YAN (Migration)

YAN (Migration) [2019] AATA 5098 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Lu YAN
Mr Peng XU
Mr Hang XU
CASE NUMBER:  1810422
HOME AFFAIRS REFERENCE(S):           BCC2017/3269302
MEMBER:Kira Raif
DATE:31 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.

Statement made on 31 July 2019 at 11:01am
CATCHWORDS
MIGRATION – Skilled – Independent (Permanent) (Class SI) visa – Subclass 189 – Accountant – points test criterion – employment in nominated skilled or closely related occupation – carried out minimal tasks in nominated occupation – tasks carried out aligned with Accounting Clerks and Bookkeepers – Australian study qualifications met – Master of Professional Accounting – score stated in invitation to apply for visa not achieved – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96, 350
Migration Regulations 1994 (Cth), rr 1.15, 2.26AC, Schedule 2, cls 189.214, 189.224, Schedule 6D
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 Home Affairs on 12 April 2018 to refuse to grant the applicants visas under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The first named applicant (the applicant) was born in August 1986. She was invited to apply for the visa on 6 September 2017 and applied for the visa on 8 September 2017. The application includes her husband and child.
The applicant appeared before the Tribunal on 31 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 - Skilled - Independent of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.224. The issue in the present case is whether the applicant satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:
·is not less than the score stated in the invitation to apply for the visa and
·is not less than the ‘qualifying score’.
Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC). An applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).
Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument 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 (r.1.15I).
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?
Part 6D.1 – Age qualifications
Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.
The applicant was born in August 1986 and was invited to apply for the visa in September 2017. At the time of invitation the applicant was aged 30. Therefore, the applicant is entitled to 30 points under this part.
Part 6D.2 – English language qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa. The applicant provided with her application the PTE Academic Test Score Report indicating that she had achieved the score of at least 65 in each of the four test components. The Tribunal finds that the applicant has proficient English. Therefore, the applicant is entitled to 10 points under this part.
Part 6D.3 – Overseas employment experience qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.
The applicant stated on the application form that she had been employed for 1 year in the past 10 years and referred to her Australian employment. There is no evidence of the applicant’s overseas employment. The Tribunal is not satisfied that at the time of the invitation, the applicant had been employed outside Australia in the nominated skilled occupation or a closely related occupation. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.
Part 6D.4 – Australian employment qualifications
Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.
The applicant stated on the application form that she had been employed as an accountant for Ze International between November 2014 and January 2016. The applicant provided evidence of her employment, including an employment contract and payslips, a PAYG summary and her bank statements for 2015.
The primary decision record indicates that in December 2017 a Departmental officer contacted the applicant by phone to verify her employment and the following concerns were identified:
a.There were discrepancies relating to the amount of income shown in the applicant’s payslips and bank statements and the applicant was unable to provide a consistent explanation for that.
b.There were substantial transactions of large amounts of money in and out of the bank accounts provided by the applicant and the applicant was unable to provide a consistent explanation for that.
The delegate noted that the applicant’s contract of employment specifies her income as $17,544 pa. The applicant confirmed during the interview that she was employed for 20 hours per week and did not work any overtime. The applicant’s payslips and bank statements for 2015 show that she earned $18,767 that year and the applicant did not provide an explanation for the additional income received.
The delegate also notes that the amounts on the bank statements and in the payslips were inconsistent on multiple occasions in 2015. The applicant stated during the interview that she paid herself and other staff and that the differences were due to errors that she had made but she had adjusted the amounts to fix the errors. The applicant was also asked at the interview to provide a reason of the significant amounts of money transitioning through her bank account and the applicant was unable to provide a consistent explanation for these large amounts. The delegate noted that as the applicant claims to have paid herself and to have made errors, it was not possible to be satisfied that the bank statements and payslips were a credible source of information in establishing her employment claims and the amount of remuneration. The delegate was not satisfied the applicant was employed in Australia for at least 12 months.
The applicant provided a number of documents to the Tribunal on 25 July 2019. In her submission to the Tribunal the applicant submits that there were no discrepancies in the amounts of income shown in the payslips and the bank statements and also offered an explanation for the substantial bank transactions, stating that the money were transferred to purchase a property. With respect to the discrepancies, the applicant states that she worked as an accountant for ZE International from December 2014 to January 2016 and her contract of employment specified her income at $16.87 an hour, working 20 hours a week, with the total income of about $17,540, while the delegate found that the bank statements and payslips show a different income for that year. The applicant set out the actual payments made to her, noting that the hourly rate increased from $16.87 to $17.29 from July 2015. The applicant states that all the payslips with the exception of only four, matched the bank statements.
