CHEN (Migration)

[2017] AATA 288

CHEN (Migration) [2017] AATA 288 (22 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Szu-Fan Chen

CASE NUMBER:  1503980

DIBP REFERENCE(S):  BCC2015/568943

MEMBER:Wan Shum

DATE:22 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2017 at 11:25am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Graduate Work stream – Subclass 485 – Australian study requirement – Qualification related to nominated position – Accountant (General) – Advanced Diploma of Translating – Qualification not closely related to position

LEGISLATION

Education Services for Overseas Students Act 2000, s 9

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 1.03, r 1.15F, r 2.26AC(6), cl 485.111, cl 485.221, cl 485.222, IMMI 09/040, IMMI 15/091

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 16 March 2015 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 20 February 2015. Visa Class VC contains Subclass 485. 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 finding that the applicant did not satisfy the Australian study requirement in cl.485.222 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 15 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 these requirements.

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:

   ·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.

8. ‘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).

9. The applicant indicated on the visa application form that she had completed the following study in Australia: Master of International Business at Macquarie University from 1 March 2009 to 9 July 2010; Graduate Diploma in Professional Accounting at Victoria University from 1 March 2013 to 11 November 2013; and Advanced Diploma of Translating at the Sydney Institute of Interpreting and Translating from 17 March 2014 to 29 August 2014.

10. PRISMS records indicate that at the time, the Master of International Business and Graduate Diploma in Professional Accounting courses were each registered for 52 weeks. The Advanced Diploma of Translating at the Sydney Institute of Interpreting and Translating was registered for 24 weeks. The applicant is relying on all of these courses to meet the Australian study requirement.

11. Clause 485.222 relevantly requires that each of the degrees, diplomas or trade qualifications used to satisfy the Australian study requirement must 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 in relation to a person who applies on or after 1 July 2014 but before 1 July 2015 for a Subclass 485 visa is Legislative Instrument IMMI 15/091.

12. The applicant had nominated the occupation of Accountant (General) in her application which is an occupation specified in IMMI 15/091 with ANZSCO Code 221111. The applicant must therefore demonstrate how each of her qualifications is closely related to the occupation of Accountant (General).  

13. As noted above, the delegate, with reference to policy guidance, found that the Advanced Diploma of Translating was not closely related to the occupation of Accountant (General). The delegate was of the view that the skills set underpinning the qualification was not directly transferable in terms of subject matter. The Tribunal also has concerns as to whether this qualification meets the requirements of being closely related to the nominated occupation and raised this with the applicant at hearing. On review, the applicant’s representative submitted that the question to be asked is whether the Diploma of Translating is closely related to the occupation of accountant and not the subject matter of accountancy. It was stated that “the intention of the closely related criterion is to support the policy objective that VC-485 visa applicants have the skills necessary to perform their nominated occupation and to positively contribute to the Australian ​​economy and society as soon as possible" (PAM 3, 9.1).” Her representative submitted that he believed that the skills set for a professional accountant required at least sound knowledge of the subject matter practiced; and communication skills such as using English language. It was submitted that communication skills were necessary to the occupation and that an Advanced Diploma of Translating course was conducive to the improvement of communication skills.

14. The Tribunal has had regard to the ANZSCO description for the occupation of Accountant (General) occupation, which is that an Accountant “plans and provides systems and services relating to the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements.” The tasks of an Accountant as listed in ANZSCO include preparing financial statements for presentation; assisting in formulating budgetary and accounting policies; examining operating costs and organisations’ income and expenditure; and conducting financial investigations.

15. The Advanced Diploma of Translating qualification, according to the SIIT website, is aimed at obtaining skills and knowledge to “translate special-purpose texts from one language to another to convey information written using specific terminology for a specific audience”. When asked about the course at the hearing, the applicant stated that her studies consisted of being given various articles on a range of topics such as law, business, health, science and then translating them. The core units of competency for this course are listed as follows: Negotiate translating and interpreting assignments; Prepare to translate and interpret; Analyse texts to be translated; Demonstrate written language proficiency in different subjects and cultural contexts; Apply codes and standards to ethical practice; Quality assure translations. The applicant’s record of results from SIIT include these core units and six other elective units: Translate special purpose texts from English to LOTE; Translate special purpose texts from LOTE to English; Translate multimedia source material; Apply theories to translating and interpreting work practices; Maintain and enhance professional practice; Prepare translated transcripts.

16. The units of competency for the qualification are to ensure competency in translating text or written information from one language into another language. There does not appear to the Tribunal to be the relevant relationship between this qualification and the occupation of Accountant. It does not consider that the above units of competency completed by the applicant in the Advanced Diploma of Translating qualification as a whole to be closely related to the tasks to be carried out by an Accountant as set out in ANZSCO.

17. The applicant claims that her language skills were a barrier following her completion of her Master of Accounting course so she undertook the translating course and her English language ability improved. She stated at hearing that she is planning to work in a multinational company, while in her statement she wrote that she plans to join an international accounting firm after she returns to Taiwan and that quality language translation would improve the efficiency of communication in the specific working environment. In her statement, she further wrote that it is important to be able to understand the technical and professional words in both Chinese and English and that the translation course would benefit her future career in accounting positions. She considers translation skills “compulsory for [her] future development in the specific domain of accounting in Taiwan”. At hearing she said that she might be able to help her future colleagues with her translating skills.

18. However, the Tribunal does not accept that translation skills are compulsory or necessary for an Accountant as claimed. In considering whether a qualification is closely related to the nominated occupation, it is not undertaking an assessment of whether any skills obtained from a qualification would benefit the applicant or be useful for a future job. It is required to consider whether the qualifications are closely related to her nominated occupation and not any potential job in a particular type of company or her future career. It was submitted that communication is an important skill set for a professional accountant and that an Advanced Diploma of translation course is conducive to the improvement of such skills. While communication skills are important and could be said to be ‘necessary’ in a general sense, this is not the relevant test for ‘closely related’. It requires a relevant relationship between the nominated course of study and the nominated occupation. In any case, it is noted that the translating qualification is not directed at improving communication skills. None of the units are specifically addressed at communications. The units of competency for the qualification are to ensure competency in translating text or written information from one language into another language. The Tribunal does not consider that the qualification is related to the occupation of Accountant, being a person who “plans and provides systems and services relating to the financial dealings of organisations and individuals, and advises on associated record-keeping and compliance requirements.”

19. Having regard to the units of competency for the qualification as a whole, the Tribunal does not consider that the qualification is ‘closely related’ to the nominated occupation of Accountant.

20. As the applicant’s qualification in translating is not closely related to the nominated skilled occupation of Accountant, the applicant does not meet cl.485.222.

21. 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

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

    Wan Shum
    Member