Mushtaq (Migration)

[2022] AATA 3290

Mushtaq (Migration) [2022] AATA 3290 (17 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farhan Mushtaq

REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)

CASE NUMBER:  1913010

HOME AFFAIRS REFERENCE(S):          BCC2019/1098257

MEMBER:Jade Murphy

DATE:17 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 17 August 2022 at 4:46pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Accountant – Australian study requirement – courses completed within 6 months before visa application – courses closely related to skilled occupation – Leadership and Management studies – course not transferable to the applicant’s nominated occupation – broader employment and future career aspirations – decision under review affirmed

LEGISLATION

Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15

CASES

Pasula v MIAC [2010] FMCA 219
Talha v MIBP [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 Home Affairs on 9 May 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 March 2019. 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 (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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications used to satisfy the Australian study requirement, namely an Advanced Diploma of Leadership and Management, is closely related to the nominated occupation of Accountant (ANZSCO 221111).

4. The applicant appeared before the Tribunal on 16 August 2022 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 cl 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 before 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.

   Does the applicant meet the Australian study requirement?

8. Under reg 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.

9. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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.

10. As evidenced by the applicant’s certificates of completion submitted to the Tribunal on review, the Tribunal is satisfied that the applicant has completed the following qualifications:

    ·Advanced Diploma of Leadership and Management, at Malvern International College, completed 13 February 2019; and

    ·Master of Business Administration and a Master of Professional Accounting, at Holmes Institute, completed 13 March 2017. 

11. Clause 485.221 requires the qualifications to be relied on to satisfy the Australian study requirement be completed within 6 months immediately before the day the application is made. Together, both courses were completed within 6 months immediately before the day the application was made as the applicant’s Advanced Diploma of Program Management was completed on 13 February 2019 and the applicant applied for this visa on 5 March 2019.

12. Both qualifications further satisfy the Australian study requirement as they are registered courses completed at CRICOS registered institutions.

13. The qualifications were completed in a total of at least 16 calendar months and as the result of at least 2 academic years of study.

14. The completion certificates issued from the education providers further confirm that each qualification was conducted in English.

15. In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.

16. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl 485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

17. In addition, cl 485.222 requires each qualification used to satisfy that requirement is 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 (regs 1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 18/051.

18. In this case, the applicant nominated the occupation of Accountant (ANZSCO 221111) which is a skilled occupation specified in IMMI 18/051.

19. As set out in the delegate’s Decision Record, the delegate was not satisfied that the qualifications used to satisfy the Australian study requirement, namely an Advanced Diploma of Leadership and Management, is closely related to the nominated occupation of Accountant (ANZSCO 221111). The delegate looked at the academic transcript and the units undertaken to obtain the Advanced Diploma of Leadership and Management and found they were not transferable to the applicant’s nominated occupation of Accountant. The delegate looked at the job description for the nominated occupation and reproduced the ANZSCO description in their decision. The delegate noted that none of the tasks refer to specific Leadership and Management related activities nor do the subjects outlined in the academic transcript provided for this course. The delegate noted the applicant’s other qualification, namely a Master of Business Administration and Master of Professional Accounting but noted it was completed outside of the prescribed timeframe.

20. Prior to the hearing, the Tribunal received a written submission from the applicant dated 8 August 2022 and a written submission from the applicant’s agent dated 15 August 2022.

21. In his written statement, the applicant reiterated his oral submission that the Advanced Diploma of Leadership and Management would enable him to ‘avail higher positions in my field of accounting’. The applicant set out the units studied in both of his qualifications and went on to explain that his Advanced Diploma of Leadership and Management gave him skills to understand the core skills of accounting in relation to management practices. Specifically, he identified maintaining records of documents, developing strategic plans and compliance and audit. The applicant submitted that the roles of an Accountant has expanded to include management skills, and therefore he undertook his Advanced Diploma of Leadership and Management.

22. The applicant’s agent’s written submissions identified 8 of the 12 units undertaken by the applicant to complete his Advanced Diploma of Leadership and Management and submitted that they are required for an individual to perform the tasks of an Accountant. The applicant’s agent submitted that he sought to gain ‘broader knowledge’ in the field and stated that if an Accountant is working in a managerial position they may require leadership and managerial skills to fulfill a role at that level and to fulfill the objectives of an employer. Further, the applicant’s agent stated that the units studied in the applicant’s Advanced Diploma of Leadership and Management ‘go hand-in-hand’ with his other qualification of Master of Business Administration and Master of Professional Accounting.

23. At the hearing, the Tribunal asked the applicant whether he would like to respond to the delegate’s concerns as set out in the primary Decision Record. The applicant told the Tribunal that the units studied for his Advanced Diploma of Leadership and Management were closely related to his Master of Business Administration and Master of Professional Accounting. The Tribunal told the applicant that it was seeking submissions regarding the link between his Advanced Diploma of Leadership and Management and his nominated occupation of Accountant. The applicant told the Tribunal that the Advanced Diploma of Leadership and Management would help him achieve more goals in his career. He submitted that subjects such as developing marketing and business plans were not taught in his accounting qualifications and with these skills he can now achieve more things and become a leader in the field. The applicant told the Tribunal the Accounting studies he had completed only helped him to achieve those particular tasks but now he will have more opportunities as a Team Leader and Management Consultant.

