LI (Migration)

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 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.
Mr Li lodged his Subclass 485 visa application on 6 July 2017: that is, within 6 months of completing his Master of Professional Accounting at Top on 29 June 2017.
Based on evidence set out in the website of the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), the Tribunal finds that Mr Li’s Master of Professional Accounting from Top (CRICOS Provider 02481D) is registered for 78 weeks and that all instruction is in English.[1] As it is a requirement for a Subclass 485 visa that the applicant must have completed at least 2 academic years study - that is, at least 92 weeks of study consistent with IMMI 09/040 - the Tribunal finds that, relying on his Master of Professional Accounting degree alone, Mr Li does not satisfy the ‘Australian study requirement’ in the 6 months immediately preceding the day his Subclass 485 visa application was lodged on 6 July 2017 as required by cl.485.221 of Schedule 2 to the Regulations.
[1] >
However, the ‘Australian study requirement’ does not require visa applicants to have completed a single course of study of 2 academic years’ duration. Accordingly, it is necessary to consider whether Mr Li can rely on his Bachelor of Business and Commerce (International Business and Global Management) from UWS (CRICOS Provider 02851G) and/or his Master of Business in Operations and Supply Chain Management from UTS (CRICOS Provider 00099S) to meet the ‘Australian study requirement’.
Having regard to details on the CRICOS website, the Tribunal finds that Mr Li’s Bachelor of Business and Commerce (International Business and Global Management) from UWS is registered for 260 weeks and that all instruction is in English.[2] Accordingly, the Tribunal finds that the registered courses undertaken by Mr Li, both at UWS and Top, have a total registered duration in excess of 92 weeks.
[2] >
In passing, the Tribunal notes that it has not been necessary in the circumstances of this case to consider the duration of Mr Li’s Master of Business in Operations and Supply Chain Management from UTS and whether all instruction for that course was in English.
Departmental records confirm Mr Li initially arrived in Australia on 11 September 2006 as the holder of a Student 571 visa to undertake intensive English studies as well as attend senior high school for 3 years. Thereafter, apart from a period of 9 months from 28 March 2014 to 24 December 2014 when he held a Partner Subclass 820 visa with no restrictions on his ability to study, Mr Li has held either Subclass 573 Student visas or, in the alternative, Bridging A or Bridging B visas with no restrictions on study. Accordingly, Mr Li undertook all his studies in Australia as the holder of a visa authorising him to study.
Based on the evidence outlined above, the Tribunal finds that Mr Li satisfies the ‘Australian study requirement’ in the 6 months immediately preceding the date of his Subclass 485 visa application. Therefore, he meets cl.485.221 of Schedule 2 to the Regulations.
Are the applicant’s qualifications ‘closely related’ to the nominated occupation?
Clause 485.222 of Schedule 2 to the Regulations requires the qualification/s used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation.
The term ‘closely related’ is not defined in the Regulations. However, the term has been considered in a number of cases including the Full Federal Court of Australia’s decisions of MIBP v Dhillon[3] and Talha v MIBP[4] as well as the Federal Court of Australia’s decision in Constantino v MIBP.[5] The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:
·while the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between 2 things. And, although the words ‘closely related’ do not require an exact correspondence,[6] the relationship must be more than merely complementary.[7]
·in making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation.[8]
·it is appropriate to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own (subjective) description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[9]
[3] (2014) 227 FCR 525.
[4] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.
[5] [2013] FCA 1301, Jacobson J.
