Chitkara (Migration)

Chitkara (Migration) [2017] AATA 291 (23 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Chitkara Pty Ltd
VISA APPLICANTS:  Mr Navneet Gupta
Mrs Pooja Gupta
Miss Lavanya Gupta
Mr Ruhaan Gupta
CASE NUMBER:  1514201
DIBP REFERENCE(S):  BCC2014/3289145
MEMBER:Hugh Sanderson
DATE:23 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 23 February 2017 at 8:12am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications or employment background – Accountant (General) – Bachelor of Commerce – Not relevant to occupation – Necessary skills
LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 2 December 2014.
At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
The delegate refused to grant the visas on 29 September 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied the visa applicant had the skills, qualifications or employment background necessary to perform the tasks of the nominated occupation.
Background
The first named visa applicant (hereinafter “the applicant”) is a citizen of India and is currently 37 years old. The second named visa applicants are his wife and two children. The applicant was sponsored by the review applicant, Chitkara Pty Ltd, which sponsored him for the position of an accountant.
The delegate who considered the application noted the following issues:
·The necessary skills and qualifications for the position of an Accountant (General) in ANZSCO occupation code 221111 was that a person should hold a bachelor degree or higher qualification in that area and, in some instances, relevant experience or on-the-job training may be required in addition to the formal qualification;
·The applicant obtained a Bachelor of Commerce in 1998 which is not an accounting degree;
·The applicant claimed to have worked as an assistant accountant for SARB and Associates, Chartered Accountants from February 2010;
·When departmental officers contacted a partner of that business it was stated that the applicant only worked part-time (25 hours per week) and takes care of enquiries from clients and assists the partner;
·Inconsistent information was provided to that in the letter from the applicant as to the terms of the applicant’s employment, his hours and days of work, and his salary; and
·The applicant subsequently stated that he worked with a different business as an accountant three days per week, six hours per day, however, insufficient evidence was provided to substantiate this claim.
Taking these factors into account, the delegate was not satisfied that the applicant’s formal qualifications was in the relevant field of his nominated occupation or was at a lower level than the nominated occupation. The delegate was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated position and therefore found that the applicant did not meet the criteria in cl.457.223(4)(da) and refused the application. The delegate found that as the visa applicant did not meet the criteria the second named visa applicants also did not meet the criteria and refused their applications.
Information to the Tribunal
The review applicant appeared before the Tribunal on 13 February 2017 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.
The review applicant said the visa applicant is married to his sister so is his brother-in-law.
The review applicant said that he believed that a Commerce degree is the same thing as an Accounting degree and that it is recognised as the same in India. He said the visa applicant may have to do another course in Australia for only six weeks so that he could get the qualifications to work as an accountant.
The Tribunal noted that there may be overlap in the qualifications in obtaining a Commerce degree to that of obtaining an Accounting degree, but they were two separate qualifications. The review applicant said that this was not how it was in India and they could be seen as the same thing.
The review applicant said that the visa applicant was working full-time with SARB from 2010 until November 2014, just before he filed his application, when he started working part-time. He said that the references from SARB and the statement from the visa applicant did not reflect this because they only stated what they were doing at that time, and not the hours that the applicant had been working previously. The Tribunal noted that this was not plausible as the visa applicant needed to be assessed based on his skills, qualifications and employment background which required a look at all his work history. It was also not plausible when the visa applicant had provided details of his work from December 2007 to December 2009. The review applicant said that as it has to be up to date, he only gave the work hours that he was working at that time. He said that he only started working with SARB part-time from November 2014. He said that he started working part-time for another company, but this was for only three weeks in January 2015. He said that the visa applicant does not have anything from this company as he left there as he was offended that he was not offered full-time work by them.
The review applicant said the visa applicant was an assistant accountant. He claimed that he did auditing and other accounting work. The Tribunal noted this was inconsistent to the information provided to the Department from the relevant partner in SARB & Associates. This was that he was working as an account assistant with his job was described as managing accounts payable and receivable of the company and entering them into the system, assisting the accountant in preparing and finalising the accounts of the client companies and other clients. This called into question the credibility of the information now being provided by the review applicant and the visa applicant as to his work and qualifications. It was noted that the position described by Mr Vashney of the visa applicant working as an “accounts assistant” was not the same as working as an accountant.
The review applicant said that Mr Vashney was nervous when he spoke to the Department and that after he had spoken to him three times he had agreed to provide a statement which would correctly set out the visa applicant’s work. He said that in India people use all different descriptions for the work as an accountant and that the visa applicant was doing auditing. The review applicant could not explain why Mr Vashney would have been nervous speaking to an officer from the Department or that he would have provided incorrect information as to the visa applicant’s work.
The review applicant provided further documents to the Tribunal after the hearing including the following:
·Statement from S. R. Varshney, the employer of the visa applicant, dated 17 February 2015;
·Certificate of Bachelor of Commerce of the visa applicant;
·Statement of marks of the visa applicant; and
·Details of the syllabus for the Bachelor of Commerce.
In the statement from Mr Varshney it was claimed that as the visa applicant had not completed his Chartered Accountancy (CA) and has an accounting background he had been assisting him and other CAs working on various clients data to compute the clients tax liability, organising such liabilities to be settled by the clients. It was claimed the visa applicant had worked independently in preparing accounting, budgetary, financial and other reports as part of his job duties.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).
Skills, qualification and employment background of the applicant
Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is accountant (general).
The description and qualifications needed for the position of an accountant (general) in ANZSCO states as follows:
ACCOUNTANTS provide services relating to financial reporting, taxation, auditing, insolvency, accounting information systems, budgeting, cost management, planning and decision-making by organisations and individuals; and provide advice on associated compliance and performance requirements to ensure statutory and strategic governance.
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. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Registration or licensing may be required.
Tasks Include:
oassisting in formulating budgetary and accounting policies
opreparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
oconducting financial investigations, preparing reports, undertaking audits and advising on matters such as the purchase and sale of businesses, mergers, capital financing, suspected fraud, insolvency and taxation
oexamining operating costs and organisations' income and expenditure
oproviding assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
oproviding financial and taxation advice on business structures, plans and operations
opreparing taxation returns for individuals and organisations
oliaising with financial institutions and brokers to establish funds management arrangements
ointroducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
omaintaining internal control systems
omay appraise cash flow and financial risk of capital investment projects

