Aung (Migration)

[2020] AATA 5306

Aung (Migration) [2020] AATA 5306 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hein Htet Aung
Mrs Htet Htet Yi Aung

CASE NUMBER:  1815979

HOME AFFAIRS REFERENCE(S):          BCC2017/3686872

MEMBER:Alison Mercer

DATE:14 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

·cl.186.234 of Schedule 2 to the Regulations.

Statement made on 14 December 2020 at 4:35pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – direct entry stream – work experience in occupation – part of three years’ experience as ‘assistant’ – job title and tasks – fully qualified accountant assisting finance manager, performing full tasks according to ANZSCO description – consistent and credible evidence – positive skills assessment – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994 (Cth), Schedule 2, cl 186.234

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 21 May 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 October 2017. At the time of application, Class EN contained one subclass: subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a subclass 186 visa are set out in Part 186 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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Accountant (General).

5. The delegate refused to grant the visas because the applicant did not meet cl.186.234 of Schedule 2 to the Regulations, which required that the applicant had a positive skills assessment for his nominated occupation and at least 3 years of work experience in that occupation, or that he was in a specified class of people who were exempt from having to meet these requirements. The delegate found that the applicant was not in the class of exempt people, and that while he had a positive skills assessment from the relevant assessing authority, he had not demonstrated that he had 3 years of work experience in this occupation. In particular, the delegate noted that the applicant only listed work experience with his nominating employer, and that this employment experience was from 15 October 2013 to the date of the visa application (7 October 2017). The delegate further noted that the Department’s policy guidelines (set out in its Procedures Advice Manual 3, or PAM3) indicated that occupational training or similar should be excluded from consideration in assessing an applicant’s employment experience in their nominated occupation. In the applicant’s case, the delegate noted that for part of his employment with his nominating employer, he was designated an assistant accountant. The delegate was not satisfied that the applicant therefore had 3 years of employment experience at the level of an Accountant (General). The delegate found that the applicant did not meet cl.186.234 and could not be granted a subclass 186 visa in the Direct Entry stream, and that he had made no claims against any of the other streams. In addition, the delegate found that the second named applicant (the applicant’s spouse) did not meet the secondary criteria to be a member of the family unit of a person who met the primary criteria, and there was no evidence that she met the primary visa criteria in her own right.

6. The Tribunal received a review application from the applicants on 31 May 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Ms Fiona Wong, to be their representative and authorised recipient for correspondence for the purposes of the review.

7. The applicant appeared before the Tribunal on 11 December 2020 by videoconference to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andrew O’Keefe, and Ms Jane Lee. The applicant’s agent also participated in the hearing by videoconference.

8. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

9. The applicant confirmed that he had completed a Bachelor degree in Thailand, then come to Australia, where he had completed a Masters degree in Applied Finance, a Graduate Certificate of Accounting, and a Masters degree in Accounting. The applicant confirmed that he completed the latter qualification in 2012, and advised the Tribunal that he was not required to undertake a Professional Year course in order to work as a fully qualified Accountant, as his Masters degree in Accounting enabled him to commence employment as an Accountant (including setting up an independent practice if he wished) without a supervised year of employment. The applicant told the Tribunal that he undertook an unpaid internship at a firm called Quinlans to gain payroll experience, but concluded that his career prospects there were not that good, as there were many interns there. He started actively looking for new employment in 2013, utilising the University’s website, through which he made contact with Ms Siow Siong (Jane) Lee, then the Finance Manager at Herbs Of Gold Pty Ltd. She interviewed him and offered him an unpaid intern position in the company’s Finance Team. There was no definite duration for this position, but it was understood that it he was suitable, then he would be offered a paid role. He commenced the internship in late August 2013.

10. The applicant confirmed that he was taken on in a paid role, which was in the Accounts Receivable area, on 15 October 2013. Initially, he was employed on a casual basis, but became permanent in late November 2013, when he started undertaking accounting work. He told the Tribunal that he was working as an Accountant in the business on a full time basis by January 2014, performing the full range of tasks of an Accountant, including auditing, forecasting and so on, and he continued to perform this role.

