Peng (Migration)

[2019] AATA 4486

Peng (Migration) [2019] AATA 4486 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shiying Peng

CASE NUMBER:  1709195

HOME AFFAIRS REFERENCE(S):           BCC2017/776050

MEMBER:Kira Raif

DATE:11 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2019 at 10:00am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – qualification was not closely related to the nominated occupation –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362B, 379
Migration Regulations 1994, rr 1.03,1.15, Schedule 2, cls 485.221, 485.222
Education Services for Overseas Students Act 2000

CASES
Manik v MIAC [2012] FMCA 149
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 Immigration and Border Protection on 10 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of China, born in July 1992. She applied for the visa on 27 February 2017. 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 each qualification used to meet the Australian study requirement was closely related to the nominated occupation. The applicant seeks review of the delegate’s decision.

3. On 8 August 2019 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 11 September 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant two SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. No response to the hearing invitation was received and the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. An officer of the Tribunal also attempted to contact the applicant by phone on 11 September 2019 but was unable to speak to the applicant. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   Relevant law

6. Visa Class VC contains Subclass 485. 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).

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 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 preceding 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).

8. Clause 485.222 requires the qualification used to satisfy that requirement to be 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 (rr.1.03 and 1.15I).

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

9. The applicant provided to the Tribunal a copy of the primary decision record.

10. The applicant had nominated the occupation of Internal Auditor (ANZSCO 221214) in her application. She stated in the application form that she completed the following study in Australia.

    03/16 – 08/16             Diploma of Interpreting

    11/13 – 11/15             Bachelor of Commerce

11. The Tribunal finds that the only qualification completed in the 6 months before the application was made was the Diploma of Interpreting. The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement. The Tribunal must consider whether the Diploma of Interpreting is closely related to the applicant’s nominated occupation of Internal Auditor.

12. The applicant provided to the Tribunal copies of the various documents previously submitted to the Department, including evidence of her Australian study, skills assessment, police certificate and other materials. The applicant also provided a written statement outlining the close relationship between her qualifications and the nominated occupation.

13. The applicant stated in her written submission to the Tribunal that she believes the Diploma of Interpreting is closely related to the occupation of internal auditor. The applicant refers to the guidance provided on the Department website which refers to the skills being ‘directly transferrable’ to the occupation and the skills being capable of being applied in the nominated occupation. The applicant states that having bilingual interpreting skills is a transferrable skill to her nominated occupation and the skills can be directly applied in the practices of accounting and auditing. The applicant refers to the ANZSCO description for the occupation and notes that it includes tasks such as examining, verifying, evaluating and reporting on financial, operational and managerial processes, systems and outcomes, assisting in the process reviews, risk assessment, etc. The applicant states that these tasks involve a large amount of communicating activities where auditors have to deal with clients relating to their business trading and operations. The applicant states that the accounting internship program is based on communication and shared experience between graduates and “seniors”. The applicant submits that this means she would have many chances in auditing cases of international or multinational corporations and many overseas business trips and would need to approach and communicate with clients from all over the world. The applicant refers to the development of the Chinese economy and investment from Chinese enterprises and she states she took advantage of being a Chinese native speaker as she could assist Chinese investors to communicate and deal with Australian local companies by utilising her interpreting skills.

14. The Tribunal does not accept the applicant’s arguments.

15. Firstly, the Tribunal is of the view that the advantages to which the applicant refers arise from her being multi-lingual and due to her ability to communicate in another language, rather than interpreting skills. The Tribunal does not accept that it is the skills acquired in the interpreting course, rather than the applicant’s linguistic knowledge, that she believes will be useful in her occupation.

16. Secondly, the applicant seeks to establish the benefits of her linguistic and interpreting skills to the nominated occupation. However, being beneficial or useful is not sufficient. There must be a closer relationship between the qualification and the occupation rather than merely the benefit or usefulness of one to the other.

17. Thirdly, and importantly, the Tribunal is of the view that the applicant’s claims impermissibly limit the scope of the nominated occupation. The applicant did not nominate the occupation of an internal auditor for the Chinese community or an internal auditor specialising in the Chinese market. These are not occupations in themselves, nor are they recognised subsets of the nominated occupation of an internal auditor. The occupation of an internal auditor is much broader than specialisation in a single country or community or within a single group of people. There is no such occupation as an internal auditor for the Chinese market. Thus, the Tribunal does not accept the applicant’s claim that the knowledge of the language or the interpreting skills that would enable her to work with a particular community reflect the work of an Internal Auditor.

18. ANZSCO provides the following in relation to the nominated occupation.

    AUDITORS, COMPANY SECRETARIES AND CORPORATE TREASURERS conduct audits of accounting systems, procedures and financial statements, manage corporate funding and financial risk, and administer and review corporate compliance activities…

    Tasks Include:

    oarranging, giving notice of and attending meetings of directors and shareholders

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

    osupervising organisations' share capital by preparing documents and share issues, and handling share transfers

    ocontrolling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies

    oidentifying, managing and reporting on financial risks

    oassisting with equity management, debt management, securities and taxation planning issues

    ocollecting, analysing and interpreting information on the financial standing, cost structures and trading effectiveness of organisations

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

    oconducting audits and investigations and preparing financial statements and reports for management, shareholders, and governing and statutory bodies

    oevaluating the cost effectiveness and risks of operational processes, activities, policies and systems

    oreporting to management on the existence and effectiveness of the system of internal controls

    oestablishing audit objectives, and designing and implementing audit methodologies, processes and audit report criteria

    221214 INTERNAL AUDITOR
    
    Examines, verifies, evaluates and reports on financial, operational and managerial processes, systems and outcomes to ensure financial and operational integrity and compliance, and assists in business process reviews, risk assessments, developing deliverables and reporting progress against outcomes. Registration or licensing may be required.

19. In the Tribunal’s view, the tasks of the internal auditor as specified in ANZSCO do not involve the tasks of the interpreter or any of the tasks that the applicant refers to in her role as an interpreter. The Tribunal is mindful of the reasoning in Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115 which emphasise the significance of ANZSCO in determining the close relationship. The Tribunal thus prefers the description for the occupation set out in ANZSCO rather than the applicant’s own description of what internal auditors may do in the course of their employment or what the applicant herself believes she may do given her personal skills and knowledge. While the Tribunal accepts the applicant’s evidence that she intends to work in the Chinese market, given her personal background, the Tribunal must consider the objective requirements for the occupation and not the applicant’s future intention and job aspirations.

20. Having considered all the evidence before it, the Tribunal is not satisfied the Diploma of Interpreting is closely related to the occupation of internal auditor. The Tribunal is not satisfied the applicant meets cl. 485.222.

    Conclusion

21. On the basis of the above findings, the Tribunal finds that 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

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

    Kira Raif
    Senior Member