Jin (Migration)

[2020] AATA 5748

Jin (Migration) [2020] AATA 5748 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Qimeng Jin
Mr Jinwei Cai

CASE NUMBER:  1903828

HOME AFFAIRS REFERENCE:               BCC2018/3591275

MEMBER:L. Symons

DATE:3 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 3 December 2020 at 4:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Accountant (General) – Australian study requirement  – Master of Public Health – qualification ‘closely related’ to nominated occupation  – ANZSCO descriptions – positive skills assessment issued by Chartered Accountants Australia and New Zealand – qualitative research skills – whether skills acquired from qualification directly transferable to nominated occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 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 31 January 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 21 September 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 visas because the first named applicant, Ms Jin, did not satisfy cl.485.222 of Schedule 2 to the Regulations because her Master of Public Health degree from the University of Sydney completed on 21 July 2018 used to satisfy the Australian study requirement was not closely related to her nominated skilled occupation of Accountant (General) (ANZSCO Code 221111).

4. On 19 February 2019, the applicants applied to the Tribunal for a review of the decision of the Department of Home Affairs (the Department). The Tribunal was provided with a copy of the Department’s Decision Record dated 31 January 2019.

5. Ms Jin appeared before the Tribunal on 17 August 2020 to give evidence and present arguments. She was assisted by an interpreter in the Mandarin and English languages. Mr Jinwei Cai did not attend the hearing. Ms Jin was represented in relation to the review by her registered migration agent, Mr Xuepeng Li, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. Ms Jin is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of Schedule 2 to the Regulations. Clause 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement is ‘closely related’ to Ms Jin’s nominated skilled occupation. She has nominated the skilled occupation of Accountant (General) (ANZSCO 221111). The issue in the present case is whether she meets this requirement.

   Relevant law

8. The term 'closely related' is not defined in the legislation but it has been considered by the Courts which have held that the connection between the two things do not require an exact correspondence[1] but must be more than merely complementary.[2]

   [1] MIBP v Dhillon (2014) 227 FCR 525.

   [2] Uddin v MIAC [2010] FCA 1282.

9. In making the assessment, it is necessary to focus on the nominated occupation rather than on the applicant’s claimed or proposed occupation or career path. The Courts have held that the decision maker, in this case the Tribunal, is entitled to give substantial weight to the contents of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) descriptions.[3]

   [3] Manik v MIAC [2012] FMCA 149 citing Shukla v MIAC [2010] FMCA 625, Kabir v MIAC [2010] FMCA 577 and Chawdhury v MIAC [2010] FMCA 275.

10. More recent authority suggests that the nature of the nominated occupation must be determined by reference to ANZSCO[4] and that the ANZSCO code needs to be read as a whole including, not only the statement of tasks specified in the relevant unit group or at the lower level of the occupation itself, but also relevant information in the higher groupings into which the nominated occupation falls.[5]

    [4] Talha v MIAC [2015] FCAFC 115.

    [5] Ibid.

11. It is also appropriate to objectively consider the relationship of the applicant's qualification or qualifications to the ANZSCO definition of the occupation rather than relying on the applicant's own description of what the occupation entails, or the applicant's own view of the proximity of the qualifications to the nominated occupation.[6]

    [6] Chawdhury v MIAC [2010] FMCA 275.

12. Where more than one qualification is being used to satisfy the study requirement, all the courses must be closely related to the nominated skilled occupation. This requires a comparison between each qualification and the skilled occupation, not a comparison between the two or more qualifications.[7] 

    [7] Manik v MIAC [2012] FMCA 149 at [23] to [24], upheld on appeal in Manik v MIAC [2012] FCA 619.

13. It is ultimately a matter for the decision-maker, in this case the Tribunal, to decide whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated skilled occupation.[8] The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it. [9]

    Is each degree, diploma or trade qualification used by Ms Jin to satisfy the Australian study requirement closely related to her nominated skilled occupation?

    [8] Talha v MIAC [2015] FCAFC 115 at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 at [26].

    [9] Constantino v MIBP [2013] FCA 1301 at [27].