[6] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33] quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].
[7] Uddin v MIAC [2010] FCA 1281, North J at [10] - [12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; and, MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].
[8] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].
[9] Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM at [48] – [67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to the nominated occupation.
It is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation[10] and, in carrying out the evaluative exercise, it is critical that the Australian studies be compared with the whole of the nominated occupation.[11] In the circumstances of this case, the Tribunal is of the opinion that it is also appropriate to consider the requirements of the specified assessing authority in IMMI 16/059 to consider whether each of Mr Li’s degrees used to satisfy the Australian study requirement are closely related to his nominated occupation of Accountant (General) ANZSCO 221111.
[10] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53]
[11] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].
The delegate found that Mr Li’s Master of Professional Accounting degree is closely related to his nominated occupation. The Tribunal concurs with this finding. However, the delegate was not satisfied that Mr Li’s Bachelor of Business and Commerce and his Master of Master of Business in Operations and Supply Chain Management are closely related to his nominated occupation of Accountant (General) ANZSCO 221111. As a result, his Subclass 485 visa application was refused.
Relevant to this case, the assessing authority specified in IMMI 16/059 for the occupation of Accountant (General) ANZSCO 221111 is one of 3 professional associations: Certified Practising Accountants Australia (‘CPA Australia’); Chartered Accountants Australia and New Zealand; and, the Institute of Public Accountants. Mr Li has provided a favourable skill assessment from CPA Australia dated 13 July 2017.
As noted above, the Tribunal has found that Mr Li meets the Australian study requirement having regard to the completion of both his Bachelor of Business and Commerce degree at UWS as well as his Master of Professional Accounting at Top. In its consideration of whether these 2 degrees are ‘closely related’ to Mr Li’s nominated occupation of Accountant (General) ANZSCO 221111, the Tribunal has had regard not only the ANZSCO description for the occupation but also to the following documentation provided by Mr Li:
a)favourable skill assessment from CPA Australia Ltd dated 13 July 2017; and,
b)academic transcripts confirming subjects completed for Mr Li’s degrees at, respectively, UWS in April 2014 and Top in July 2017.
Furthermore, the Tribunal has considered information on the website of CPA Australia in relation to: first, the mandatory and optional competency areas needed to secure a favourable skill assessment for the occupation of Accountant (General) ANZSCO 22111; and second, the list of accredited tertiary courses in Australia.[12]
[12] >
ANZSCO states that an Accountant (General) provides services relating to compliance-based financial reporting, auditing, insolvency and accounting information systems as well as advises on associated record-keeping requirements. Registration or licensing may be required for certain services such as auditing. Mr Li’s nominated occupation of Accountant (General) ANZSCO 221111 is one of 3 occupations in Unit Group 2211: the other 2 occupations are Management Accountant and Taxation Accountant. Full details in relation to Unit Group 2211 are extracted in Annexure A this decision.
The ANZSCO description for Unit Group 2211 states that 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. For the purposes of the Tribunal’s consideration of whether Mr Li’s qualifications used to satisfy the ‘Australian study requirement’ are closely related to his nominated occupation of Accountant (General) it has not been necessary to consider the higher hierarchies of Minor Group 221 Accountants, Auditors and Company Secretaries or the Sub-Major Group 22 Business, Human Resource and Marketing Professionals.

