Tribunal’s observation that the ACS assessment makes no reference to his qualifications in marketing or management, Mr Upadhyay explained that this was ‘because they were assessing his occupation as Developer Programmer ANZSCO 261312’. The Tribunal notes that following the hearing, Mr Upadhyay’s representative clarified that the ACS issued its skill assessment on 18 April 2016 and, accordingly, evidence of completion of Mr Upadhyay’s Advanced Diploma of Marketing on 11 November 2016 was not lodged with the ACS.
Asked to explain, objectively, why postgraduate studies in management and marketing were ‘closely related’, not just complementary, to the occupation of Developer Programmer, Mr Upadhyay told the Tribunal that, as a Developer Programmer, it is very important that he understand clients and their business so that he can deliver programming to meet their specific needs. He added that his study of management and marketing has helped him become aware it is not just a case of sitting behind a computer: this is especially so today as so much marketing is now done online. Mr Upadhyay believes that digital marketing is fundamental for any business that sells online and he can now do this as he understands the principles of how to attract people to a website. He told the Tribunal he knows what words to use as well as how to research and develop an online marketing plan. He also explained that, if he starts his own business, he will not have to employ someone to prepare a marketing plan for him or establish management compliance systems. Mr Upadhyay also gave the example of a friend who works selling IT products to large retailers who now market many products online, including food products which have a short lifespan.
Documentation received after the hearing
Mr Upadhyay ‘s representative provided a further submission after the hearing. In his submission, the representative specifically refers to the decision of the Full Federal Court in Talha v MIBP[15] referred to above and is of the view that ‘the decision in that case is very relevant as the facts are very similar’ because, like Mr Upadhyay, the applicant in Talha completed Diploma and Certificate level business courses and selected his occupation as Engineering Technologist. The Tribunal accepts there are some similarities in relation to the fact scenario considered in Talha. The principles enunciated by the Full Federal Court decision are outlined above at para [21]. However, Mr Upadhyay’s representative has omitted to acknowledge that, when the matter was remitted back by the Court to the Tribunal for consideration by a differently constituted Tribunal, the decision of the delegate was affirmed.[16]
[15] [2015] FCAFC 115
[16] 1513109 (Migration) [2016] AATA 4510
In his submission, the representative then considered the subjects undertaken by Mr Upadhyay for each of his Advanced Diplomas in marketing as well as management and compared the subjects with the tasks listed in ANZSCO’s Sub-Major Group 26 ICT Professionals (as set out in Annexure C) and ANZSCO’s Unit Group 2613 Software and Applications Programmers (as set out in Annexure A). The representative submits that there is a direct link between the subjects italicised below in paras [38] and [39] and the tasks of ANZSCO Sub-Major Group 26. In addition, he submits there is a direct link between the subjects underlined and the tasks of ANZSCO Unit Group 2613.
The subjects undertaken by Mr Upadhyay in his Advanced Diploma of Marketing and confirmed to the Tribunal in the Academic Transcript provided are:
·Develop organisational marketing objectives
·Manage the marketing process
·Manage market research
·Develop a marketing plan
·Plan and establish compliance management systems
·Manage innovation and continuous improvement
·Manage risk
·Develop and implement a business plan
Subjects undertaken by Mr Upadhyay in his Advanced Diploma of Management and confirmed to the Tribunal in the Academic Transcript provided are:
·Manage Risk
·Develop, implement and maintain WHS (work health and safety) management systems
·Develop and implement a business plan
·Develop and implement strategic plans
·Manage innovation and continuous improvement
·Provide leadership across the organisation
·Manage people performance
·Manage organisational change
In his submission, Mr Upadhyay’s representative states that there is a direct link between the
subjects italicised in paras [38] and [39] above and the tasks of the ANZSCO Sub Major Group 26 ICT Professionals which include:
odeveloping and documenting strategies, policies and procedures relating to the use of ICT technologies and services
oplanning, 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
oassessing the performance of ICT technologies and services, identifying limitations and inefficiencies, and recommending and implementing solutions
oproviding troubleshooting and service support in diagnosing, resolving and correcting problems associated with the use of ICT technologies and service.
