XU (Migration)

[2018] AATA 1568

XU (Migration) [2018] AATA 1568 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dong Xu

CASE NUMBER:  1705323

DIBP REFERENCE(S):  BCC2017/138573

MEMBER:Katie Malyon

DATE:28 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 28 March 2018 at 4:15 pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant satisfies the study requirement of 92 weeks – Studies cumulatively greater than 92 weeks – Whether the applicant’s studies are “closely related” to his nominated occupation – Computer Network and Systems Engineer – Advanced Diploma in Translation – Studies not closely related to nominated position – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15F, 2.26AC(6), Schedule 2, cls 485.221, 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281

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 Immigration on 8 March 2017 to refuse to grant the applicant, Mr Dong Xu, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Xu applied for the visa on 11 January 2017. 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).

3. The delegate refused to grant the visa as Mr Xu did not satisfy cl.485.221 and cl.486.222 of Schedule 2 to the Regulations because his Bachelor of Information Technology degree obtained from the University of Wollongong (UoW) was completed on 15 December 2015 which is more than 6 months prior to lodging his Subclass 485 visa application and, furthermore, his Advanced Diploma of Translating from Abbey College Australia (Abbey) completed on 10 November 2016 was not closely related to his nominated occupation of Computer Network and Systems Engineer ANZSCO 263111.  A copy of the delegate’s decision was provided to the Tribunal. 

4. Mr Xu appeared before the Tribunal on 28 September 2017 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages: however, the Tribunal notes that Mr Xu had only occasional use of the interpreter.  Mr Xu was represented in relation to the review by his registered migration agent.  Although the representative not attend the hearing, the Tribunal was informed the representative had sent along someone from his office (who is also a registered migration agent) to assist Mr Xu, not in his capacity as a representative but, rather, as a friend.  Mr Xu’s friend confirmed he was not representing Mr Xu in a professional capacity and did not seek to provide any submissions at the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Mr Xu 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: first, the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and second, each qualification - that is, 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 Xu meets those requirements.

   Does the applicant meet the Australian study requirement?

7. 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.

8. ‘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.

9. The Department’s file contains copies of Mr Xu’s Bachelor of Information Technology degree and Academic Transcript from UoW together with a letter from UoW confirming Mr Xu completed his Bachelor of Information Technology degree on 15 December 2015.  In addition, the Department’s file contains the completion letter from Abbey confirming Mr Xu completed his Advanced Diploma of Translating on 10 November 2016 together with a copy of the Academic Transcript from Abbey.  Mr Xu’s representative also provided a copy of the completion letter from Abbey and the Academic Transcript to the Tribunal.

10. Based on evidence set out on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that an Advanced Diploma of Translating at Abbey is registered for 50 weeks and that all instruction is in English.[1] 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 Translating qualification alone, Mr Xu does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day his Subclass 485 visa application was made on 11 January 2017 as required by cl.485.221 of Schedule 2 to the Regulations.

    [1]

11. 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 Xu can rely on his Bachelor of Information Technology degree from UoW to meet the ‘Australian study requirement’.  The CRICOS website confirms that a Bachelor of Information Technology degree at UoW is registered for 156 weeks and all instruction is in English.[2] 

    [2] >

    Accordingly, the Tribunal finds that the registered courses undertaken by Mr Xu, both at Abbey and UoW, have a total registered duration in excess of 92 weeks. 

12. Departmental records confirm that during the period 4 March 2013 (when Mr Xu commenced his Bachelor of Information Technology at UoW) and 10 November 2016 (when he completed his Advanced Diploma of Translating at Abbey) he was in Australia as the holder of Student visas authorising him to study in Australia.

13. Based on the evidence outlined above, the Tribunal finds that Mr Xu 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.

    Are the qualifications ‘closely related’ to the nominated occupation?

14. 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.  

15. Mr Xu nominated the skilled occupation of Computer Network and Systems Engineer ANZSCO 263111 which is a skilled occupation specified in the relevant legislative instrument IMMI 16/059.  The issue, therefore, is whether Mr Xu’s Bachelor of Information Technology degree and his Advanced Diploma of Translating are closely related to his nominated skilled occupation of Computer Network and Systems Engineer.