With respect to the large transactions, the applicant states that there is no policy disallowing such transactions and it should not be the reason for the refusal of the application. The applicant states that some of the transactions related to ‘deposits from marriage’, others were transactions between accounts or deposits from relatives. The applicant included with her submission various documents evidencing the payments.
In oral evidence the applicant told the Tribunal that her annual salary specified in the employment contract matches the income shown in the bank statements. The applicant stated that her salary from December 2014 to November 2015 covered 52 weeks while she submitted evidence of payments for 55 weeks, so her annual salary covered additional weeks, more than what was covered on the employment contract. The applicant stated that from July 2015 her salary increased and the additional income of about $164 should be added to the overall salary.
With respect to the discrepancies between the payslips and the bank statements, the applicant explained that she just started payroll work and made a mistake and transferred her superannuation rather than her salary amount. The applicant said that she made up the difference in the next payment.
The Tribunal accepts the applicant’s explanation about the overall income and the apparent discrepancy between what was stated in the employment contract and the bank statements. The Tribunal notes that there are two discrepancies between the payslips and the amounts deposited in the bank for 14 May 2015 and 18 June 2015 and the Tribunal accepts the applicant’s explanation that she mistakenly transferred the wrong amount and balanced the payment in the next pay round. The Tribunal acknowledges that the two payments when considered together do reflect the applicant’s income and are consistent with the amounts specified on the payslips. The Tribunal also accepts that the applicant was given a pay rise on 1 July 2015, which is reflected in her payslips and the bank statements, which may account for the higher total income than what was listed in the employment contract.
Having regard to the payslips and matching payments shown in the bank statements, the Tribunal accepts that the applicant was employed at Ze International between November 2014 and January 2016.
The Tribunal also notes the delegate’s concerns about the large transactions appearing on the bank statements. The applicant explained to the Tribunal that the payments were gifts from her marriage. She said her husband wanted to buy a property in Australia while she did not and because the money was deposited in the joint account, she transferred the funds into her own account so that her husband could not access it. In the Tribunal’s view, these transactions do not detract from the evidence of the applicant’s employment and are not relevant in determining whether the applicant was employed as claimed.
The Tribunal finds that the applicant was employed in Australia between November 2014 and January 2016. The Tribunal must consider whether such employment was in the nominated skilled occupation or a closely related one.
The employment contract which the applicant presented with her application indicates that the applicant was appointed as an accountant. The applicant described to the Tribunal the nature of her duties and responsibilities, stating she was responsible for payroll, accounts receivable and accounts payable, staff payroll, reconciling the roster, creating reports, processing payments for accounts payable, collating information about orders from customers, writing invoices, liaising with customers about payments, inputting invoices into the accounting systems, distributing invoices for approvals, processing payments from suppliers, reconciliation of statements, international exchange, liaison with suppliers, daily cash flow statements, consolidation of bank statements, preparation of BAS statements and financial reports and tax returns at the end of the year.
The tasks permed by accountants are set out at ANZSCO 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.
Tasks Include:
·assisting in formulating budgetary and accounting policies
·preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
·conducting 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
·examining operating costs and organisations' income and expenditure
·providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
·providing financial and taxation advice on business structures, plans and operations
·preparing taxation returns for individuals and organisations
·liaising with financial institutions and brokers to establish funds management arrangements
·introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
·maintaining internal control systems
·may appraise cash flow and financial risk of capital investment projects
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.
Having regard to the applicant’s description of her duties and responsibilities, the Tribunal is not satisfied that she performed at the professional level of an accountant or that she carried out the range of the tasks relevant to that occupation. For example, the Tribunal is not satisfied that the applicant assisted in formulating budgetary and accounting policies, conducted financial investigations or audits, provided assurance about the accuracy of information in the financial reports and their statutory compliance, provided financial and taxation advice on business structures, plans and operations, advised on the selection and application of computer-based accounting systems, maintained internal control systems or appraised financial risk of capital investment projects. The applicant explained to the Tribunal that it was her first job and it would have been difficult for her to work as an accountant without any experience and while that may be the case, the Tribunal notes that to gain relevant points, the applicant must have worked in the nominated occupation or a closely related one.