14. Ms Jin nominated the skilled occupation of Accountant (General) ANZSCO 221111 which is a skilled occupation specified in the relevant legislative instrument IMMI 18/051. The qualifications she is relying on to satisfy the Australian study requirement are a Bachelor of Business (Professional Accounting) degree and a Master of Public Health degree. The issue, therefore, is whether each of her Bachelor of Business (Professional Accounting) degree and her Master of Public Health degree are closely related to her nominated skilled occupation of Accountant (General).

15. Ms Jin provided the Department and the Tribunal with a number of documents to support her application for a subclass 485 visa. This included the following:

    ·Academic Transcript for a Bachelor of Business (Professional Accounting) degree from the Elite Education Institute.

    ·A positive skills assessment dated 12 July 2016 for the occupation of Accountant (General) 221111 issued by Chartered Accountants Australia and New Zealand.

    ·Master of Public Health degree from the University of Sydney conferred on 5 December 2018.

    ·Academic Transcript for the Master of Public Health degree from the University of Sydney.

16. The Tribunal accepts that Ms Jin’s Bachelor of Business (Professional Accounting) degree from the Elite Education Institute is closely related to her nominated skilled occupation of Accountant (General) ANZSCO 221111. Her positive skills assessment issued by Chartered Accountants Australia and New Zealand states that it has been based on her Bachelor of Business (Professional Accounting) degree from the Elite Education Institute. The skills assessment makes no reference to her Master of Public Health degree.

17. The Department was not satisfied that Ms Jin’s Master of Public Health degree was closely related to her nominated skilled occupation of Accountant (General). The Tribunal has also considered whether her Master of Public Health degree is closely related to her nominated skilled occupation of Accountant (General).  

18. During the hearing, the Tribunal discussed with Ms Jin how her Master of Public Health degree was closely related to her nominated skilled occupation of Accountant (General). She stated that she learnt about management and business in her Bachelor of Business (Professional Accounting) degree and thought that she should do a Master of Public Health degree for her “future development” as she wants to get an accounting job in a health related business.

19. Ms Jin stated that one of the units in her Master of Public Health degree was qualitative research which is relevant to professional accounting. It includes analysis and development. If she was working in a business related to health, she could utilise her knowledge to provide an analysis of business customers and help the business to improve. The core of qualitative research is to get data through asking questions.

20. The Tribunal asked Ms Jin why an employer would employ an Accountant rather than a Researcher to do research. She responded that an Accountant’s job involves reporting on valuation, cost management and forecasting. The data is gained with knowledge of qualitative research. When asked whether she was suggesting that she could not do a job as an Accountant if she did not have skills in qualitative research, she responded that she was  thinking about performance management and that is the reason why she thought of doing this course.

21. Ms Jin stated that she had a discussion with teaching staff at the University of Sydney and was advised about the definition of professional accounting and health professional accounting and that is why she said it was relevant. The Tribunal noted that qualitative research was one of the eleven subjects she did in her degree and it was required to assess the whole of her qualification. She stated that four of the subjects she did are relevant to accounting; bio statistics, making decisions in public health, capstone in public health and qualitative research.

22. Ms Jin stated that the skills she acquired in her Master of Public Health degree are “universally relevant” to accounting. They are collecting and analysing research and developing techniques to apply this knowledge. These are the requirements for professional accounting. For her to properly conduct tasks, it requires her to do research and research skills come from the qualitative research subject she did. The two subjects that she was interested in were bio statistics and qualitative research. She had to undertake the whole Master of Public Health degree to do those two subjects.  

23. Ms Jin stated that the purpose of studying those two subjects was to promote her skills in accounting. That is why she thought the subjects were necessary. She believes that by completing those two subjects she has increased her skills to handle clients and improved her skills as a whole. The knowledge she gained from bio statistics is closely related to accounting as it is a computer-based study like statistics. The software used is the same as that used in accounting and it is closely related.

24. The Tribunal raised as an issue with Ms Jin its concerns that her Master of Public Health degree is not closely related to her nominated skilled occupation of Accountant (General). She responded that she studied Biostatistics and Qualitative Health Research to improve her skills. She stated that these two subjects could not be studied separately and could only be studied as part of a degree. She had to undertake the whole course. She learnt those two subjects to promote her accounting skills.