11. Ms Lee confirmed that she was the Finance Manager at Herbs of Gold Pty Ltd between 2012 and 2019 and that she initially took the applicant on as an unpaid intern as the work of the Finance Team was expanding at that time, and she needed to make a business case to employ another Accountant. Ms Lee confirmed that she is an Accountant, but that prior to the applicant joining the company, the other 2 members of the Finance Team were not qualified Accountants. Ms Lee said that it was always her intention to take the applicant on as a paid employee in the role of Accountant, provided he proved suitable for the role, and the pathway to this was via the unpaid internship and the casual role, so he could gain experience in the business. She confirmed that the applicant was working as a fully qualified Accountant by January 2014, and she clarified his title was Assistant Accountant because he assisted her (the Finance Manager). Ms Lee was clear that the term ‘Assistant Accountant’ did not denote that the applicant was not fully qualified as an Accountant and/or was not undertaking the full range of duties a fully qualified Accountant would do. Rather, it reflected his position in the team, which was to assist her with the accountancy work of the business.

12. Mr O’Keefe, Managing Director of the business, told the Tribunal that the company is listed on the Australian Stock Exchange and had an annual revenue of approximately $20 million. He explained that the business went through an expansion stage in 2014, necessitating (amongst other things) expansion of the Finance Team. Mr O’Keefe confirmed that the applicant was working as an Accountant, and performing the tasks listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary by that time. Mr O’Keefe further confirmed that the applicant continued to work as an Accountant for the business, and was a valued employee who had played a critical role in the expansion of the business, and who continued to do so.

13. On the same day as the hearing, the Tribunal received legal submissions from the applicant’s agent, together with extensive supporting documentation, including the following:

    ·copy of nomination approval letter for the applicant’s position, dated 19 May 2018;

    ·copies of the applicant’s qualifications: Bachelor of Business Administration from Assumption University, Thailand, 2009; Master of Applied Finance, University of Western Sydney, 2010; Graduate Certificate in Accounting, University of New England, 2011; and Master of Accounting (Professional), Macquarie University, 2012;

    ·copies of the applicant’s CPA membership and his positive skills assessment from Chartered Accountants Australia and New Zealand, dated 3 November 2016, together with further letter from CAANZ of the same date assessing the skill level of the applicant’s employment history as an Accountant; and

    ·copies of the applicant’s tax returns for 2016/17 and 2017/18, copies of his contracts for unpaid internship and paid employment with his nominating employer, plus letters from his employer advising of pay increases, variously dated.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets cl.186.234.

    Skills assessment and prior employment

16. For an applicant in the Direct Entry stream, cl.186.234 requires that at the time of application, either the applicant is in a class of persons specified in an instrument in writing (exempt persons) or the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority and certain employment requirements are met.

17. For this criterion, the relevant class of exempt persons has been specified in IMMI 15/083 and consists of:

    ·persons who hold subclass 444 – Special Category visa; or subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their subclass 187 – Regional Sponsored Migration Scheme visa.  

18. Relevant assessing authorities for each occupation have been specified in IMMI 17/080. For visa applications made on or after 28 October 2013, this assessment cannot be one for a subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than 3 years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

19. In addition, if not an exempt person, the applicant must have been employed in the nominated occupation for three years. Where the visa application was made on or after 1 July 2013, this employment must have been on a full time basis, and at the level of skill required for the occupation.

20. The Tribunal notes that the applicant did not claim to be in the class of exempt persons for the purposes of cl.186.234. There is no evidence that he is in that class, and the Tribunal so finds. Rather, the applicant relies on the fact, that at the time of his visa application on 7 October 2017, he had been employed as an Accountant (General) for 3 years, on a full time basis, and at the level of skill required for that occupation, and had a positive skills assessment from a relevant assessing body.

21. The Tribunal is satisfied from the information on the Department’s file that the applicant had a positive skills assessment for the occupation of Accountant (General), issued on 3 November 2016 by Chartered Accountants Australia and New Zealand. The Tribunal is satisfied that Chartered Accountants Australia and New Zealand is specified as one of the relevant assessing authorities for this occupation in IMMI 17/080. The Tribunal is further satisfied that this skills assessment was not issued for the purposes of a subclass 485 visa application, as it is stated to be for general migration, and that it was stated to be valid for 3 years. Finally, the Tribunal is satisfied that it was not issued more than 3 years before the applicant applied for the subclass 186 visa.

22. Accordingly, the Tribunal must now be satisfied that immediately before 7 October 2017, the applicant had been employed as an Accountant (General) on a full time basis, at the required skill level, for at least 3 years (that is, between 6 October 2014 and 6 October 2017).

23. In his visa application, the applicant claimed employment experience as an Accountant with his nominating employer, Herbs of Gold Pty Ltd, from 15 October 2013 to 6 October 2017, and stated that his duties were: preparing monthly financial reporting, management reporting, associated variance commentary, Month End closing, BAS Lodgement, preparing annual budget and analysis reports for management review, involving semi annual external audit, and preparing documents and required reports.