16. The term ‘closely related’ is not defined in the Regulations. However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon[3] and Talha v MIBP[4] as well as the Federal Court of Australia’s in its decision in Constantino v MIBP.[5]  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,[6] the relationship must be more than merely complementary.[7]

    ·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 (emphasis added).[8]

    ·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 description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[9]

    ·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[10] 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.[11]

    Accordingly, the Tribunal has been guided by these cases in its consideration of the issue presented in Mr Xu’s case.

    [3] (2014) 227 FCR 525.

    [4] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.

    [5] [2013] FCA 1301, Jacobson J.

    [6] 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].

    [7] 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].

    [8] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].

    [9] 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.

    [10] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53]

    [11] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].

17. The Full Federal Court’s decision in Talha v MIBP observes 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.[12]  The next level up in the 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 separate Major Groups.

    [12] >

    The Tribunal accepts that Mr Xu’s Bachelor of Information Technology completed 15 December 2015 is closely related to his nominated occupation of Computer Network and Systems Engineer ANZSCO 263111.  In this regard, the Tribunal notes Mr Xu’s skills assessment issued by the Australian Computer Society (ACS) dated 19 December 2016 confirms that his positive assessment was exclusively based on his “Bachelor of Information Technology from University of Wollongong completed December 2015”.  Significantly, the ACS skill assessment makes no reference to Mr Xu’s Advanced Diploma in Translating. 

18. ANZSCO states that a Computer Network and Systems Engineer ANZSCO 263111 ‘plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems’.  Mr Xu’s nominated occupation forms part of Unit Group 2631 Computer Network Professionals.  There are 3 occupations in Unit Group 2631: Computer Network and Systems Engineer ANZSCO 236111, Network Administrator ANZSCO 263112 and Network Analyst 263113.  Full details in relation to Unit Group 2631 are extracted in Annexure A to this decision.  The ANZSCO description for Unit Group 2631 states that Computer Network Professionals ‘research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support.’

19. Unit Group 2631 forms part of a higher hierarchy called Minor Group 263 ICT Network and Support Professionals: full details are extracted at Annexure B.  ANZSCO’s description for Minor Group 263 states that ICT Network and Support Professionals ‘research, analyse, plan, design, install, monitor and maintain ICT systems to support the business needs of organisations and individuals’.

20. Minor Group 263 in turn forms part of a higher Sub-Major Group 26, which is called ICT Professionals: full details are set out in Annexure C.  ANZSCO’s description for Sub-Major Group 23 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’.

21. The highest hierarchy within which Mr Xu’s nominated occupation of Computer Network in Systems Engineer ANZSCO 263111 is placed is Major Group 2 Professionals.  There are 318 professional occupations listed in the current version of ANZSCO.  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. 

22. In passing, the Tribunal notes that ANZSCO expressly recognises that in developing its skills specialisation criteria, employability skills were considered as a possible additional dimension.  It acknowledges that employers are increasingly using employability skills in conjunction with technical or job-specific skills when assessing the suitability of an applicant for a particular occupation.  However, ANZSCO does not incorporate what it describes as ‘generic employability skills’ because, in its opinion, such skills are applicable to most occupations and therefore have limited value as classification criteria.[13]  In this regard, the Tribunal notes that ANZSCO identifies the 8 generic employability skills including, relevantly:

    ·communication skills that contribute to productive and harmonious relations between employees and customers

    ·technology skills that contribute to the effective execution of tasks. 

    Full details are set out in Annexure E.

    [13] Australian Bureau of Statistics / Statistics New Zealand, ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, 2006, p. 814;  see also >

    Having identified information in ANZSCO in relation to the nominated occupation of Computer Network in Systems Engineer, the Tribunal has considered Mr Xu’s studies in translating.  Subjects completed by Mr Xu to achieve his Advanced Diploma in Translating are: 

    ·Analyse and present research information

    ·Provide mentoring support to colleagues

    ·Edit texts

    ·Negotiate translating and interpreting assignments

    ·Prepared to translate and interpret

    ·Analyse text to be translated (LOTE)

    ·Demonstrate written language proficiency in different subjects and cultural contexts

    ·Translate special purpose text from English to LOTE (that is, languages other than English)

    ·Quality assure translations

    ·Apply codes and standards to professional judgement

    ·Translate multimedia source material

    ·Use translation technology.