The representative states that, as a Developer Programmer, it is very important for a programmer to understand the need (sic) of a client and the business and deliver programming to meet the specific needs, for example (sic) the client want (sic) an application to measure the current market trend or want (sic) to develop software for the business to minimise the average turnaround time to improve the (sic) customer service, this require (sic) planning and strategy to target the market with the use of ICT programming. Any programming start (sic) with identifying the needs of the client or a business, then making a business plan and develop (sic) a strategy to make sure that the programming or a software needs (sic) the client/business expectations. While (sic) understanding the subjects it (sic) will help to understand the actual outcome or the main object/s of the business. Without understanding of the need and objectives or the purpose of developing program (sic), website or software it will be completely useless. In the age of digital marketing and advertising it is very important for the developer programmer to understand the need and design the software, website or application to meet the client’s requirement. These skills are not complimentary but must have (sic) for any programmer.
Mr Upadhyay’s representative also submits that there is a direct link between the subjects underlined in paras [38] and [39] above and the tasks of the ANZSCO Unit Group 2613 Software and Applications Programmers which include:
oresearching, consulting, analysing and evaluating system program needs
oidentifying technology limitations and deficiencies in existing systems and associated processes, procedures and methods
otesting, 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 perform to specification
owriting and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
owriting, updating and maintaining technical program, end user documentation and operational procedures
oproviding 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.
The representative states that with the help of the knowledge of the subjects underlined above, it will play vital role for the applicant as to researching, consulting, analysing and evaluation of the program needs which will require a knowledge of how to develop and implement a business plan for the clients. With knowledge of business risk, it will help to identifying (sic) the key issues in cyber security and implement effective measures to ensure that the software is protected against any potential risk. With the knowledge of managing innovation and continuous improvement which will help to (sic) our client develop a new program code in accordance with the accredited standards and finally with the knowledge of planning and establishing management systems which include software will help the applicant o (sic) provide his advice guidance and expertise in developing proposals and strategies and provide expert advise (sic) on financial evaluation and costing of a (sic) recommending a particular software, app or website upgrade to improve efficiency and minimise cost to the business.
By way of concluding summary, the representative states that as the subjects studied by the applicant and task required by the ANZSCO shows direct link between the subjects studied as part of the study and are not supplementary, but is mandatory requirement for any developer programmer and therefore is a very direct link between them. This knowledge of the subject (sic) are very critical for his job as Developer programmer as the role of a programmer is to have a clear view of the end result of the programming and how it meets the employer/client needs.
Consideration of evidence
The Tribunal has had regard to the ANZSCO description for the nominated occupation of Developer Programmer ANZSCO 261312, being an occupation which ‘interprets specifications, technical designs and flow charts, builds, maintains and modifies the code for software applications, construct technical specifications from a business functional model, and tests and writes technical documentation. The tasks of a Developer Programmer are listed above in para [42]: see also Annexure A. The Tribunal has also had regard to the description of ANZSCO Unit Group 2613 which states that Software and Applications Programmers ‘design, develop, test, maintain and document program code in accordance with user requirements, and system and technical specifications’.
In addition, the Tribunal has considered ANZSCO’s description for Minor Group 261 which states that 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 audio-visual applications, and develop, test and maintain code for computer applications and websites’. It has also had regard to the tasks identified in ANZSCO Sub-Major Group 26 which describes ICT Professionals as performing ‘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’.
As noted above, information on the website of Pacific College states that Advanced Diploma of Management graduates will ’use initiative and judgement to plan and implement a range of leadership and management functions, with accountability for personal and team outcomes within broad parameters’. In addition, information available on the website of Duke College in respect of its Advanced Diploma of Marketing states graduates will be skilled to provide leadership and strategic direction in the marketing activities of an organisation on the basis that they will have skills to analyse, design and execute judgements using wide-ranging technical, creative, conceptual and managerial competencies. As such, the knowledge base may be highly specialised, or broad, within the marketing field. Graduates from Duke College with an Advanced Diploma of Marketing are often accountable for group outcomes and the overall performance of the marketing function of an organisation’.
