Gott (Migration)

[2019] AATA 2413

Gott (Migration) [2019] AATA 2413 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan Mickle Gott

CASE NUMBER:  1811676

HOME AFFAIRS REFERENCE(S):           BCC2018/939149

MEMBER:Jennifer Cripps Watts

DATE:8 May 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 08 May 2019 at 5:06pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Bachelor of Commerce – Master of Professional Accounting – Accountant – academic qualifications closely related to nominated occupation – Australian study requirement – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.15, 2.26, Schedule 2, cls 485.111, 485.221, 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 Home Affairs on 9 April 2018 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 27 February 2018. 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 his academic qualifications were closely related to the nominated occupation of Accountant.

4. The applicant was represented in relation to the review by his registered migration agent, Mr Lewis Bollard.

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

   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 those requirements.

7. An applicant may satisfy the Australian study requirement with, relevant to this case, two qualifications; Bachelor of Commerce and Master of Professional Accounting.  Each qualification must be a degree as defined by r.2.26AC(6) and be courses that were registered courses as defined by r.1.03 (r.1.15F(1)(a)), for which all instruction was conducted in English (r.1.15F(1)(d)), that the applicant undertook while in Australia holding a visa authorising study (r.1.15F(1)(e)).  If these criteria are met and the qualifications were completed in a total of at least 16 calendar months (r.1.15F(1)(b)) and as a result of a total of at least 2 academic years study (r.1.15(1)(c)), then the applicant will satisfy the Australian study requirement.   

   Does the applicant meet the Australian study requirement?

8. 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.

9. ‘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).

10. The Bachelor of Commerce and Master of Professional Accounting are both degrees as defined and, on the documentary evidence provided by the applicant, were awarded by the University of Wollongong with distinction.  They were of 104 and 78 weeks duration respectively, which combined is more than a total of at least 16 calendar months and were completed as a result of a total of at least 2 academic years study.  The Tribunal is satisfied, on the evidence, that instruction was in English and that the applicant held a student visa at the relevant times.

11. The applicant completed his most recent qualification, the Master of Professional Accounting, on 31 December 2017.  He lodged the visa application that is the subject of this review on 27 February 2018.

12. 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.

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

13. 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 18/007.

14. In this case, the applicant nominated the occupation of Accountant (General) ANZSCO code 221111 which is a skilled occupation specified in the relevant instrument.

15. Each degree used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation.  The words ‘closely related’ are not defined in the legislation but they require and call attention to the connection between two things. They do not require an exact correspondence, however the relationship must be more than merely complementary.  The Tribunal must focus on the nominated occupation, as opposed to an applicant’s proposed occupation or career path and, for this purpose, substantial weight has been given to the contents of the ANZSCO description for Accountant (General) that describes the occupation as one involving someone 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. Registration or licensing is required.’

16. The ANZSCO description includes the following tasks:

    a.assisting in formulating budgetary and accounting policies

    b.preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies

    c.conducting 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

    d.examining operating costs and organisations' income and expenditure

    e.providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements

    f.providing financial and taxation advice on business structures, plans and operations

    g.preparing taxation returns for individuals and organisations

    h.liaising with financial institutions and brokers to establish funds management arrangements

    i.introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems

    j.maintaining internal control systems

    k.may appraise cash flow and financial risk of capital investment projects

17. The applicant completed a Bachelor of Commerce at the University of Wollongong over three years which he completed in 2013, with a total of 28 subjects.  The Tribunal has carefully considered the academic transcript provided by the applicant and is satisfied that a very substantial majority of the units in the Bachelor of Commerce are directly transferable to the nominated occupation.

18. In the 6 months immediately before the visa application, the applicant completed a Master of Professional Accounting.  The Tribunal is satisfied that the whole of this course is closely related to the nominated occupation.

19. The description of the occupation refers to an Accountant providing systems and services relating to financial dealings.  The Tribunal is satisfied that each of the courses is closely related and that they are each more than merely complementary to the skill set in the occupation of Accountant (General) as set out in ANZSCO.

20. As the applicant’s qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

21. 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

22. 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