Lu (Migration)

[2023] AATA 109

Lu (Migration) [2023] AATA 109 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Huiying Lu

REPRESENTATIVE:  Mr Ming Zhao

CASE NUMBER:  2004126

HOME AFFAIRS REFERENCE(S):          BCC2019/4996479

MEMBER:Namoi Dougall

DATE:10 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Statement made on 10 January 2023 at 4:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – land and property valuer – qualifications or skills to perform nominated occupation – qualifications not for occupations in ANZSCO unit group – comparison of units of study and tasks of occupation – five years of relevant experience substituting for formal qualification – part-time work mostly not in nominated occupation – three years of full-time work experience in nomination occupation at required skill level – qualification and experience after application made not relevant – request for referral for ministerial consideration not granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 187.234(c)(i), (ii)

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 6 October 2019. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Valuer.

5. The delegate refused to grant the visa because the applicant did not meet cl 187.234(c) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had the qualifications or skills to perform the nominated occupation. In particular the applicant did not have the relevant qualifications or work experience being at least 3 years of work experience in her nominated occupation prior to making the visa application. Based on the applicant’s work history set out in documents provided to the Department, the delegate found that she had worked part time in the occupations of Project Management and Real Estate Sales Assistant/Representative from April 2012 to October 2019. The delegate found that the applicant did not have at least 5 years relevant experience that may substitute for formal qualifications relevant to the nominated occupation of Valuer. The delegate did not accept that this work experience was in the nominated occupation. The delegate further found that the applicant did not fall within any of the exemption categories in cl.187.234(a) or (b) and thus did not meet cl.187.234 as a whole. As the applicant did not meet the Direct Entry criteria and had not made claims to meet the criteria in any other stream, the delegate refused to grant the applicant a subclass 187 visa.

6. The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the skills and qualification requirements for the Direct Entry Stream as set out in cl.187.234.

Skills and qualifications

1. For applicants in the Direct Entry stream, cl 187.234 requires that at the time of application:

   ·     the applicant is in a specified class of persons (exempt persons), or

   ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

   ·      if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

2. For visa applications made on or after 18 March 2018, applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation. As the application under review was made on 6 October 2019 the applicant must meet this latter requirement.

3. For this criterion, the relevant classes of exempt persons have been specified in IMMI 18/045, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

4. IMMI 18/045 provides the following exemption(s) for the purposes of cl.187.234(a):

   7 Exemptions to skills and qualification requirements for applicants for a Subclass 187 visa

   For the purposes of paragraph 187.234(a) of Schedule 2 to the Regulations, persons who:

   (a) hold a Subclass 444 visa or a Subclass 461 visa; and

   (b) have been working in a nominated occupation for the nominating employer for at least two years (excluding any periods of unpaid leave), in the three years immediately prior to the date of application for a Subclass 187 visa;

   are specified.

5. There is no evidence that the applicant has ever held a subclass 441 or 461 visa, and thus the Tribunal finds that he is not exempt under the terms of cl.187.234(a).

6. The occupation of Valuer (ANZSCO 224512) is not listed in IMMI 12/096, therefore, the applicant does not satisfy the requirements of cl.187.234(b).

7. The criteria of cl 187.234(c) requires the applicant to have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. The tasks listed for Unit Group 2245 Land Economists and Valuers are as follows;

   ·     providing advice on land and property financing and valuation matters

   ·     researching and advising on the administration and use of land and property

   ·     developing and implementing sales and leasing proposals for commercial land and property

   ·     providing asset management services for the administration and use of land and property

   ·     analysing land and property investments

   ·     managing land and property portfolios and commercial property developments

   ·     calculating values by considering market demand, condition of items, future trends and other factors

   ·     examining property, selecting methods of valuation, and submitting written assessments

   ·     giving evidence in legal proceedings, mediating on valuation matters and providing rental determinations for arbitration purposes

8. ANZSCO lists the occupation of Valuer (224512) as a Skill Level 1 and states that most occupations in the unit group have a level of skill commensurate with a bachelor’s degree or higher qualification. Alternatively, ANZSCO states that at least five years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

9. Provided to the Department was a resume for the applicant (the first resume) which stated that the applicant had the following qualifications:

Period of Study	University & Country	Qualification
September 2006 – July 2010	Jaingsu University of Science and Technology, China	Bachelor of Economics
February 2011 – July 2014	Macquarie University, Australia	Master of Professional Accounting (CPA extension)
November 2015 – February 2016	Australian College of Professionals, Australia	Certificate IV in Property Services (Real Estate)
July 2018 – September 2019	Australian Vocational Training Institute, Australia	Diploma in Project Management
September 2019 – to date of visa application	Training Masters, Australia	Graduate Diploma of Management

1. None of the applicant’s qualifications are for the occupations listed in the unit group 2245 Land Economists and Valuers or under the occupations of Land Economist or Valuer, including for: Land Economists; Valuer; Property Valuer; or Real Estate Valuer.

