XIAO (Migration)

[2019] AATA 4848

XIAO (Migration) [2019] AATA 4848 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms JINGYU XIAO

CASE NUMBER:  1817938

HOME AFFAIRS REFERENCE(S):           BCC2018/1198875

MEMBER:Denise Connolly

DATE:17 October 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 17 October 2019 at 12:18pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 – no appearance by applicant at hearing – whether course undertaken for study requirement (marketing) closely related to nominated skilled occupation (accountant) – applicant’s future career plan – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

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 1 June 2018 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 applied for the visa on 13 March 2018. 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). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations as she was not satisfied the Master of Marketing used by the applicant to satisfy the Australian study requirement is closely related to her nominated skilled occupation, Accountant.

4. On 17 September 2019, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it on 17 October 2019 at 9:30AM to give evidence and present arguments relating to the issues arising in the case. The letter informed the applicant that if she did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before it, or it may dismiss the application for review without any further consideration of the application or information before it. 

5. The applicant did not attend the hearing at the scheduled date and time. The Tribunal notes that the hearing invitation was sent to the email address last provided in connection with the review, provided on 21 June 2018 and confirmed by the applicant by email on the same day. The Tribunal also notes that the applicant was sent 2 SMS reminders about the hearing 5 business days and one business day before the scheduled hearing The applicant has not sought a postponement of hearing or provided any explanation for why she did not attend the hearing.  Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and that the invitation was sent using the last email address provided in connection with the review, and the invitation has not been returned to sender, and the applicant was twice reminded about the hearing by SMS. No satisfactory reason for the non-appearance has been given. Accordingly the Tribunal will proceed to make its decision on the evidence before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of Schedule 2 to the Regulations. It requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation. The issue in the present case is whether the applicant meets that requirement.

7. When making the visa application the applicant stated that she had completed a Masters (by coursework) degree, a Master of Accounting at the University of Technology Sydney (UTS). The Department requested that the applicant provide further evidence, the official academic transcript for her Masters. The applicant provided evidence that she completed a Bachelor of Commerce, majoring in Accounting at the University of Queensland in December 2015. A letter from the University of Queensland records that she completed the academic requirements for the course on 2 December 2015. The applicant also provided a letter of completion from UTS indicating that she completed a Master of Marketing, taught in English in the period August 2016 to November 2017. The letter advised that the normal course duration is 1½ years. The applicant provided her academic record and transcript.

8. The applicant also provided her skills assessment dated 12 March 2018 undertaken by Chartered Accountants Australia recording that her skills are suitable for the nominated occupation Accountant (General) ANZSCO 221111. The skills assessment advised that CAA considered her Bachelor of Commerce (Accounting) to be a suitable qualification for the nominated occupation.

9. The applicant also provided a statement in which she explained that her Bachelor degree covered the mandatory competency areas for the occupation Accountant. However she believes her postgraduate study is closely related to her proposed career development. She explained that the Master of Marketing provides her with an opportunity to extend her knowledge in areas of communication, sales management, the development and introduction of new products, business to business marketing, technology and marketing, as well as the ethical implications of marketing in Australia. She opined that marketing and accounting must work closely so that management can see where the marketing campaigns are successful and the budgets for future expenditure in marketing and advertising can be prepared. The applicant also explained that her future career plan is to start in a business as an accountant but she would like to be promoted to higher level position regarding marketing management. She believes the combination of her Bachelor degree in commerce and her Masters in Marketing are closely related to the nominated occupation General Accountant and that they equip her with the essential skills required for real practice in a real workplace.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. Having considered the information provided about the applicant’s Master of Marketing, the delegate was not satisfied the applicant had addressed how her qualification used to satisfy the Australian study requirement, the Master of Marketing, is closely related to her nominated occupation of Accountant. The delegate set out the ANZSCO definition for Accountant and noted that none of the tasks refer to marketing related activities. The delegate noted that the applicant had provided a statement in which she explained that her future career plan is to start in a business as an accountant but that she would like to get a promotion to a higher level position. While the delegate acknowledged this was the applicant’s future career plan she explained that she was required to consider whether the qualification on which the applicant relied to meet the Australian study requirement is closely related to her nominated occupation. She explained that because the applicant completed her Bachelor of Commerce in December 2015, that course alone could not be relied on to satisfy the Australian study requirement (because it was not completed in the 6 months immediately preceding the day the visa application was made as required by cl.485.221) and that therefore the applicant must rely on the Master of Marketing. The delegate was not satisfied the Master of Marketing is closely related to the applicant’s nominated occupation of Accountant. She therefore found that the applicant did not meet cl.485.222.

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

11. First the Tribunal agrees with the delegate that the applicant must rely on the Master of Marketing to meet cl.485.221 as it requires that the Australian study requirement was met in the 6 months immediately preceding the date of the visa application. The applicant applied for the visa on 13 March 2018. She completed her Bachelor of Commerce in December 2015. She therefore must rely on the Master of Marketing, completed in November 2017, to meet cl.485.221. There does not appear to be any dispute about this.

12. 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).  In this case, the applicant nominated the occupation of Accountant (General) which is a skilled occupation specified in the relevant instrument.  

13. In considering whether the applicant’s Master of Marketing is closely related to the nominated occupation Accountant (General) the Tribunal has considered the ANZSCO description for the nominated occupation.  ANZSCO Unit Group 2211 Accountants and 221111 Accountant (General) state as follows:

    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

14. The Tribunal has taken into account the applicant’s written submissions. The applicant has argued that the Master of Marketing will assist her to achieve her career goals and that there is a relationship between marketing and accounting. However in making its assessment of whether the qualification is closely related to the nominated occupation, the Tribunal must focus on the nominated occupation rather than her claimed or proposed occupational career path. In the Tribunal’s view it is reasonable to give substantial weight to the contents of the ANZSCO descriptions. The Tribunal is also of the view it must consider the whole of the nominated skilled occupation, not just one aspect of the occupation. In considering whether the Tribunal is satisfied that the applicant’s Master of Marketing is closely related to the occupation of Accountant, the Tribunal has considered the whole of the Marketing course which is described in her Academic Record and transcript dated 6 December 2017. Clearly the course is focused on marketing and management, not accounting. Having considered the ANZSCO description for the occupation Accountant, the Tribunal is not satisfied that marketing skills form part of the whole of the nominated skilled occupation.

15. The Tribunal is not satisfied that the marketing skills the applicant acquired in her Master of Marketing are closely related to the nominated occupation of Accountant. It is not satisfied therefore that each of the qualifications used to satisfy the Australian study requirement is closely related to the nominated occupation.

16. As the applicant’s Master of Marketing qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

17. On the basis of 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

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

    Denise Connolly
    Member