23. Information available on Abbey’s website states that the purpose of the Advanced Diploma of Translating is to give graduates, such as Mr Xu, the ‘skills and knowledge required of individuals to translate special purpose texts from one language to another to convey information written (sic) using specific terminology for a specific audience’.  It identifies possible career opportunities for graduates to obtain ‘employment in the public and private sectors as an English to Chinese translator, either on a freelance or contract basis’ and perform ’some translating tasks as part of their principal duties in jobs requiring translating, bilingual and cross-cultural communication skills, in different industries’.[14]

    Documentation lodged with the Tribunal prior to the hearing

    [14] >

    Prior to the hearing, Mr Xu’s representative provided a Submission addressing why he believes Mr Xu’s Advanced Diploma of Translating is closely related to his nominated occupation of Computer Network in Systems Engineer.  Having regard to the tasks of a Computer Network Professional as set out in Unit Group 2631, the representative submits the occupation may extend to the field of problem-solving and effective communication for optimal network performance, support of specific business needs and requirements.  Further, he submits it is necessary to take into account the subjects completed by Mr Xu as part of his Advanced Diploma of Translating and which are closely related to the nominated occupation including, especially, the following subjects:

    ·Analyse and present research information

    ·Demonstrate written language proficiency in different subjects and cultural contexts

    ·Use translation technology.

    Hearing

24. The Tribunal explained to Mr Xu 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 leadership are ‘closely related’ to his nominated occupation of Computer Network and Systems Engineer ANZSCO 263111 having regard to ANZSCO as a whole: the relationship must be more than complementary. 

1. Mr Xu told the Tribunal that, in his opinion, his Advanced Diploma of Translating is relevant because he needs to translate documentation for clients.  He returned to this theme a number of times throughout the hearing reiterating that, in Australia now, there are lots of people from overseas so translating skills are actually very important - for any career.  The Tribunal acknowledged Mr Xu’s comments regarding the usefulness in many workplaces of skills as a translator (or interpreter) but noted that case law confirms the assessment of whether a qualification is closely related to an applicant’s nominated occupation must be made objectively having regard to ANZSCO as a whole, not subjectively from the personal point of view of the applicant.  Mr Xu responded noting it is not about his career but about overseas people being in Australia.  Asked to identify tasks in the ANZSCO occupation of Computer Network and Systems Engineer, the Unit Group 2631 Computer Network Professionals or the Minor Group 263 ICT Network and Support Professionals that refer to skills or tasks involving translating, Mr Xu acknowledged that no such task was identified.    

2. The Tribunal noted it accepts that if clients do not speak English then, in any professional context, it is desirable that they can communicate with a business using the services of an appropriately qualified interpreter or translator.  Mr Xu confirmed that many of the operating systems he uses are not all written in English and, without the benefit of having another language, he would not be able to be used.  The Tribunal questioned Mr Xu as to how, if this is the case, tertiary students in Australia who do not speak another language manage to complete their degrees in computer science.  Mr Xu responded that their options to use multiple operating systems are limited.  After a short break in the hearing, Mr Xu acknowledged speaking another language is not required to complete tertiary qualifications in computing but, in his opinion, student who do not have a second language have limited options to use multiple operating systems.

   Documentation received after the hearing

3. After the hearing, the Tribunal received a further statement from Mr Xu forwarded by his representative.  He notes he ‘may not 100% answered the questions’ due to his ‘nervousness’. 

4. Ms Xu asserts that there is a close relationship between IT and translating for 3 reasons:

   1)“Documentation is an important duty of an IT engineering (sic).  By looking at a big picture of the job duties prescribed by the ANZSCO of group 2631, the duties of an IT engineer could be divided into 2 main categories, in terms of technical skills on computers and paperwork for documentation.  As an engineering (sic), not only is he/she going to solve problems with skills, but it is also important in preparing documents, such as project proposal, maintenance records etc.  This distinguishes the role of IT Engineer and Programmer who may only need to work on programming by following the design and documents which are made by engineers. 

   2)ANZSCO the job duties of group 2631 do include translating.  In fact, the ANZSCO job duties only prescribe the general understanding of an occupation, and we should combine with the reality of the market and industry when interpreting each word of the duties. 