24. The Tribunal told the applicant that it noted his oral and written submissions but it remained concerned that the applicant had identified ways in which his Advanced Diploma of Leadership and Management might assist or enhance his future career prospects as a Leader or Manager, however, he had not yet persuaded the Tribunal that the skills obtained through this qualification were more than ‘merely complementary’ to performing the daily tasks of an Accountant. The Tribunal asked the applicant if he wanted to respond to the Tribunal’s concern in this regard. The applicant reiterated his previous oral submissions as summarised above. The Tribunal found the applicant’s evidence ambiguous and uninformative, and as a result, unpersuasive. The content of the applicant’s oral and written submissions centred on his Advanced Diploma of Leadership and Management being beneficial to his future career in that it would broaden his skillset and therefore opportunities and assist in a managerial or leadership role. The Tribunal expressed its concern regarding this and the applicant was unable to provide any reason or statement to alleviate the Tribunal’s concern in any way. The Tribunal is unpersuaded that the applicant’s most recent qualification goes any further than to merely complement or enhance the applicant’s future career aspirations, rather than to underpin the tasks of the nominated occupation.

25. The Tribunal acknowledges the applicant’s submissions that he obtained broader skills as part of his Advanced Diploma of Leadership and Management and accepts that they are more practical skills than the core practice of Accounting. The Tribunal further accepts that that these skills may assist the applicant if he were to pursue a management or leadership position within a company in the future. However, it considers that the assessment of whether or not it is ‘closely related’ must be against the nominated occupation and not against an occupation that the applicant wants to engage in in the future. As Smith FM stated in Pasula v MIAC [2010] FMCA 219 at [23]:

    …the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the

    regulations must relate to the nominated occupation itself, and not to some different

    occupational classification which might later be pursued by the visa applicant, and

    which would then involve use of the two qualifications. If PAM3 suggested otherwise,

    then it would be giving advice flawed by error of law.

26. While that case considered a different provision, the Tribunal finds that the same reasoning applies in relation to cl 485.222.

27. In the Tribunal’s view, if the applicant decides to run his own business, or pursue a management or leadership position, this goes further than his nominated occupation of Accountant. The Tribunal remains unpersuaded that it should consider the qualification in relation to the applicant’s future or intended occupations, rather than the nominated occupation.

28. The Tribunal considers this a crucial point that carries no favourable weight for the applicant.

29. The Tribunal asked the applicant’s agent whether he would like to respond to the Tribunal’s concerns as expressed above. The applicant’s agent told the Tribunal that he relied on his written submissions but also that the role of an Accountant is changing and that it is more focused on leadership qualities now. The applicant’s agent submitted that an Accountant requires leadership skills but that they are not obtained by studying the core traditional accounting qualifications. The Tribunal is unpersuaded that if a core element of an Accountant is leadership, that it would not form part of the coursework required to become a qualified Accountant. The applicant’s agent told the Tribunal that the applicant chose the Advanced Diploma of Leadership and Management as he wanted to gain further skills but chose it over an accounting qualification such as a CPA because the Advanced Diploma offered more practical skills as opposed to core accounting knowledge. In this regard, the applicant’s reasoning seems to acknowledge or give weight to the idea that the leadership and management skills obtained in his qualification go further than the core competencies or tasks of an Accountant. The applicant’s agent told the Tribunal that the applicant attempted to obtain employment as an Accountant after completing his Master of Business Administration and Master of Professional Accounting but was unsuccessful. The applicant’s agent submitted that it is reasonable to think that the applicant will be more successful having completed his Advanced Diploma of Leadership and Management. The Tribunal is unpersuaded that this necessarily follows particularly as the applicant completed this additional qualification on 13 February 2019 and has to date, been unable to find a job in the nominated occupation. The applicant’s agent told the Tribunal this was due to personal circumstances and the applicant raised the effects of the global pandemic that made it difficult to obtain a job. However, the Tribunal considers that the applicant completed this additional qualification approximately a full year before the effects of the global pandemic impacted the job market, and notwithstanding any challenging personal circumstances, there is no evidence before the Tribunal to support the agent’s claims that the applicant’s skills obtained through his Advanced Diploma of Leadership and Management make him more employable in the nominated position. When the Tribunal put this to the applicant’s agent at the hearing, the applicant’s agent changed tack and told the Tribunal it was due to the applicant’s visa status. The Tribunal confirms it does not and at hearing did not seek to rely on the applicant’s current employment status in any way, however, the Tribunal raised its concerns regarding the agent’s reasoning as and when the submissions regarding the applicant’s current and future employment were raised by his agent.

30. After considering the evidence before it, the Tribunal remains unpersuaded that the applicant’s qualification used to satisfy the Australian study requirement, namely an Advanced Diploma of Leadership and Management is closely related to his nominated occupation of Accountant. The Tribunal places significant weight on the applicant’s submission that this qualification will be beneficial to his broader employment and future career aspirations as a Leader or Manager. However, this is not enough to persuade the Tribunal that the qualification is closely related to the nominated occupation. The Tribunal raised its concerns with the applicant at the hearing and received no response that satisfactorily addressed its concerns.

31. Based on the above, having considered the evidence and submissions presented, as well as having regard to the ANZSCO definition[1] (albeit a general and flexible approach considering all attached groups and subgroups), the Tribunal is not persuaded that the applicant’s Advanced Diploma of Leadership and Management is closely related to the nominated occupation of Accountant.

    [1] As required by Talha v MIBP [2015] FCAFC 115.

32. As each qualification used to satisfy the Australian study requirement is not closely related to the nominated skilled occupation, the applicant does not meet cl 485.222.

33. Based on the above findings, the applicant 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.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Jade Murphy
    Member