25. Following the hearing, the Tribunal received a written statement from Ms Jin. In her written statement, she reiterated that the main reason she undertook the Master of Public Health degree was because it included the two subjects Introducing Qualitative Health Research and Biostatistics. She stated that the “universal knowledge and skills” obtained from doing qualitative research and conducting statistical data analysis would help her to give her clients more reliable advice. This knowledge and skills are not exclusive to public health and are directly transferable to accounting.

26. In her written statement, Ms Jin stated that another reason why she studied the Master of Public Health degree was because other business courses included subjects that were “highly similar” to the subjects in her Bachelor of Business degree and she considered those subjects to be unnecessary as there was a significant overlap between the degrees. She stated that many other business courses have subjects that teach qualitative research methods and statistical analysis. She did not indicate what these courses were. 

27. In her written statement, Ms Jin gave examples of how the knowledge and skills acquired from studying qualitative research and statistical analysis can be applied in the role of an Accountant. She stated that her qualitative research skills will enable her to ask clients questions that would assist in the advice she gives clients. One example she used was asking a client the question “Do you think offering annual health examination packages to your employees can improve their efficiency? She stated that, whilst “offering extra welfare” does not appear on the list of tasks in ANZSCO, it is “essential to the element” of providing financial and taxation advice on business structures, plans and operations. 

28. In her written statement, Ms Jin stated that the (Biostatistics) course she studied taught her to use computer-based software to analyse large amounts of data. She could use this skill to find out areas in a business where there was the highest likelihood of transferring investment into profit and advise clients on how to improve their financial position. She stated that if the client accepted her advice, she could liaise with financial institutions and brokers to establish funds management arrangements.  

29. The Tribunal has considered ANZSCO in its assessment of whether Ms Jin’s Master of Public Health degree is closely related to her nominated skilled occupation of Accountant (General). ANZSCO classifies occupations in a hierarchy of five levels. The lowest level comprises a list of occupations where each occupation is described in detail. The second level is a grouping of a number of occupations known as a Unit Group, the third level is the amalgamation of a number of Unit Groups to form a Minor Group, the fourth level is the amalgamation of a number of Minor Groups to form a Sub Major Group and the fifth level is the amalgamation of a number of Sub Major Groups to form a Major Group. In this case, the nominated occupation in the lowest level is Accountant (General) (ANZSCO 221111).

30. The description for the specific occupation of Accountant (General) (ANZSCO 221111) in ANZSCO is that this occupation provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems and advises on associated record-keeping requirements. Indicative skill level: Most occupants of 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.

31. The tasks of an Accountant as listed in ANZSCO Unit Group 2211 Accountants are:

    ·assisting in formulating budgetary and accounting policies

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

    ·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

    ·examining operating costs and organisations' income and expenditure

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

    ·providing financial and taxation advice on business structures, plans and operations

    ·preparing taxation returns for individuals and organisations

    ·liaising with financial institutions and brokers to establish funds management arrangements

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

    ·maintaining internal control systems

    ·may appraise cash flow and financial risk of capital investment projects

32. The ANZSCO Minor Group 221 Accountants, Auditors and Company Secretaries states that Accountants, Auditors and Company Secretaries plan and provide accounting, financial auditing and treasury valuation services and systems to individuals and organisations and plan and review legislative compliance activities. The tasks include the following:

    ·collecting, analysing and interpreting information on the financial status, cost structures and trading effectiveness of organisations

    ·devising, re-organising and establishing budgetary cost control and other accounting systems such as computer-based systems

    ·conducting audits and investigations and preparing financial statements and reports for management, shareholders, and statutory and other bodies

    ·controlling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies

    ·arranging and giving notice of meetings of directors and shareholders

    ·advising organisations' governing boards on matters concerning compliance with stock exchange listing rules, relevant legislation and corporation practice