   In the job duties of Unit Group 2631, it said, “preparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks and maintenance instructions”

   I have a further understanding of the word ’preparing’.  Base (sic) in the current society, it contains composing the words of the document, recording and formatting it with software (like Microsoft Word), and translating into proper language for the intended audience (for oversea (sic) clients or co-operated business partner, especially when the business are out sourcing basic jobs to other countries with lower labour costs, like China and Vietnam).  The job duties itself did not mention the word ‘translating‘, but it is a skill that may be necessary when preparing documents in the current circumstances.  Just like the skill of Microsoft Word, without which, it is not possible to complete the job of preparing documents as an IT engineer. 

   3)It is a trend of international business, and the skills of translation help Australian companies in expanding business on a global scale, which in returns (sic) benefit the Australian business in revenue and employment

   The word ‘preparing’ should be interpreted with the reality in which, translating is a crucial skill given the trend of globalisation and international business”. 

   Consideration of evidence

5. The Tribunal has had regard to the description for the occupation of Computer Network and Systems Engineer ANZSCO 263111, being an occupation which ‘plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems’.  The tasks of a Computer Network and Systems Engineer as listed in ANZSCO Unit Group 2631 (and set out in Annexure A) are:

   ·analysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems

   ·researching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance

   ·assessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems

   ·providing specialist skills in supporting and troubleshooting network problems and emergencies

   ·installing, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations

   ·providing network programming in support of specific business needs and requirements

   ·preparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions

   ·monitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance.

6. In addition, the Tribunal has considered ANZSCO’s description for Unit Group 2631 which states that Computer Network Professionals ‘research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support.’   In respect of Minor Group 263, ANZSCO states ICT Network and Support Professionals ‘research, analyse, plan, design, install, monitor and maintain ICT systems to support the business needs of organisations and individuals’.  The Tribunal has also had regard to the tasks identified in Sub-Major Group 23 which 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’.

7. As noted above, the Advanced Diploma of Translating from Abbey is aimed at giving ‘skills and knowledge required to translate special purpose texts from one language to another to convey (written) information using specific terminology for a specific audience’.  The Tribunal accepts that Mr Xu is bilingual and now has accredited qualifications in translating.  As discussed with Mr Xu during the hearing and echoed in Mr Xu’s submission lodged with the Tribunal after the hearing, the Tribunal accepts his argument that such skills would assist him in dealings with Chinese business owners who have limited English and/or their clients or customers who have limited English.  It also recognises that his skills as a Translator would be beneficial in carrying out some of his functions as a Computer Network in Systems Engineer, for example, where customers or clients - either in Australia or overseas - speak Mandarin or preparation of documentation in Mandarin is required.  The Tribunal also accepts that such skills could assist Australian companies expand their business overseas to countries where Mandarin is spoken.  Further, it accepts Mr Xu’s employability will be enhanced 

8. 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.

9. Having carefully considered all of the evidence, the Tribunal does not accept that Mr Xu’s Advanced Diploma in Translation is closely related to his nominated occupation of Computer Network and Systems Engineer ANZSCO 263111 as claimed. 

10. As the Tribunal has found Mr Xu’s Advanced Diploma in Translating qualification is not closely related to his nominated skilled occupation of Computer Network and Systems Engineer it follows that he does not meet cl.485.222 of Schedule 2 to the Regulations.

11. 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

12. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Katie Malyon

    
    Member

    Annexure A – Extract from ANZSCO Version 1.2
    
    

    UNIT GROUP 2631 COMPUTER NETWORK PROFESSIONALS
    
    COMPUTER NETWORK PROFESSIONALS research, analyse and recommend strategies for network architecture and development, implement, manage, maintain and configure network hardware and software, and monitor and optimise performance, and troubleshoot and provide user support.
    
    
    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:

    oanalysing, developing, interpreting and evaluating complex system design and architecture specifications, data models and diagrams in the development, configuration and integration of computer systems

    oresearching, analysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance

    oassessing and recommending improvements to network operations and integrated hardware, software, communications and operating systems

    oproviding specialist skills in supporting and troubleshooting network problems and emergencies

    oinstalling, configuring, testing, maintaining and administering new and upgraded networks, software database applications, servers and workstations

    oproviding network programming in support of specific business needs and requirements

    opreparing and maintaining procedures and documentation for network inventory, and recording diagnosis and resolution of network faults, enhancements and modifications to networks, and maintenance instructions

    omonitoring network traffic, and activity, capacity and usage to ensure continued integrity and optimal network performance

    
    Occupations:

    263111 Computer Network and Systems Engineer
    263112 Network Administrator
    263113 Network Analyst

    
    263111 COMPUTER NETWORK AND SYSTEMS ENGINEER

    
    Plans, develops, deploys, tests and optimises network and system services, taking responsibility for configuration management and overall operational readiness of network systems, especially environments with multiple operating systems and configurations, and provides troubleshooting and fault-finding services for network problems.
    
