Vergel Osorio (Migration)

[2022] AATA 5206

Vergel Osorio (Migration) [2022] AATA 5206 (19 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Eduardo Luis Vergel Osorio
Miss Mariapaula Ojeda Perez

REPRESENTATIVE:  Ms Sara Khodajoo (MARN: 1467027)

CASE NUMBER:  1934545

HOME AFFAIRS REFERENCE(S):         BCC2019/4614703

MEMBER:Warren Stooke AM

DATE:19 December 2022

PLACE OF DECISION:  Melbourne

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

·cl 485.311 of Schedule 2 to the Regulations

Statement made on 19 December 2022 at 2:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Petroleum Engineer – Australian study requirement – Advanced 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, 485.311

CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

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 18 November 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 September 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 visas on the basis that the first named applicant (the applicant) did not satisfy cl 485.222 of Schedule 2 to the Regulations because the courses of study undertaken were not ‘closely related’ to the nominated occupation of Petroleum Engineer – ANZSCO Code: 233612.

4. The applicants appeared before the Tribunal on 15 December 2022 to give evidence and present arguments.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

6. The applicant confirmed to the Tribunal that he had provided a copy of the delegate’s decision to the Tribunal with his application for review. The applicant stated that it was his understanding that the application was refused because the courses studied did not have anything to do with the Engineering qualification previously studied and that the courses were not closely related to the occupation of Petroleum Engineer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl 485.221 and 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.

9. The applicant is a 31 year old from Columbia, who stated that he arrived in Australia on 31 December 2015 and was granted a Bridging Visa A on 15 September 2019 with condition 8501, which requires the applicant to maintain health insurance. The Bridging Visa A commenced at the end of his Student (Temporary) Visa on 21 September 2019.

10. The applicant provided evidence of health insurance with Bupa that commenced on 21 September 2019 and the applicant was subject of a medical clearance on 15 September 2019.

11. The applicant provided evidence that he completed a bachelor degree in Petroleum Engineering at Fundacion Universidad de America, which was awarded in April 2016.

12. The applicant provided evidence that he completed the following courses of study whilst resident in Australia:

    a.Diploma of Leadership and Management from 3 April 2017 to 1 April 2018;

    b.Advanced Diploma of Leadership and Management from 2 April 2018 to 21 July 2019.

13. The applicant provided evidence from Engineers Australia of a skills assessment, dated 22 October 2019, that meets the current requirement for the following occupation relating to the Occupational Classification ANZSCO Skill Level for a Petroleum Engineer, as follows:

    ·Professional Engineer: Skill Level 1 Petroleum Engineer ANZSCO Code 233612 and assessed in April 2016

14. The applicant has provided evidence of an International Police Clearance dated 26 August 2019 to the effect that the applicant has ‘no criminal record’ and an AFP Police check on a name search that identifies ‘no disclosable court outcomes’.

15. The applicant gave evidence that he had previously tried to gain employment as a Petroleum Engineer but because of his visa status was not able to gain such employment to give him the opportunity to work as a Petroleum Engineer.

16. The applicant stated that he is currently working as a Business Manager in an accommodation business.

17. The Tribunal explained to the applicant that the issue currently before the Tribunal was whether the courses studied in Australia are ‘closely related’ to the nominated occupation of Petroleum Engineer, which the applicant acknowledged he understood.

18. The Tribunal asked the applicant to explain to the Tribunal why he considered the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management to be ‘closely related’ to the nominated occupation of Petroleum Engineer. The applicant responded that the studies of Leadership and Management provided skills related to the position of Petroleum Engineer for work in an office to carry out projects, as opposed to the alternative to work in the field, which he experienced in his work in Columbia.