The Tribunal accepts that Mr Upadhyay has specialist IT skills arising from his Bachelor of Computer Applications completed at Sardar Patel University in India as well as his Advanced Diploma of Network Security from Pacific College. It also accepts that, rising from his more recent management and marketing studies in Australia, he has a range of problem-solving skills, planning and organisation skills, learning skills that would contribute to ongoing improvement and expansion in an organisation’s operations and outcomes as well as technical skills that would contribute to the effective execution of tasks. Whilst these generic employability skills are not incorporated into ANZSCO – because, as noted above, they are applicable to most occupations and therefore have been recognised as having limited value for ANZSCO classification criteria - the Tribunal nonetheless accepts that Mr Upadhyay’s studies in marketing and management have significantly enhanced his skills in this regard. Should he wish to start his own business, the Tribunal recognises that the managerial and marketing skills acquired from his recent postgraduate studies in Australia in these areas would assist him in dealings with clients or customers. It also recognises that his managerial and marketing skills would be beneficial in carrying out some of his functions as a Developer Programmer.
In considering whether a qualification is ‘closely related’ to an applicant’s nominated occupation, the Tribunal is not undertaking an assessment of whether any skills obtained from a qualification would benefit the applicant or be useful in a particular business context. Rather, the Tribunal is required to objectively consider whether the qualification itself is ‘closely related’ to the nominated occupation having regard to ANZSCO as a whole.
Having carefully considered all of the evidence, the Tribunal does not accept that Mr Upadhyay’s Advanced Diploma in Marketing or his Advanced Diploma in Management are closely related to his nominated occupation of Developer Programmer ANZSCO 231612. The Tribunal accepts that, in a general sense, there is a complementary relationship between some of the course subjects undertaken by Mr Upadhyay in his Advanced Diploma studies outlined in paras [38] and [39] above and the tasks that a Developer Programmer performs. However, none of the tasks in ANZSCO Unit Group 2613, Minor Group 261 or Sub- Major Group 26 require ICT professionals to undertake tasks which are management related or which require marketing skills. It is not an objective requirement of the role of a Developer Programmer ANZSCO 231612 to undertake marketing or managerial tasks. Even at the highest level of the ANZSCO Sub- Major Group 26, ICT professionals perform analytical, conceptual and practical tasks which support the efficient and secure provision of ICT services to a range of organisations and individuals. The Tribunal accepts that, although the skills acquired by Mr Upadhyay’s following his postgraduate studies in management and marketing are related to his nominated occupation of Developer Programmer and will be useful in that occupation, it does not accept that, objectively, his 2 most recently completed courses in Australia are closely related to that occupation.
As the Tribunal has found Mr Upadhyay’s Advanced Diploma in Marketing and his Advanced Diploma in Management qualifications are not closely related to his nominated skilled occupation of Developer Programmer ANZSCO 231612, it follows that he does not meet cl.485.222 of Part 485 of Schedule 2 to the Regulations.