    
    Skill Level: 1
    Specialisations:

    Computer Network Engineer
    Computer Systems Integrator

    
    263112 NETWORK ADMINISTRATOR
    
    

    Alternative Titles:

    Network Specialist
    Network Support

    
    Installs and maintains hardware and software, documents diagnosis and resolution of faults, manages user passwords, security and inventory documentation, ensures the efficient performance of servers, printers and personal computers, and attends to other operational tasks. May also perform tasks such as help desk support and user training.
    
    
    Skill Level: 1
    Specialisation:

    LAN Administrator

    
    263113 NETWORK ANALYST

    
    Alternative Titles:

    Network Designer
    Network Strategist

    
    Researches and analyses network architecture, and recommends policies and strategies for designing, planning and coordinating an organisation's network such as the total system environment and architecture. May also perform operational tasks such as monitoring system performance, software and hardware upgrades, backups, support and network maintenance.
    
    
    Skill Level: 1
    Specialisations:

    Network Architect
    Network Consultant

    oOOo

Annexure B – Extract from ANZSCO Version 1.2

MINOR GROUP 263 ICT NETWORK AND SUPPORT PROFESSIONALS

ICT NETWORK AND SUPPORT PROFESSIONALS research, analyse, plan, design, install, monitor and maintain ICT systems to support the business needs of organisations and individuals.

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:

oplanning, designing, developing, configuring and commissioning networks and systems

oanalysing, evaluating and monitoring network infrastructure to ensure networks are configured to operate at optimal performance

otroubleshooting and diagnosing network and system problems, and determining the most appropriate means of resolving problems and issues to improve system performance

omonitoring the overall performance of systems to assess the need for updates, upgrades, enhancements, preventive maintenance and new systems, and recommending options for upgrading and improving the performance of systems

oscheduling and conducting quality audit inspections

This section contains the following subsection :

         UNIT GROUP 2631 Computer Network Professionals

         UNIT GROUP 2632 ICT Support and Test Engineers

         UNIT GROUP 2633 Telecommunications Engineering Professionals

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 1.2

MAJOR 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

     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

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Annexure E – Extract from ANZSCO Version 1.2

EMPLOYABILITY SKILLS

In developing the skill specialisation criteria for the Australian and New Zealand Standard Classification of Occupations (ANZSCO), employability skills were considered as a possible additional dimension.  Employers are increasingly using employability skills in conjunction with technical or job-specific skills when assessing the suitability of an individual for a particular occupation.  The employability skills considered for ANZSCO were those published by the (then) Australian Government Department of Education, Science and Training in March 2002 in the report Employability Skills for the Future.  This report discusses the employability skill needs of industry in Australia.  It is based on research undertaken with industry.   The report identified two facets to employability skills: 'personal attributes' and 'generic skills'.


PERSONAL ATTRIBUTES

The 'personal attributes' component of employability skills includes the following qualities: loyalty, commitment, honesty and integrity, enthusiasm, reliability, personal presentation, common sense, positive self-esteem, sense of humour, balanced attitude to work and home life, ability to deal with pressure, motivation and adaptability.  As they relate to the individual rather than the occupation, they are not appropriate as classification criteria.

GENERIC SKILLS

There were eight 'generic skills' identified:

• communication skills that contribute to productive and harmonious relations between employees and customers
• team work skills that contribute to productive working relationships and outcomes
• problem-solving skills that contribute to productive (enterprise) outcomes
• initiative and enterprise skills that contribute to innovative outcomes
• planning and organisation skills that contribute to long-term and short-term strategic planning
• self-management skills that contribute to employee satisfaction and growth
• learning skills that contribute to ongoing improvement and expansion in employee and company operations and outcomes
• technology skills that contribute to the effective execution of tasks.
  
  

The generic skills have not been incorporated into ANZSCO because they are applicable to most occupations and therefore have limited value as classification criteria.

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