19. The applicant provided information through the course transcripts that the following subjects were included in the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management studied at Orange International College (CRICOS Provider Code: 03446A) as follows:

Diploma

of

Leadership and Management

Advanced Diploma

of

Leadership and Management

·   Manage meetings;

·   Build and sustain an innovative workplace environment;

·   Lead and manage effective workplace relationships;

·   Facilitate continuous improvement;

·   Undertake project work;

·   Manage personal work priorities and professional development;

·   Lead and Manage Team effectiveness;

·   Develop workplace policies and procedures for sustainability;

·   Develop and use emotional intelligence;

·   Manage people performance;

·   Manage operational plan;

·   Manage risk.

·   Manage knowledge and information;

·   Develop and implement a business plan;

·   Develop an advertising campaign;

·   Manage finances;

·   Manage human resource strategic planning;

·   Develop, implement and maintain WHS management systems;

·   Lead and manage organisational change;

·   Manage innovation and continuous improvement;

·   Provide leadership across the organisation;

·   Develop a marketing plan.

1. The Representative provided the following submission to the Tribunal in consideration of the ‘closely related’ status of the courses studied in Australia in relation to the nominated occupation of Petroleum Engineer:

   “To satisfy the requirements of clause 485.222, each degree, diploma or trade qualification used to satisfy the Australian study requirement must be ‘closely related’ to the primary review applicant’s nominated skilled occupation. It is our submission that both qualifications, which are a Diploma of Leadership and Management, and an Advanced Diploma of Leadership and Management are closely related to the nominated occupation of Petroleum Engineer, and that regardless of being diploma level qualifications, the skills set underpinning the qualifications are directly transferrable to this occupation.
   The words ‘closely related’ are not defined in migration law; however, the courts have held that although the words do not require exact correspondence1, the relationship must be more than merely complementary.2 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, the ‘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’.3 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.4
   In the case of Ramirez Moreno5 where the Tribunal held that a Diploma/Advanced Diploma in Leadership and Management were closely related to the nominated occupation of Environmental Engineer, the Member provided the following reasoning:
   When considering the ANZSCO descriptions above, while that of Environmental Engineer focuses on the technical aspects of the role, other engineering descriptions in ANZSCO include duties that are of a management nature such as supervising, organising and managing, dealing with costs and resolving design and operational issues. The Tribunal also notes that the material from Engineers Australia focuses on the need for engineering professionals to have the capacity to manage projects and lead teams, to deal with stakeholders and communicate effectively. It notes that the engineer must be able to understand the requirements of clients, deal with a wide range of stakeholders and manage risk. The engineer must also be able to lead and manage teams appropriate to the activities of the given project.
   The Tribunal has found on several other occasions that a Diploma/Advanced Diploma of Leadership and Management are closely related to engineering occupations. These courses have been found to be closely related to the nominated occupations of Chemical Engineer6, Plant or Production Engineer7, and Engineering Technologist.8
   In ANZSCO, the occupation of Petroleum Engineer is listed under Unit Group 2336 Mining Engineers, which is which is part of Minor Group 233 Engineering Professionals. The delegate claimed that the ANZSCO description for the Mining Engineers unit group does not refer to leadership and management related units as being directly transferrable for this occupation.
   However, we submit that the tasks listed in the Mining Engineers unit group include technical engineering tasks, as well as leadership and management tasks. The following tasks listed in the ANZSCO description can be considered relevant to leadership and management:

   • preparing operation and project cost estimates and production schedules, and reporting progress, production and costs compared to budget
   • assessing the natural, technical, financial and safety risks associated with the phases of the project development, construction and operations
   • determining the safety of processes, order of extraction and safety of mine walls, evaluating the risk of slippage and advising on the prevention of slippage and rock falls

   • planning and coordinating the utilisation of labour and equipment consistent with efficiency targets, statutes, safety guidelines and environmental conditions