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 must be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Katie Malyon
MemberAnnexure A – Extract from ANZSCO Version 1.2
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 New Zealand:Most occupations in this unit 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:
oresearching, consulting, analysing and evaluating system program needs
oidentifying technology limitations and deficiencies in existing systems and associated processes, procedures and methods
otesting, 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 perform to specification
owriting and maintaining program code to meet system requirements, system designs and technical specifications in accordance with quality accredited standards
owriting, updating and maintaining technical program, end user documentation and operational procedures
oproviding 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
Occupations:
261311 Analyst Programmer
261312 Developer Programmer
261313 Software Engineer
261314 Software Tester
261399 Software and Applications Programmers nec
261311 ANALYST PROGRAMMERAlternative Title:
Programmer Analyst
Analyses user needs, produces requirements documentation and system plans, and encodes, tests, debugs, maintains and documents programs and applications.Skill Level: 1
261312 DEVELOPER PROGRAMMERAlternative 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 from a business functional model, and tests and writes technical documentation.Skill Level: 1
Specialisations:
Communications Programmer (Systems)
Database Developer
Database Programmer (Systems)
Network Programmer
Software Developer
Software Programmer
261313 SOFTWARE ENGINEERAlternative Titles:
Software Architect
Software Designer
Designs, develops, modifies, documents, tests, implements, installs and supports software applications and systems.Skill Level: 1
Specialisations:Computer Applications Engineer
Database Designer
Systems Architect
261314 SOFTWARE TESTER
Specifies, develops and writes test plans and test scripts, produces test cases, carries out regression testing, and uses automated test software applications to test the behaviour, functionality and integrity of computer software, and documents the results of tests in defect reports and related documentation.
Skill Level: 1
261399 SOFTWARE AND APPLICATIONS PROGRAMMERS NEC
This occupation group covers Software and Applications Programmers not elsewhere classified.Skill Level: 1
Occupations in this group include:No occupations have currently been identified for this residual category.
oOOo
Annexure B – Extract from ANZSCO Version 1.2
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 websites.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:oidentifying, formulating and documenting user ICT requirements
oproviding advice, guidance, expertise and assistance in the system project decision making process and in the development of system proposals and strategies
oidentifying 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
otesting, debugging, diagnosing and correcting problems to ensure acceptable quality and integrity of the system, and that programs and applications perform to specification
odesigning and developing digital animations, imaging, presentations, games, video clips, and Internet applications using multimedia software, tools and utilities, interactive graphics and programming language
This section contains the following subsection :UNIT GROUP 2611 ICT Business and Systems Analysts UNIT GROUP 2612 Multimedia Specialists and Web Developers UNIT GROUP 2613 Software and Applications Programmers oOOo
Annexure C – Extract from ANZSCO Version 1.2
SUB-MAJOR GROUP 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:odeveloping and documenting strategies, policies and procedures relating to the use of ICT technologies and services
oplanning, 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
oassessing the performance of ICT technologies and services, identifying limitations and inefficiencies, and recommending and implementing solutions
oproviding troubleshooting and service support in diagnosing, resolving and correcting problems associated with the use of ICT technologies and service
This section contains the following subsection : MINOR GROUP 261 Business and Systems Analysts, and Programmers MINOR GROUP 262 Database and Systems Administrators, and ICT Security Specialists MINOR GROUP 263 ICT Network and Support Professionals oOOo
Annexure D – Extract from ANZSCO Version 1.2MAJOR 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:
ocommunicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts
oanalysing, planning, developing and implementing programs and solutions to resolve business and economic problems
oproviding services in financial accounting, human resource development, publicity and marketing, and the efficient operation of organisations
oflying aircraft, and controlling and directing the operation of ships, boats and marine equipment
oconducting and analysing research to extend the body of knowledge in the field of the sciences and developing techniques to apply this knowledge
odesigning products, buildings and other physical structures, and engineering systems
oresearching and developing curricula, and teaching students in a range of educational settings
odesigning, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed, and disseminated
oidentifying, treating, and advising on, health, social, and personal issues
oadvising clients on legal matters
This section contains the following subsection :SUB-MAJOR GROUP 21 Arts and Media Professionals SUB-MAJOR GROUP 22 Business, Human Resource and Marketing Professionals MAJOR GROUP 2 PROFESSIONALS cont’d
SUB-MAJOR GROUP 23 Design, Engineering, Science and Transport Professionals SUB-MAJOR GROUP 24 Education Professionals SUB-MAJOR GROUP 25 Health Professionals SUB-MAJOR GROUP 26 ICT Professionals SUB-MAJOR GROUP 27 Legal, Social and Welfare Professionals oOOo
0
9
0