2. On 1 December 2022, the applicant provided to the Tribunal a copy of the Academic Testamur for her Certificate IV in in Property Services (Real Estate) which listed all of the units of competency completed by the applicant. Further, to the qualification not being a bachelor’s degree or higher qualification, the qualification is not relevant to the nominated occupation of Valuer.

3. On 2 December 2022, the Tribunal was provided with the Chinese and English translation of the applicants score sheet (the Bachelor score sheet) which lists the subjects studied by the applicant for her Bachelor of Economics. The Tribunal has considered this qualification further below.

4. On the day of the hearing the Tribunal was provided with a copy of an Undergraduate Certificate in Property Valuation awarded to the applicant on 1 September 2022 by TAFE NSW. This qualification is not a bachelor’s degree or higher qualification, and was awarded to the applicant after the date of the visa application.

5. On the day of the hearing, the Tribunal was provided with a copy of the applicant’s Master of Accounting (CPA Extension) awarded on 29 September 2014 by Macquarie University and an academic transcript (the Macquarie academic transcript) for that degree.

6. At the hearing the applicant stated that the Bachelor’s degree from China and Master Degree of Accounting are relevant to her application as a skilled visa. The Tribunal referred to the nominated occupation being that of Valuer and that none of the subjects studied by the applicant were relevant to being a Valuer. The applicant stated that she has studied macro economics and finance which are relevant to valuation as she has to be able to do cost estimates. The Tribunal accepts that ‘calculating values by considering market demand, condition of items, future trends and other factors’ appears, at face value, to be something of a similar nature as to preparing cost estimates. However, this is only one task listed in ANZSCO.

7. Provided after the hearing was a submission which submitted that the applicant studied subjects relevant to the nominated occupation of Valuer as part of her Bachelor of Economics at Jiangsu University and her Master of Accounting (CPA Extension). Further the submission provided a course description for a Bachelor of Property Economics at the University of Technology (the UTS degree) which the submission stated included the following relevant subjects:

   1. Property valuation; 2. Microeconomics for Property; 3. Property Market Research and Analysis; 4. Property Accounting and Financial Management; 5. Financial Analysis; 6. Urban Economics; 7. Property Investment and Valuation; 8. Property Finance; 9. Property Investment and Portfolio Management; 10. Economics for Policy Analysis; and 11. Property Taxation.

8. As stated above he translated Bachelor score card lists the subjects studied by the applicant to complete her Bachelor of Economics from Jiangsu University. The subjects submitted by the applicant to be relevant to the nominated occupation of Valuer in the submission are as follows:

   1. Macroeconomics; 2. Microeconomics; 3. Money and Banking; 4. Public Finance; 5. Theory of Finance; 6. Game Theory; 7. Economics Law; 8. International Finance; 9. Theory of International Trade; 10. BA Business Economics; 11. Consumer Behaviour; 12. Basic Accounting; 13. Theory of E-Commerce; 14. International Commercial Law; 15. Market Research; 16. Practice of International Trade; 17. Pricing; 18. Security Analysis and Investment; 2 19. Theory of Financial Management; 20. Capital Rating; and 21. Commodity Science.

9. The Macquarie academic transcript lists all of the subjects studied by the applicant to complete her Masters of Accounting (CPA Extension). The subjects submitted by the applicant to be relevant to the nominated occupation of Valuer in the submission are as follows:

   1. Economic Analysis; 2. Quantitative Methods; 3. Principles of Accounting; 4. Financial Accounting; 5. Taxation Law; and 6. Financial Management and Policy

10. It was further submitted that the subjects from the UTS degree are highly correlated to the subjects from the applicant’s bachelor and master’s degrees and that the subjects the submission listed as being relevant from the bachelor’s and master’s degrees relate to the performance of a valuer’s tasks as listed in ANZSCO.

11. The subjects that form part of the UTS degree includes property valuation which is not a subject studied as part of the applicant’s bachelor of masters’ degrees. All of the subjects for the UTS degree, with the exception of three, include the word property to qualify and specialise the subjects to be specifically relevant to a qualification in valuation or property economics. None of the subjects listed in the Bachelor’s degree or the master’s degree are qualified or specialised with the word ‘property’ indicating that they are more general in nature and more related to a broad range of subjects relevant to economics and accounting more generally rather than being focused on or specialised to the qualification of Valuer. Further, the subjects studied by the applicant for the master’s degree included subjects specifically studied for the applicant to go on to obtain her CPA.

