Hour (Migration)

[2020] AATA 1552

Hour (Migration) [2020] AATA 1552 (13 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kaorn Hour

CASE NUMBER:  1725215

HOME AFFAIRS REFERENCE(S):          BCC2017/2995826

MEMBER:Warren Stooke AM

DATE:13 February 2020

PLACE OF DECISION:  Melbourne

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 13 February 2020 at 1:52pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Accountant (General) – Australian study requirement – two academic years of relevant study – courses closely related to the nominated skilled occupation – relationship more than merely complementary – two distinct qualifications – decision under review remitted        

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 458.221, 485.222; r 1.15

CASES

Talha v Minister for Immigration and Border Protection [2015] FCAFC 115

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 and Border Protection on 28 September 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 applied for the visa on 21 August 2017. 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 on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate found that the applicant had only completed 78 weeks of a registered course, which did not satisfy Regulation 1.15F(c) of 92 weeks of Australian study.

4. The applicant appeared before the Tribunal on 12 February 2020 to give evidence and present arguments.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 28 September 2017 and that he understood the content of the decision. In this regard, the applicant stated that the decision to reject his application was because the reason mentioned by the delegate’s decision was that his courses were not closely related.

6. The applicant confirmed that he had provided a copy of the delegate’s decision to the Tribunal with his application.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. The applicant is a 29 year old from Cambodia, who provided evidence that he had completed the following courses:

    a.Certificate IV in Front Line Management - 1 Feb 2011 to 11 June 2011

    b.Advanced Diploma of Management – 1 Feb 2012 to 30 June 2012

    c.Bachelor of Management – 4 July 2012 to 10 July 2014

    d.Master of Professional Accounting – 7 July 2015 to 6 July 2017

11. In addition, the applicant  gave evidence that he had completed a Certified practicing Accountant qualification on 25 July 2017. [Tribunal File; Folio 31]

12. The applicant gave evidence that he has a Bridging Visa A and has full permission to work and maintains medical health cover with BUPA, which is a condition of his visa.

13. The applicant confirmed to the Tribunal that he has not applied for any other visa.

14. The applicant gave evidence that he is currently working full-time with a licensee to Telstra in an accounting position, which involves invoicing; balancing stock reconciliation of technological stock; daily reports relating to the cash-flow and receipts. The applicant stated that his current salary was $67,000.

15. The applicant provided the Tribunal with evidence that he had completed a Bachelor of Business at Deakin University, which included the subject transcript for the studies undertaken. [Tribunal File: Folio 23-24]

16. The applicant also provided the transcript relating to a completed Certificate IV in Frontline Management and Advanced Diploma of Management. The Tribunal noted that these two courses, which were credited to the applicant toward qualifying for his Bachelor degree at Deakin, included the Finance based subjects: Manage Finances; Manage Risk; Report on Financial Activity and Analyse and Present Research Information. As such, these two VET sector courses were completed over a period of 12 months, including break time, with 22 per cent of the courses completed being finance based. [Tribunal File: Folio 20-21]

    Does the applicant meet the Australian study requirement?

17. 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.

18. ‘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, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.  LIN 19/085 as prescribed in the Register of Instruments for Skilled visas.

19. The Tribunal is satisfied that the applicant completed a Master of Professional Accounting course at Deakin University, which is a registered course on the CRISCOS website as 78 weeks in duration.

20. Further, the Tribunal is satisfied that the applicant obtained credit for four subjects towards his Bachelor of Management, which were financed based and directly related to the occupation of Accountant (General) ANZSCO 221111. As such, the Tribunal is satisfied that the four subjects, that comprised 8 unit credits, represented 33.3 per cent of the two year academic period of 92 weeks, which equates to approximately 30.64 weeks of academic study.

21. On the basis of the Master of Professional Accounting course at Deakin University, which comprises of 78 weeks duration and the Bachelor of Management course, that comprised the equivalent of 30.64 weeks duration, the Tribunal is satisfied that the applicant has completed in excess of 92 weeks of academic study over a period greater than 2 years and that all courses were instructed in the English language, whilst holding a valid visa.

22. 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?

23. 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 13/065 of Register of Instruments - Skilled visas.

24. In this case, the applicant nominated the occupation of Accountant (General) ANZSCO 221111, which is a skilled occupation specified in the Register of Instruments - Skilled visas.

25. The Tribunal is satisfied that the applicant obtained a Bachelor of Management at Deakin University that included specific modules directly related to the occupation of accounting and subsequently completed a Master of Professional Accounting. As such, the Bachelor of Management degree has a component of course study directly related to the occupation and the Master of Professional Accounting has an absolute relationship to the occupation. In this regard, the Tribunal is satisfied that the two qualifications meet the ‘closely related’ requirement.

26. The Tribunal, in determining whether the course undertaken by the applicant is ‘closely related’ to the descriptor for an Accountant (General) ANZSCO 221111, is satisfied that the Bachelor of Business course of study undertaken by the applicant, is ‘closely related’. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:

    “[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
    
    (Emphasis added).

    The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”

27. As the applicant’s Bachelor of Management qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

28. 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

29. 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.

    Warren Stooke AM
    Member