33. The ANZSCO Sub Major Group 22 Business, Human Resource and Marketing Professionals states that Business, Human Resource and Marketing Professionals perform analytical, conceptual and practical tasks to provide services in financial accounting and transaction matters, human resource development, public relations and marketing and conduct studies of the economy, organisational structures, methods and systems. The tasks include the following: 

    ·collecting, analysing and interpreting information on the financial viability, cost structures and trading effectiveness of organisations

    ·conducting audits, preparing financial statements and controlling treasury systems for organisations

    ·developing and reviewing financial plans and strategies, executing buy and sell orders, and negotiating the purchase and sale of commodities

    ·developing, implementing and evaluating staff recruitment, training and development programs

    ·researching, developing and implementing marketing and public relations campaigns

    ·studying and developing methods and policies to improve and promote government and business operations and effectiveness

    ·developing and managing record and archival systems for retention and destruction of legal, administrative, evidential, historical and other records

34. The ANZSCO Major Group 2 Professionals states that Professionals perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare. The tasks include the following:

    ·communicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts

    ·analysing, planning, developing and implementing programs and solutions to resolve business and economic problems

    ·providing services in financial accounting, human resource development, publicity and marketing, and the efficient operation of organisations

    ·flying aircraft, and controlling and directing the operation of ships, boats and marine equipment

    ·conducting and analysing research to extend the body of knowledge in the field of the sciences and developing techniques to apply this knowledge

    ·designing products, buildings and other physical structures, and engineering systems

    ·researching and developing curricula, and teaching students in a range of educational settings

    ·designing, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed, and disseminated

    ·identifying, treating, and advising on, health, social, and personal issues

    ·advising clients on legal matters

1. The Tribunal has had regard to the written submissions dated 10 August 2020 made by Ms Jin’s migration agent. In his submissions, he referred to the guidance in the Procedure Advice Manual (PAM) which states that the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skills set underpinning the qualification/s are directly transferable to the nominated occupation in terms of both subject matter and the level of the qualification at which the skills were obtained.   

2. Ms Jin’s migration agent submitted that at least one of the subjects in the Master of Public Health degree undertaken by Ms Jin, namely QUAL5006 Introducing Qualitative Health Research, is closely related to the nominated occupation of Accountant as the skills obtained through the study of this subject and the level of study is directly transferable to the occupation. He submitted that Ms Jin also undertook a subject called PUBH5018 Introductory Biostatistics which provides students with statistical concepts, “which is universal knowledge” and practical skills in problem solving in the real world. He submitted that the skills that Ms Jin learned in studying these two subjects are transferable to the nominated occupation of Accountant.

3. In his submissions, Ms Jin’s migration agent referred to the descriptions in the ANZSCO Major Group 2 Professionals and the Sub Major Group 22 Business, Human Resources and Marketing Professionals as set out in paragraphs 33 and 32 above. He submitted that surveying, interviewing, data gathering and analysing skills, as well as the ability to independently design and conduct qualitative research, (which Ms Jin obtained during her study of that subject) are in line with the work description. 

4. Ms Jim’s migration agent submitted that an increasing number of scholars and practitioners give their support to the application of qualitative research methods as a new and emerging approach in accounting practice. He submitted that good research skills are essential for accounting professionals. He referred to a blog and two websites. He submitted that “a significant proportion of Accountants” could use the knowledge and skills learned from studying qualitative research methods.

5. In considering the evidence and submissions, the Tribunal has had regard to Ms Jin’s evidence that she undertook the Master of Public Health degree for her “future development” as she wants to get an accounting job in a health-related business. Clause 485.222 requires the Tribunal to focus on her nominated skilled occupation (Accountant (General)) rather than on her claimed or proposed occupation or career path or “future development”.

6. Ms Jin has provided the Tribunal with a copy of her Academic Transcript for the Master of Public Health degree she undertook. It indicates that she studied eleven subjects in her degree. Two of those subjects were QUAL5006 Introducing Qualitative Health Research and PUBH5018 Introductory Biostatistics. The focus of her oral and written evidence and the focus of the written submissions from her migration agent were on the knowledge and skills she acquired from studying these two subjects and their relationship to her nominated skilled occupation rather than on the whole qualification and whether it was closely related to her nominated skilled occupation.