12. On the above the Tribunal is not satisfied that the Economics qualification from Jiangsu University including the subjects listed in the Bachelor score sheet as being completed by the applicant are such that the qualification is at the level of education required for the competent performance of the tasks required by ANZSCO for the nominated occupation of Valuer nor are they directly relevant to the tasks listed in ANZSCO for the nominated occupation with the exception of one task which is referred to above. Therefore, the Tribunal is not satisfied that the applicant’s qualification of Bachelor of Economics is the qualification listed in ANZSCO as being necessary to perform the tasks of the occupation

13. On the above the Tribunal is not satisfied that the Accounting qualification from Macquarie University including the subjects listed in the academic transcript as being completed by the applicant are such that the qualification is at the level of education required for the competent performance of the tasks required by ANZSCO for the nominated occupation nor are they directly relevant to the tasks listed in ANZSCO for the occupation of Valuer. Therefore, the Tribunal is not satisfied that the applicant’s qualification of Master of Accounting (CPA Accounting) is the qualification listed in ANZSCO as being necessary to perform the tasks of the occupation.

14. As the applicant did not have the relevant qualifications at the time of the visa application, the applicant would need to have worked in the nominated occupation of Valuer for at least 5 years to substitute for formal qualifications and to have obtain the relevant skill level.

15. Also provided on the day of the hearing was an updated resume for the applicant (the second resume).

16. The first and second resumes listed the applicant’s work experience as set out below. The Tribunal was also provided on 2 December 2022 with a signed employment agreement between the applicant and Brilliant Properties Pty Ltd t/a Bryson Real Estate (BRE) dated 6 July 2018 the details of which are included below.

Period of Time	Position	Employer	Whether any of the duties listed include work as a Valuer
April 2012 – July 2014	Part time, Real Estate Sales Assistant	Yu, Fei	No
July 2014 – February 2015	Part time Real Estate Sales Assistant	Value Investment Australia Pty Ltd	No
February 2015 – July 2018	Part time, Real Estate Sales Representative & Assistant Project Manager	BRE	No
July 2018 –January 2022 (3 years 7 months)	Part time, Project Manager	BRE	Yes. See below
February 2022 – date of decision (10 Months)	Part time, Project Valuer	JSJ Holdings	Yes. See below

1. On the information on the Departmental and Tribunal files and on the above, the Tribunal is not satisfied that the applicant worked as a Valuer from April 2012 to July 2018. Even if the Tribunal accepts that from July 2018 to the date of the Subclass 187 visa application on 6 October 2019, the applicant worked as a Valuer for BRE, that period of time is only 15 months. Therefore, the Tribunal is not satisfied that at the time of the visa application the applicant had 5 years of relevant experience as a Valuer to substitute for formal qualifications in the nominated occupation of Valuer.

2. Further, on the above, the Tribunal is not satisfied that at the time of the visa application the applicant has been employed in the occupation of Valuer for at least 3 years on a full time basis and at the level of skill required for the occupation of Valuer.

3. On the above the requirements of cl.187.234(c)(1) and (ii) are not met and therefore, all the requirements of cl.187.234(c) are not met.

4. As the requirements of cl.197.234(a), (b) and (c) are not met, accordingly the requirements of cl.187.234 are not met.

5. The Tribunal was provided with a reference letter from the director of JSJ Holdings dated 30 November 2022 which states that the applicant is employed by JSJ Holdings part time as a project valuer from February 2022. Similarly, the submission provided to the Tribunal after the hearing, stated that the applicant from October 2019 to January 2022 in her role as part time Project manager at BRE and in her current role with JSJ Holdings performed duties that confirm to those listed in ANZSCO.

6. However, as the claimed start of the applicant’s valuation duties at Brilliant is from October 2019 and the applicant’s employment with JSJ Holdings both commenced after the Subclass 187 visa application was lodged and are not relevant to the consideration of cl.187.234 which is criteria that is to be met at time of application which was 6 October 2019.

7. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

   Ministerial Intervention

8. The submission provided to the Tribunal after the hearing requested that the Tribunal consider referring the matter to the Minister for Ministerial Intervention. The basis for the request were that: the applicant has been in Australia for over 12 years and has completed a master’s degree and several vocational courses; she has had a stable job since graduating, paid taxes and her experience will contribute to the Australian economy; and as there are severe skilled labour shortages it is in the public interest to retain the applicant in Australia.

1. The Tribunal will not be referring this matter to the Minister for Ministerial Intervention.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

Namoi Dougall
Member