   Similarly, the tasks listed in the Engineering Professionals minor group include technical, as well as non-technical tasks such supervising, organising and managing project labour, estimating costs, and resolving design and operational problems.
   We also refer to an extract of the Engineers Australia Migrations Skills Assessment booklet, which provides the following description about the role of a professional engineer:
   Professional Engineers are required to take responsibility for engineering projects and programs in the most far-reaching sense. This includes the reliable functioning of all materials, components, sub-systems and technologies used; their integration to form a complete, sustainable and self-consistent system; and all interactions between the technical system and the context within which it functions. The latter includes understanding the requirements of clients, wide ranging stakeholders and of society as a whole; working to optimise social, environmental and economic outcomes over the full lifetime of the engineering product or program; interacting effectively with other disciplines, professions and people; and ensuring that the engineering contribution is properly integrated into the totality of the undertaking. Professional Engineers are responsible for interpreting technological possibilities to society, business and government; and for ensuring as far as possible that policy decisions are properly informed by such possibilities and consequences, and that costs, risks and limitations are properly understood as the desirable outcomes.
   The booklet further sets out the competency standards for professional engineers. In addition to the application of technical engineering knowledge and skills, these standards include professional and personal attributes such as ethical conduct and professional accountability, effective oral and written communication in professional and lay domains, professional use and management of information, orderly management of self and professional conduct, and effective team membership and team leadership, as well as knowledge of contextual factors impacting the engineering discipline.
   This shows that in addition to the technical aspects of their role, a professional engineer is expected to have other skills such as management, communication, teamwork, and leadership skills.
   A selection of recently advertised positions for petroleum engineers and other similar occupations attached show that potential candidates are required to have non-technical leadership and management skills, as well as technical skills. For example, a ‘Petroleum Engineer’ position listed on Seek on 17 November 2022 states that the successful candidate must be “self-disciplined in delivering on time”, “use exceptional communication skills” and be a “great listener and culturally sensitive”. A ‘Reservoir Engineer’ position listed on Seek on 1 December 2023 also lists “Strong communication, technical leadership and business judgment” and “Good interpersonal and influencing skills across remote sites” amongst its list of requirements.
   Other similar engineering jobs adverts similarly listed “Interpersonal style that demonstrates a commitment to teamwork and collaboration”, “Excellent communication skills when working with cross functional teams to provide technical safety related input on projects”, “Maintain and update safety and quality-related documentation and processes”, and “Good communication skills. Able to build a strong rapport with co-workers and customers” as skills required for potential applicants. These adverts evidence that the skills provided through a Diploma/Advanced Diploma of Leadership and Management are actually used by petroleum and other related engineers.
   Furthermore, the importance of management and leadership skills in the engineering profession has been recognised by educational institutions. The Engineering Institute of Technology, which is a specialised engineering education provider offers a Diploma and an Advanced Diploma of Leadership and Management for engineering professionals. The description of these courses on their website notes the importance of people management, project management, finance, and marketing skills for individuals working in the engineering field.9
   With reference to the above, it is submitted that the units that the applicant studied during the Diploma and Advanced Diploma of Leadership and Management as listed in the academic transcripts are directly transferrable and not merely complementary to the nominated occupation of Petroleum Engineer. Thus, the qualifications are ‘closely related’ to the nominated occupation of Petroleum Engineer.
   It is accordingly submitted that the application meets the requirements of clause 485.222 of the Regulations. As the primary applicant meets the requirements of clause 485.222, it is submitted that the secondary applicant meets the requirements of clause 485.311 of the Regulations.”
   1 MIBP v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525
   2 Constantino v MIBP [2013] FCA 1301
   3 Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
   4 Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 ; MIBP v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525; Constantino v MIBP [2013] FCA 1301
   5 Ramirez Moreno (Migration) [2019] AATA 5911 (19 December 2019)
   6 Cuesta Moreno (Migration) [2021] AATA 1650 (19 March 2021)
   7 Albuquerque Figueiredo (Migration) [2020] AATA 5755 (4 December 2020)
   8 Alvarez Arguello (Migration) [2021] AATA 2323 (25 June 2021)
   9 Engineering Institute of Technology, which is a specialised engineering education provider offers a Diploma and an Advanced Diploma of Leadership and Management for engineering professionals.