7. The Tribunal accepts that the knowledge and skills that Ms Jin acquired from studying these two subjects in her Master of Public Health degree include research and analytical skills. These skills are referred to in the description of tasks in ANZSCO Major Group 2 Professionals and ANZSCO Sub Major Group 22 Business, Human Resource and Marketing Professionals. The Tribunal accepts that research and analytical skills are related to her nominated skilled occupation of (Accountant (General)). (ANZSCO 221111). However, it is not sufficient for the Tribunal to only consider two of the subjects she undertook in her Master of Public Health degree.

8. The Tribunal is required to compare the whole of Ms Jin’s qualification with the whole of her nominated skilled occupation when carrying out the evaluative exercise.[10] The wording of cl.485.222 does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it.[11] In considering the whole of the Master of Public Health degree undertaken by Ms Jin, the Tribunal has had regard to the Academic Transcript she provided to the Tribunal.

   [10] Talha v MIAC [2015] FCAFC 115 at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 at [26].

   [11] Constantino v MIBP [2013] FCA 1301 at [27].

9. Ms Jin’s Academic Transcript indicates that she undertook the following subjects in her Master of Public Health degree:

   ·Making Decisions in Public Health

   ·Communicable Disease Control

   ·Injury Epidemiology Prevention and Control

   ·Infection Prevention in Healthcare

   ·Introducing Qualitative Health Research

   ·Introduction to Public Health Ethics

   ·Epidemiology Methods and Uses

   ·Introductory Biostatistics

   ·Public Health: Achievements and Challenges

   ·Disease Prevention and Health Promotion

   ·Capstone in Public Health

10. The Tribunal has also considered the whole of ANZSCO Major Group 2 Professionals, Sub Major Group 22 Business, Human Resources and Marketing Professionals, Minor Group 221 Accountants, Auditors and Company Secretaries, Unit Group 2211 Accountants and Accountant (General) (ANZSCO 221111) (refer to above). Having considered all the evidence and the submissions and having compared the whole of Ms Jin’s qualifications with the whole of her nominated skilled occupation, the Tribunal is not satisfied that her Master of Public Health degree is closely related to her nominated skilled occupation of Accountant (General) (ANZSCO 221111).

11. Therefore, the Tribunal finds that Ms Jin does not meet the requirements of cl.485.222. It follows that she 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.

    Second named applicant - Mr Jinwei Cai

12. On 28 July 2020, the Tribunal wrote to Ms Jin and Mr Jinwei Cai (the secondary applicant) and invited them to attend a hearing on 17 August 2020. The letter was sent to them to the nominated address for correspondence in accordance with legislative requirements. Mr Jinwei Cai did not contact the Tribunal in response to the hearing invitation.

13. During the hearing, Ms Jin gave evidence that she included Mr Jinwei Cai, her former de facto husband, in her visa application as her dependant spouse. She stated that their relationship ended and they separated at the beginning of 2019. He has returned to China but she does not know when he did. She is not in contact with him. She did not inform the Department that they had separated.

14. Ms Jin’s migration agent submitted that he is not instructed to act on behalf of Mr Jinwei Cai. He stated that he attempted to contact him on the telephone number listed in the visa application but was unable to do so as the number is no longer in service. He stated that according to the Visa Entitlement Verification Online (VEVO) service Mr Jinwei Cai does not have a valid Australian visa.

15. The records of the Department indicate that Mr Jinwei Cai departed Australia on 16 September 2019. He does not have a valid visa to return to Australia. He has not withdrawn his application for review.

16. As Ms Jin is unable to satisfy the requirements for a Skilled (Provisional) (Class VC) subclass 485 visa and Mr Jinwei Cai is no longer a member of the family unit of Ms Jin, he is unable to satisfy the requirements of cl.485.311 as he is not a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa and made a combined application with that person. Alternatively, he is not a member of the family unit of a person who holds a Skilled (Provisional) (Class VC) visa on the basis of satisfying the primary criteria for the grant of a Subclass 485 visa. 

17. The Tribunal finds that Mr Jinwei Cai does not meet the requirements of cl.485.311.

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    L. Symons
    Member