24. The reference letter from Mr Andrew O’Keefe, Managing Director of Herbs of Gold Pty Ltd, dated 5 October 2017, states that for the past 4 years, the applicant had been employed ‘in the capacity of assistant accountant moving to become an accountant due to the continuing increasingly workload and well-regarded performance…’

25. At the hearing, the Tribunal received detailed evidence from the applicant, Ms Lee (the former Finance Manager for Herbs of Gold Pty Ltd, who recruited the applicant and to whom he reported) and Mr O’Keefe, who was a director of the company at the time that the applicant joined, and who remains a director. Their evidence was consistent and credible, and indicated that the applicant initially joined the company as an unpaid intern undertaking finance and administrative related work on 22 August 2013, that he was then employed casually as an Accounts Receivable officer from October 2013, and that he was employed full time from January 2014 as an Accountant. His title in his January 2014 employment contract is Accountant. The Tribunal is satisfied from the oral and documentary evidence that the applicant was working at the skill level of a fully qualified Accountant from January 2014 onwards, despite his job title being Assistant Accountant for part of his employment. In reaching this conclusion, the Tribunal gives weight to the following:

    ·the tasks undertaken by the applicant – as described by the applicant, Ms Lee and Mr O’Keefe at hearing  – correspond closely with those listed in the ANZSCO occupational description of an Accountant, and are also summarised by the agent in a comparative table in her submissions of 10 December 2020;

    ·Ms Lee’s evidence that the title Assistant Accountant referred to the applicant’s role in assisting her in her role of Finance Manager, and not to the fact that he was not carrying out the full range of duties of an Accountant;

    ·the fact that the applicant was fully qualified to practise as an Accountant upon completion of his Masters of Accounting degree in 2012 and was not required to undertake a Professional Year period of supervised employment or similar; and

    ·in addition to the positive skills assessment for the occupation of Accountant (General) issued by CAANZ on 3 November 2016, CAANZ also specifically assessed the applicant as working at the appropriate skill level of an Accountant (General) from 15 October 2013 onwards in a letter dated 3 November 2016. The letter states ‘…[t]he following claims of skilled employment equate to work at an appropriately skilled level as an Accountant (General) 221111[for Herbs of Gold Pty Ltd] from 15/10/2013 to 20/09/2016 [the applicant having applied for this assessment in September 2016] … This assessment is based on the following items of evidence and does not constitute an opinion as to the veracity of the claims made: job description, work references, payslips…’

26. While the CAANZ letter of 3 November 2016 cited above does contain the proviso that the author cannot provide an opinion as to the veracity of the applicant’s employment claims, it also states that it is based on documentary evidence including the applicant’s job description, work references and payslips, all of which refer to him as an Accountant. Given the detailed and credible evidence of the applicant, Ms Lee and Mr O’Keefe at hearing, the Tribunal is satisfied of the veracity of the oral and documentary evidence about the applicant’s employment with Herbs of Gold Pty Ltd, and thus gives weight to the opinion of one of the relevant Australian assessing authorities for the occupation of Accountant (General) that the applicant was working at the required skill level for an Accountant (General) at least 3 years before 7 October 2017.

27. The Tribunal notes that the CAANZ letter of 3 November 2016 considers that the applicant was working at the required skill level of an Accountant (General) from 15 October 2013 onwards, whereas the oral and documentary evidence from the applicant and Ms Lee was that the applicant was fully engaged as an Accountant on a full time basis from 1 January 2014. As the applicant’s contract of employment as an Accountant is dated 1 January 2014, the Tribunal accepts that the applicant was working as an Accountant (General) for Herbs of Gold Pty Ltd, at the required skill level and performing the range of tasks set out in ANZSCO from 1 January 2014 onwards, providing services relating to financial reporting, taxation, auditing, accounting information systems, budgeting, cost management, planning and decision-making and providing advice on associated compliance and performance requirements to ensure statutory and strategic governance.

28. This means that he had at least 3 years of employment as an Accountant (General) with Herbs of Gold Pty Ltd by the time he made his subclass 186 visa application on 7 October 2017.

29. Therefore, cl.186.234 is met.

30. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

31. As the second named applicant applied as a member of the family unit of the applicant, the outcome of her application will be determined by the outcome of the applicant's application upon reconsideration by the Department.

    DECISION

32. The Tribunal remits the applications Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.234 of Schedule 2 to the Regulations.

    Alison Mercer
    Member