   Does the applicant meet the Australian study requirement?

2. 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 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.

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

4. The Tribunal is satisfied that the applicant completed a Diploma of Leadership and Management on 1 April 2018 and the subsequent the Advanced Diploma of Leadership and Management completed on 21 July 2019, which is within the 6 month period prior to application on 19 September 2019.

5. Further, the Diploma of Leadership and Management was completed on 1 April 2018 and the subsequent the Advanced Diploma of Leadership and Management was completed on 21 July 2019, at Orange International College, have a designated CRICOS Provider Code: 04336A, which complies with the legislative instrument.

6. The Tribunal is satisfied that the Australian Study requirement, by combining the applicant’s most recent qualifications, has been met with a total of in excess of 102 weeks. In this regard, the Tribunal accepts that qualifications may be combined to meet the Australian study requirement, providing one of them was completed in the 6 months immediately preceding the date of the visa application, which in this case is the Advanced Diploma of Leadership and Management at Orange International College. As such, the applicant has completed at least 2 years of academic study in the English language, whilst holding an authorised visa.

1. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

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

2. 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.

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

4. The occupation of Petroleum Engineer – ANZSCO Code: 233612 contains the following descriptor for the occupation:

   UNIT GROUP 2336 MINING ENGINEERS

   MINING ENGINEERS plan and direct the engineering aspects of locating and extracting minerals, petroleum and natural gas from the earth.

   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.

   Tasks Include:

   oconducting preliminary surveys of mineral, petroleum and natural gas deposits with prospectors, Geologists, Geophysicists, other mineral scientists and other engineers to determine the resources present, the feasibility of extracting the reserves, and the design and development of the extraction process

   opreparing operation and project cost estimates and production schedules, and reporting progress, production and costs compared to budget

   odetermining the most suitable methods of ore extraction taking account of such factors as depth of overburden, and attitude and physical characteristics of deposits and surrounding strata

   opreparing plans for tunnels and chambers, location and construction of mine shafts, layout of mine development and the application of appropriate mining techniques, often using computer modelling

   oassessing the natural, technical, financial and safety risks associated with the phases of the project development, construction and operations

   odetermining the safety of processes, order of extraction and safety of mine walls, evaluating the risk of slippage and advising on the prevention of slippage and rock falls

   oplanning and coordinating the utilisation of labour and equipment consistent with efficiency targets, statutes, safety guidelines and environmental conditions

   oplanning and conducting research and providing advice on engineering operations for the exploration, location and extraction of petroleum and natural gas

   odetermining location for drilling

   odeciding on types of derrick and equipment including seabed platforms

   odevising methods of controlling the flow of oil and gas from wells

   
   Occupations:

   
   233612 PETROLEUM ENGINEER

   Plans and directs the engineering aspects of locating and extracting petroleum or natural gas from the earth. Registration or licensing may be required.

   Skill Level: 1

   Specialisations:

   Mud Engineer
   Petrophysical Engineer

5. The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for a Petroleum Engineer – ANZSCO Code: 233612, is satisfied that the courses of study undertaken by the applicant, in the broader context of the Petroleum Engineering 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.”

6. The Tribunal is satisfied that the applicant has undertaken courses of study that are closely related to the occupation of Petroleum Engineer; ANZSCO Code: 233612 because the subject modules in the leadership and management courses 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 Petroleum Engineer 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 Petroleum Engineer 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.

7. 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

8. On this basis, the Tribunal is satisfied that the substantial part of the content of the Leadership and Management courses, specifically undertaken by the applicant and as described in evidence, are closely related to the nominated occupation of Petroleum Engineer – ANZSCO Code: 233612.

9. 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.

10. On the basis that the Tribunal is satisfied that the primary applicant has met the criteria for the grant of a 485 visa, it follows that the secondary applicant is a member of a family unit that has met the relevant criteria.

    DECISION

11. 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;

    ·Cl 485.311 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member