Occupations:
221111 Accountant (General)
221112 Management Accountant
221113 Taxation Accountant

221111 ACCOUNTANT (GENERAL)

Provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems; and advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing.
Skill Level: 1
The visa applicant has provided evidence that he holds a Bachelor of Commerce issue to him from the University of Delhi. Although a Bachelor of Commerce degree shares certain overlap with a Bachelor of Accounting degree, they are distinct qualifications. The fact that an individual holds a Bachelor of Commerce does not mean they hold the qualifications to practice as an accountant. They would not have completed all the courses required to obtain a Bachelor of Accounting or obtained training in respect of the work which would be expected of an accountant as described above.
The Tribunal finds that the fact that the applicant may hold a Bachelor of Commerce does not, of itself, indicates a level of qualifications or skills required to practice as an accountant.
The Tribunal has taken into account the work experiences claimed by the visa applicant. The applicant’s CV indicates that his first job after completing his Bachelor of Commerce in 1999 was with Satyam Infoway Ltd from January 2002 to November 2006. He then worked with Global Tele-systems Ltd from December 2007 to December 2009. Neither of these positions indicate that the visa applicant was doing the work of an accountant.
The applicant claimed in his CV that he was employed by SARB and Associates Chartered Accountants from February 2010 to the present. He did not state in the CV that he was only employed three days a week on a part-time basis. This information was only obtained after an officer from the Department spoke to an officer from that firm. During the hearing, the review applicant claimed that the visa applicant was working full-time until November 2014 which was why there was the inconsistency in the information provided to the Department. This information is again inconsistent with the letter provided by Mr Vashney which states that the visa applicant was working part-time until October 2014 and then from November 2014 he was not aware of his work schedule as he did not keep track of all employees. He then states that he continued to work part-time, working on Thursday, Friday and Saturday.
The visa applicant, in his CV, provided claims as to the work he did whilst working with SARB. These claims are reflected in letters provided to the Department and Tribunal after the hearing from Mr Varshney. It sets out the work which would be expected to have been done by an accountant. It is inconsistent with the information that was given to the Department from Mr Varshney when he was contacted by them independent of the visa applicant.
When interviewed by the Department, Mr Varshney stated that the visa applicant’s job was managing accounts payable and receivable of the company and entering them into the system. This is not the work of an accountant but somebody managing accounts or bills being sent to clients for the work done by an accountant.
The review applicant claimed that Mr Varshney gave this evidence which undermined the claims of the visa applicant to the Department because he was nervous. The Tribunal does not accept that if the visa applicant was working as an accountant for SARB that Mr Varshney, as his supervisor, would not be able to adequately described his work as an accountant if the visa applicant did the work as Mr Varshney is now claiming in his statement dated 17 February 2015. That this statement is inconsistent with the information provided by Mr Varshney directly to the Department calls into question the credibility of the information now being provided as to the work claim to have been done by the visa applicant.
The Tribunal does not accept that the work done by the visa applicant at SARB has provided him the skills or employment background which would be necessary to perform the tasks of an accountant. The Tribunal finds that the visa applicant’s role at SARB has been as a part-time accounts manager, organising the bills to be sent to clients and providing some assistance in responding to clients’ enquiries and providing unskilled assistance to partners of the firm. The Tribunal is not satisfied that the work the visa applicant has been engaged in whilst working with SARB would have provided him the skills or employment background necessary to perform the tasks of an accountant.
The visa applicant also claimed to have worked part-time for a second job. The review applicant stated that this was for only a part-time and for only three weeks. No independent information has been provided as to the role of the applicant in that position or any details of that work. The Tribunal places no weight on the work the applicant claimed to have participated in when considering whether the visa applicant has the skills, qualifications or employment background necessary to perform the tasks of an accountant.
The Tribunal has considered the skills, qualifications and employment background of the visa applicant both individually and cumulatively. As set out above, the Tribunal is not satisfied that the applicant’s qualification of a Bachelor of Commerce provides him with the qualifications which would be necessary to perform the tasks of an accountant. The Tribunal is not satisfied that the employment background or work the visa applicant has engaged in would have provided him the necessary skills to perform the tasks of an accountant. Further, the Tribunal is not satisfied that in combination the skills, qualifications and employment background of the visa applicant are sufficient to be necessary to perform the tasks of an accountant.
For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da).
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
The second named visa applicants have not made any claims against the primary criteria for the grant of the visa. As the first named visa applicant does not meet the criteria for the grant of the visa on the only claims made by the second named visa applicants are that they are members of his family unit, the second named visa applicants also do not meet the criteria for the grant of a visa and the decision to refuse their applications must also be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Hugh Sanderson
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii)    the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii)   the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)    each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i)    the applicant’s intention to perform the occupation is genuine; and
(ii)    the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)if:
(i)    the applicant is not an exempt applicant; and
(ii)    subclause (6) does not apply to the applicant;
the applicant:
(iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)    it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.

[2017] AATA 291

23 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction