Andrean (Migration)

[2019] AATA 3481

Andrean (Migration) [2019] AATA 3481 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robby Andrean

CASE NUMBER:  1731005

HOME AFFAIRS REFERENCE(S):          BCC2017/3723585

MEMBER:Jennifer Cripps Watts

DATE:19 June 2019

PLACE OF DECISION:  Sydney

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

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 19 June 2019 at 1:11pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary) – qualification related to nominated occupation – occupation relevant to study – decision under review remitted  

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 485.221, 485.222, r 1.15F

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 and Border Protection (the delegate) on 21 November 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 October 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualification, Bachelor of Business (Hospitality Management), is closely related to the nominated occupation of Internal Auditor as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) 221214.

4. The applicant appeared before the Tribunal on 31 May 2019 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. The Tribunal has carefully considered the documentary and oral evidence provided by the applicant, together with other relevant information, including written submissions from the applicant’s migration agent, Mr Andreas Martano.

   Does the applicant meet the Australian study requirement?

9. Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

   ·that are registered courses; and

   ·that were completed in a total of at least 16 calendar months; and

   ·that were completed as a result of a total of at least 2 academic years study; and

   ·for which all instruction was conducted in English; and

   ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

10. ‘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, ‘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).

11. These are the details of the applicant’s qualification for the purpose of meeting the Australian study requirement:

    a.Bachelor of Business (Hospitality Management)

    ·At William Blue College of Hospitality Management

    ·Course code 081294K, CRICOS registered 156 weeks duration

    ·From 22 February 2016 to 29 August 2017

12. The Tribunal is satisfied that the course is CRICOS registered and that it was completed in a total of at least 16 calendar months as a result of at least 2 academic years study.  Instruction was in English and the applicant held a visa authorising study at the relevant times.

13. The applicant completed the relevant qualification on 29 August 2017 and applied for the 485 visa that is the subject of this review on 11 October 2017.

14. 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.

15. Having made the finding that the applicant’s qualification meets cl.485.221, the Tribunal has gone on to consider whether the qualification is closely related to the nominated occupation.

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

16. 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 17/072, which specifies the skilled occupation nominated by the applicant, Internal Auditor (ANZSCO 221214).

17. The ANZSCO Unit Group 2212 includes Auditors (Internal and External), Company Secretaries and Corporate Treasurers.  They are described as occupations that ‘conduct audits of accounting systems, procedures and financial statements, manage corporate funding and financial risk, and administer and review corporate compliance activities’.

18. In the ANZSCO, Internal Auditor  (with an alternative title of Audit Officer) is described as one where someone carrying on the occupation, ‘examines, verifies, evaluates and reports on financial, operational and managerial processes, systems and outcomes to ensure financial and operational integrity and compliance, and assists in business process reviews, risk assessments, developing deliverables and reporting progress against outcomes. Registration or licensing is required’.

19. The submissions by Mr Martano and evidence given by the applicant are essentially arguing that an Internal Auditor (as opposed to an External Auditor, Company Secretary or Corporate Treasurer) would, in the ANZSCO tasks as they are described, skew more to the administration and review of corporate compliance activities in a broad range of business areas within an organisation, not just financial or accounting.

20. The applicant provided additional documents to the Tribunal prior to the hearing, including VetAssess positive skills assessment, dated 17 November 2017, job ads from Michael Page for Internal Auditor – Hospitality, including an outline of duties, written submissions addressing each criterion for the grant of a Subclass 485 visa in the Graduate work stream and the claim that the applicant meets all criteria, including cl.485.222, with detailed reasons given, printouts from the Institute of Internal Auditors describing the role of an Internal Auditor, course information issued by William Blue for the Bachelor of Business (Hospitality Management) including subject information for Project Management, Business Economics, Business and Law, Entrepreneurship in Context, Hospitality and Tourism Distribution and Managing the Hospitality Asset and the ANZSCO description for Unit Group 2212 

21. The Tribunal is satisfied that the applicant, on the evidence, is clearly intending to seek employment as an Internal Auditor in the hospitality or hotel industry.  He works in the industry and has done for some years, consistent with his stated career goal relating to the nominated occupation.  He commenced work at the Hyatt Regency in Sydney in event banquets about two years ago and continues to work there at the time of this decision.  He said that he has discussed with them the possibility of applying for an internal auditor position there but was told that while his visa status is unresolved the company would not be able to give him a full time position. 

22. On examination of the all relevant information about the applicant’s qualification, it is the view of the Tribunal that the qualification includes a substantial proportion of study units covering business accounting, economics, management, business and law, project management, managing assets, risk analysis and management, business information analysis and revenue management, consistent with the tasks of an Internal Auditor as described in the ANZSCO.

    Post-hearing submissions

23. On Monday 3 June 2019, post-hearing submissions from Mr Martano were received by the Tribunal, together with documents from William Blue College of Hospitality Management containing information about the Bachelor of Business (Hospitality Management).  The post-hearing submissions are essentially consistent with his oral submissions at the Tribunal hearing.  He seeks to analyse the 12 bullet point tasks described for the ANZSCO Unit Group 2212 to arrive at his submission that because the group covers Company Secretary, Corporate Treasurer, External Auditor and Internal Auditor, that all the tasks do not necessarily apply to all or each of the occupations in the unit group.  It is accepted by the Tribunal, as has been submitted, that the roles of an external and internal auditor are different and that an internal auditor would not need to be a qualified accountant.     

24. The Tribunal has had regard to all relevant facts and matters, including the applicant’s academic transcript, his oral evidence and submissions by Mr Martano.  The units of study the applicant undertook, in the qualification that the Tribunal has found meets the Australian study requirement, were discussed in detail with him at the hearing.  A few are not directly transferable to the nominated occupation of Internal Auditor and the applicant did not seek to dispute this, which goes to his credit.  However, overall the Tribunal is satisfied that he has acquired skills as a result of completion of the qualification of which a substantial proportion of the acquired are consistent with the nominated skills described in the ANZSCO for an Internal Auditor. 

25. The applicant was asked at the Tribunal hearing what an internal auditor does and gave a cogent response, in plain language, that an internal auditor helps a company to assess their financial situation, risk management and that they report to management about whether things are working and make recommendations for change of strategy if necessary.  He gave spontaneous evidence, when asked, about how he would conduct a business process review, which he indicated would include engaging with the relevant stakeholders to obtain information to enable him to conduct risk assessments and then go on to develop deliverables and report progress against outcomes.  The Tribunal was left with the impression that the applicant had taken a very considered and well informed approach to choosing the nominated occupation and engaging in appropriate study to enable him to pursue a career as an Internal Auditor, in the hospitality sector.

26. On the evidence, and in the particular circumstances of this case, the Tribunal is satisfied that the applicant’s qualification is closely related to the nominated skilled occupation and, for the reasons given, the applicant meets cl.485.222.

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

    DECISION

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

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Member