LI (Migration) - [2018] AATA 4297

LI (Migration) [2018] AATA 4297 (7 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Junye LI
CASE NUMBER:  1717283
HOME AFFAIRS REFERENCE(S):           BCC2017/2408410
MEMBER:Katie Malyon
DATE:7 September 2018
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 criterion for a Subclass 485 visa:
·cl.485.221 of Schedule 2 to the Regulations; and,
·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 07 September 2018 at 6:08 pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – ‘Australian study requirement’ – completed 3 degrees in Australia – Accountant –subject exemptions – Masters of Professional Accounting – CPA skills assessment qualifications closely related to occupation – decision under review remitted for reconsideration
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth) s 9
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F Schedule 2 cls 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP[2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 August 2017 to refuse to grant the applicant, Mr Junye Li, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (‘the Act’).
Mr Li applied for the visa on 6 July 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 delegate refused to grant the visa on the basis Mr Li did not meet cl.485.222 of Schedule 2 to the Regulations because, despite completing 3 degrees in Australia, he did not meet the Australian study requirement. This arose because Mr Li’s most recent qualification, a Master of Professional Accounting completed at Top Education Institute (‘Top’), is registered for a period of 78 weeks only and the delegate was not satisfied that Mr Li’s other 2 qualifications are closely related to his nominated occupation of Accountant (General) ANZSCO 221111.
The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers consistent with s.360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Li is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LI (Migration)

Details

AGLC: LI (Migration) [2018] AATA 4297
Case: [2018] AATA 4297
Decision Date: 7 September 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Mr Li for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate) in the Graduate Work stream. The primary dispute concerned whether Mr Li met the requirements of the ‘Australian study requirement’ and the ‘closely related’ qualification criterion for his nominated occupation as an Accountant.

The legal issues before the Tribunal were whether Mr Li had satisfied the ‘Australian study requirement’ as defined by regulation 1.15F(1), which necessitates the completion of registered courses in Australia over a minimum of 16 calendar months and at least two academic years of study, with all instruction in English, undertaken while holding a study-authorised visa. Additionally, the Tribunal had to determine if each degree, diploma, or trade qualification used to satisfy this requirement was ‘closely related’ to Mr Li’s nominated skilled occupation, as stipulated by clause 485.222 of Schedule 2 to the Regulations.

The Tribunal found that Mr Li had provided sufficient documentation, including academic records for a Bachelor of Business and Commerce, a Master of Business, and a Master of Professional Accounting, all completed in Australia. It also considered a skills assessment from CPA Australia for the occupation of Accountant (General). Based on the evidence presented, the Tribunal concluded that Mr Li met both the ‘Australian study requirement’ and the ‘closely related’ qualification criterion.

Consequently, the Tribunal remitted Mr Li's visa application to the Minister for reconsideration, with a direction that Mr Li had satisfied the criteria under clauses 485.221 and 485.222 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal did not hold a hearing in this matter because it determined it was able to make a favourable decision on the papers consistent with s.360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE Mr Li 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: first, have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and second, 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 Mr Li meets those requirements.Does the applicant meet the Australian study requirement? 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: (a) that are registered courses; and,(b) that were completed in a total of at least 16 calendar months; and,(c) that were completed as a result of a total of at least 2 academic years study; and,(d) for which all instruction was conducted in English; and,(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms: see r.1.03, r.1.15F and r.2.26AC(6) of the Regulations and cl.485.111 of Schedule 2 to the Regulations. The term ‘completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: r.1.15F(2) of the Regulations. 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. The Department’s file in relation to Mr Li’s application for a Subclass 485 visa contains copies of the following documentation: a)Graduation Statement for a Bachelor of Business and Commerce (International Business and Global Management) awarded by the University of Western Sydney (‘UWS’) on 15 April 2014 including an Academic Transcript with details of all subjects completed and grades awarded;b)Academic Record for a Master of Business in Operations and Supply Chain Management awarded by the University of Technology Sydney (‘UTS’) on 8 March 2016; c)Academic Record for a Master of Professional Accounting awarded by Top on 29 June 2017; and, d)Skill Assessment issued by CPA Australia Ltd dated 13 July 2017 for the occupation of Accountant (General) ANZSCO 221111. Further copies of these documents were provided to the Tribunal. In addition, Mr Li provided the Tribunal with a copy of CPA Australia’s Accredited Tertiary Courses Listing 2010 as at 5 September 2014. Mr Li commenced his Bachelor of Business and Commerce (International Business and Global Management) at UWS in March 2010.

Decision

Reasons for decision

On the basis of the above findings, the Tribunal finds that Mr Li meets the requirements of cl.485.221 and cl.485.222 of Part 485 of Schedule 2 to the Regulations. In the circumstances, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:·cl.485.221 of Schedule 2 to the Regulations; and,·cl.485.222 of Schedule 2 to the Regulations.Katie MalyonMemberAnnexure – Extract from ANZSCO Version 1.2UNIT GROUP 2211 ACCOUNTANTS 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 projectsOccupations: 221111 Accountant (General) 221112 Management Accountant 221113 Taxation Accountant221111 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: 1Specialisations: Financial Analyst Insolvency Consultant Insolvency PractitionerUNIT GROUP 2211 ACCOUNTANTS cont’d 221112 MANAGEMENT ACCOUNTANT Alternative Title: Cost Accountant Provides services relating to performance-based financial reporting, asset valuation, budgetary systems, cost management, pricing, forecasting and the strategic governance of organisations. Provides advice on financial planning, risk management, carbon sequestration projects and carbon pricing and provides management with reports to assist in decision-making. May provide insight into cost performance and support the implementation of benchmarking and quality improvement initiatives. Registration or licensing may be required. Skill Level: 1 Specialisations: Carbon AccountantCommercial Accountant Product Accountant 221113 TAXATION ACCOUNTANT Alternative Titles: Taxation Agent Taxation ConsultantAnalyses, reports and provides advice on taxation issues to organisations or individuals, prepares taxation returns and reports, and handles disputes with taxation authorities. Registration or licensing may be required. Skill Level: 1oOOo

Ratio Decidendi

Legal Principle Established

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