Bhandari (Migration)

[2018] AATA 3536

Bhandari (Migration) [2018] AATA 3536 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dipendra Bhandari

CASE NUMBER:  1710729

DIBP REFERENCE(S):  BCC2017/1196306

MEMBER:Kira Raif

DATE:24 July 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 24 July 2018 at 11:46am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Qualifications related to nominated occupation – Most recent qualification – ANZSCO description of occupation – reason for course – not an assessment on individual skills – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15I, Schedule 2 cl 485.222

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 17 May 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 is a national of Nepal born in October 1984. He applied for the visa on 29 March 2017. 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 the applicant’s qualifications were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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.

6. Clause 485.221 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).

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

7. The applicant had nominated the occupation of Internal Auditor in his application. The Tribunal is satisfied it is a skilled occupation.

8. The applicant stated on the application form that he completed the following qualifications

   11/09 – 7/11    Adv Diploma of Accounting, Australian College of Technology (ACT)

   7/12 – 7/14     Bachelor of Business Accounting, King’s Own Institute

   9/16 – 3/17     Diploma of Leadership and Management, ACT

9. The applicant provided with the application evidence of these qualifications, academic transcripts and other materials. He also provided copies of his transcripts and qualifications to the Tribunal. The applicant confirmed the completion of the above courses in his oral evidence to the Tribunal. The applicant told the Tribunal that between 2014 and 2016 he did an MBA but did not complete the course because of personal circumstances.

10. The Tribunal notes that the only course which the applicant completed in the period of 6 months immediately before the day the application was made was the Diploma of Leadership and Management at ACT. The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement.

11. For the purpose of cl. 485.222 the Tribunal must consider whether each qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. In particular, the Tribunal must consider whether the Diploma of Leadership and Management is closely related to the occupation of Internal Auditor.

12. In oral evidence to the Tribunal the applicant stated that the Diploma of Leadership and Management is closely related to the occupation of internal auditor because he would have to do management in the workplace. However, that is not apparent from the ANZSCO description of the occupation. According to ANZSO, an internal auditor performs the following tasks:

    221214 INTERNAL AUDITOR

    Alternative Title:
    Audit Officer

    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 may be required.

13. There are no management tasks in that occupation, contrary to the applicant’s submission.

14. The applicant claims that he has done the same subjects in the other qualification. The academic transcripts show that there was some overlap in terms of subjects although the Bachelor course and the Advanced Diploma were more targeted and extensive. However, even if the subjects in these courses were the same or similar, the issue before the Tribunal is the close relationship between entire qualification and the nominated occupation and not a comparison of subjects between different qualifications the applicant had completed. It is not sufficient to state that one course is similar to another course, the close relationship must exist between the qualification and the nominated occupation and not between courses.

15. The applicant subsequently claimed that the Diploma of Leadership was different to his earlier courses because he did not want to do the same study again and again and he chose something different. That may be the case but whatever the applicant’s motivations for doing this course were and whether the applicant found the course more useful than his earlier courses, this does not render the course any more or less related to the nominated occupation.

16. The applicant said that as an auditor, he would have to manage the tasks that he performs and manage his time but the Tribunal is not satisfied that a Diploma of Leadership and Management is designed to assist with task management and time management. The applicant also said that if he was to lead a team of auditors, he would require management and leadership skills, however, the applicant did not nominate the occupation of team leader or a manager but that of an internal auditor. The Tribunal does not consider that managing a team of internal auditors is part of that role.

17. The applicant told the Tribunal that after finishing his other courses, he had issues with managing his tasks and time and needed to do another course. The Tribunal finds that submission unpersuasive. The Tribunal does not accept that after completing an Advanced Diploma of Accounting and a Bachelor of Business Accounting, the applicant did not learn how to manage his time and manage tasks and that he acquired these skills in the Diploma of Leadership and Management. Further, as noted above, the assessment must be in relation to the entire occupation and not individual skills the applicant claims to have acquired in the course of his studies.

18. The applicant states that the skills he learned in the Diploma are broad skills that can be used in any workplace, such as creating a safe work environment, project management, managing customer service, etc. The Tribunal acknowledges that the applicant may consider these broad skills to be useful to his occupation or to his future career but again, the Tribunal does not consider these to be the tasks performed by internal auditors as set out in ANZSCO and it is the objective criteria for the occupation, rather than the applicant’s or his employer’s expectation, that are relevant here. Further, being useful is not sufficient. There must be a close relationship, rather than a degree of usefulness.

19. The applicant claims that he learned ‘major objectives’ in his earlier courses and the ‘minor objectives’ in the Diploma course. The applicant read out some of the subjects he completed in the Diploma course, stating he could perform these tasks. However, the Tribunal must assess the applicant’s qualifications against the objective standards for the occupation, such as those set out in ANZSCO and not what the applicant himself believes he might do in his employment.

20. The applicant provided to the Tribunal an extract from an internet article on the issue of ‘closely related’. The Tribunal considers internet articles unhelpful in interpreting the legal requirements.

21. Having considered the applicant’s claims, the Tribunal is not satisfied that the Diploma of Leadership and Management is closely related to the nominated occupation of Internal Auditor. The applicant suggested that his other qualifications may be closely related but it is not necessary for the Tribunal to make that determination because each of the qualifications used to satisfy the Australian study requirement must be closely related to the nominated occupation and the Tribunal has found that the applicant relied on the Diploma to meet the Australian study requirement. The Tribunal is not satisfied the applicant meets cl. 485.222.

    Conclusion

22. 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 will be affirmed.

    DECISION

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

    Kira Raif
    Senior Member