Information available on CPA Australia’s website[13] confirms there are 7 mandatory competencies for the occupation of Accountant (General) 221111 and 2 optional competencies as set out below:

[13] cellpadding="0" cellspacing="0"> Mandatory Optional

· Accounting Systems and Processes

· Financial Accounting and Reporting

· Management Accounting

· Finance and Financial Management

· Business Law

· Economics

· Quantitative Methods

· Audit and Assurance

· Taxation Law

The favourable skill assessment from CPA Australia dated 13 July 2017 provided by Mr Li to both the Department and the Tribunal states:
Your Bachelor of Business and Commerce (International Business and Global Management) from University of Western Sydney is assessed as comparable to an Australian Bachelor degree. Your Master of Professional Accounting from TOP Education Institute is assessed as comparable to an Australian Master degree. I can confirm that the content of your qualifications has been considered according to the skills assessment criteria.
The result of this assessment is that you are academically suitable for the temporary visa subclass 485 under ANZSCO 221111 – Accountant (General).
Relevantly, the skill assessment from CPA confirms Mr Li has met all of the 7 mandatory competency areas and both of the optional competencies. It states as follows:

Competency Areas

1 Accounting Systems and Processes Complete

2 Financial Accounting and Reporting Complete

3 Business Law Complete

4 Economics Complete

5 Finance and Financial Management Complete

6 Management Accounting Complete

7 Quantitative Methods Complete

8 Taxation Law Complete

9 Audit and Assurance Complete

Mandatory Completed 7/7

Optional Completed 2/2

As noted above, the delegate accepted that Mr Li’s Master of Professional Accounting is closely related to his nominated occupation of Accountant (General) and the Tribunal concurs with this assessment.
Relevant to the Tribunal’s assessment of whether Mr Li’s Bachelor of Business and Commerce degree is closely related to his nominated occupation of Accountant (General), Mr Li’s Academic Transcript issued by Top confirms that he was awarded an exemption from the need to undertake 3 postgraduate subjects based on his prior tertiary studies. He was awarded an exemption from the need to undertake:
·Business Law;
·Principles of Economics; and,
·Quantitative Methods for Accounting and Finance.
Having reviewed the Academic Transcripts for each of Mr Li’s degrees undertaken prior to commencement of his Master of Professional Accounting at Top, it is clear that Top recognised - and exempted Mr Li from the need to repeat these 3 subjects - since they were undertaken as part of his Bachelor of Business and Commerce degree from UWS. Mr Li’s Academic Transcript from UWS indicates that he successfully completed the following comparable subjects as part of his degree at UWS:
·Introduction to Business Law (Autumn session 2012);
·Principles of Economics (Spring Session 2010); and,
·Statistics for Business (Spring Session 2010).
In the opinion of the Tribunal, it is significant that each of the 3 subjects which Mr Li was exempt from having to undertake as part of his Master of Professional Accounting at Top - due to his completion of comparable subjects at UWS - are all mandatory competency areas required by CPA Australia for a favourable skill assessment in the occupation of Accountant (General) ANZSCO 221111. Moreover, Mr Li completed the subject Accounting Information for Managers in Autumn Session 2011 at UWS. CPA Australia’s website provided by Mr Li to the Tribunal confirms that this subject is accredited for the mandatory competence area of Accounting Systems and Processes.[14] The competency areas meet by Mr Li’s completion of subjects at UWS as part of his Bachelor of Business and Commerce degree have been italicised in the Tables above at paras [24] and [26].
Consideration of evidence
[14] Ibid

The Tribunal has had regard to ANZSCO as a whole and the description there of the occupation of Accountant (General). Based on its review of Mr Li’s Academic Transcript for his Bachelor of Business and Commerce at UWS, it is clear he majored in international business and global management. However, 4 of the 7 competency areas considered mandatory for a favourable assessment from CPA Australia for the occupation of General (Accountant) ANZSCO 221111 are studies in Business Law, Economics, Quantitative Methods as well as Accounting Systems and Processes and it is evidence that Mr Li has completed subjects - as part of his Bachelor of Business and Commerce at UWS - which CPA recognises as accredited courses for these 4 competency areas. Accordingly, the Tribunal finds that Mr Li’s Bachelor of Business and Commerce degree from UWS is not just related but, rather, closely related to his nominated skilled occupation of Accountant (General) ANZSCO 221111.
In passing, the Tribunal notes the remaining 3 competencies considered mandatory for a favourable CPA Australia assessment for the occupation of Accountant (General) ANZSCO 221111 and the 2 competencies considered optional for that occupation were all courses undertaken by Mr Li is part of his Master of Professional Accounting course at Top as confirmed by his Academic Transcript from Top. Accordingly, the Tribunal finds Mr Li’s Master of Professional Accounting degree is also closely related to his nominated occupation of Accountant (General) ANZSCO 221111.
As noted above, Mr Li’s Bachelor of Business and Commerce qualification from UWS as well as his Master of Professional Accounting qualification from Top have been used to satisfy the Australian study requirement. In light of the Tribunal’s findings that each of his Bachelor of Business and Commerce qualification from UWS as well as his Master of Professional Accounting are closely related to his nominated skilled occupation of Accountant (General) ANZSCO 221111, the Tribunal finds that Mr Li meets cl.485.222 of Schedule 2 to the Regulations.
Conclusion
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 Malyon

Member
Annexure – Extract from ANZSCO Version 1.2
UNIT 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 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

Specialisations:
Financial Analyst
Insolvency Consultant
Insolvency Practitioner
UNIT 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 Accountant
Commercial Accountant
Product Accountant

221113 TAXATION ACCOUNTANT
Alternative Titles:
Taxation Agent
Taxation Consultant
Analyses, 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: 1
oOOo

[2018] AATA 4297

7 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Competency Areas
1	Accounting Systems and Processes	Complete
2	Financial Accounting and Reporting	Complete
3	Business Law	Complete
4	Economics	Complete
5	Finance and Financial Management	Complete
6	Management Accounting	Complete
7	Quantitative Methods	Complete
8	Taxation Law	Complete
9	Audit and Assurance	Complete
Mandatory Completed	7/7
Optional Completed	2/2