The Tribunal accepts that the applicant may have performed some duties of an accountant, for example, she referred to the preparation of BAS statements and tax returns. However, that is not sufficient to render the applicant’s engagement in the occupation of an accountant because, at best, the applicant carried out minimal tasks in the nominated occupation.
Having regard to the applicant’s duties and responsibilities, as she set out in her oral evidence to the Tribunal, the Tribunal has formed the view that the applicant was employed in Minor Group 551 Accounting Clerks and Bookkeepers. ANZSCO states the following

ACCOUNTING CLERKS AND BOOKKEEPERS compile, record and process documents relating to creditors and debtors, operating costs, financial transactions and payrolls.
·preparing and processing documentation related to accounts payable and receivable, and wages and salaries
·reconciling invoices and despatching payments
·investigating, compiling and preparing reports of operating cost data
·keeping financial records
·maintaining, reconciling and balancing accounts
·processing payments of accounts, and wages and salaries
The Tribunal has formed the view that the applicant’s duties and responsibilities match the occupations in that major group more closely than those performed by an accountant. The term ‘employed’ is defined in r.2.26AC as being engaged in an occupation for remuneration for at least 20 hours a week. The Tribunal finds that at its highest, the applicant performed some tasks relating to the role of an accountant but was employed in more than one occupation, partly performing the duties of an accountant and largely performing the duties of an accounting clerk or a bookkeeper. The applicant told the Tribunal that she has not worked for more than 20 hours a week and, as such, the Tribunal is not satisfied that she was ‘employed’ as an accountant within the meaning of r. 2.26AC.
The Tribunal does not consider that the occupations in Minor Group 551 are closely related to the occupation of an accountant because of the different entry level for the occupations and different complexity of work and responsibilities. While the occupation of an accountant requires a degree, the occupations in Minor Group 551 require an AQF Certificate II or III or one year of relevant experience.
The Tribunal is not satisfied that the applicant has been employed in Australia in the nominated skilled occupation or a closely related occupation for Ze International. The applicant has not claimed any other employment in Australia. The applicant is entitled to no points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 0. As this is not more than 20 points, the applicant is entitled to no points under this part.
Part 6D.6 – Australian professional year qualifications
Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months.

The applicant provided with her application evidence of having completed a Skilled Migration Internship Program in Accounting in December 2015. The Tribunal is satisfied that the applicant had completed a professional year in Australia in the nominated skilled occupation. Therefore, the applicant is entitled to 5 points under this part.
Part 6D.7 – Educational qualifications
An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.
The applicant completed a Master of Professional Accounting at UTS and provided evidence of that qualification. The Tribunal finds that at the time of invitation the applicant had met the requirements for the award of at least a bachelor degree by an Australian educational institution. Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in r.2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.
There is no evidence that the applicant had completed her masters degree by research or that she holds a doctoral degree. Therefore, the applicant is entitled to no points under this part.
Part 6D.8 – Australian study qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.
The applicant provided with the application evidence of having completed a Masters course at UTS. The academic transcript indicates that the course was completed over four semesters in 2010 and 2011. The Tribunal is satisfied the course was a registered course, which was completed in at least 16 calendar months and 2 academic years of study. The Tribunal is satisfied the language of instruction was English and that the applicant held the visa authorising her to study. As the
Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part.
Part 6D.9 – Credentialled community language qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.
The applicant provided with her application evidence of having been validated by NAATI as a professional translator into Chinese. The Tribunal finds that the applicant is entitled to 5 points under this part.
Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications
Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes.
There is no evidence that the applicant undertook her study at a specified campus. Therefore, the applicant is entitled to no points under this part.
Part 6D.11 – Partner Skill Qualifications
Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under a specified age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.
The applicant referred to her partner’s study in the application form but provided no evidence that her partner had nominated a skilled occupation or that he had been assessed as having suitable skills for the occupation. Therefore, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.
Part 6D.13 – Designated area sponsorship qualifications
Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.
Conclusion on points
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:
6D.1 - Age  30 points
6D.2 - English language  10 points
6D.3 - Overseas employment experience  0points
6D.4 - Australian employment experience  0 points
6D.5 - Aggregated employment  0 points
6D.6 - Australian professional year  5 points
6D.7 - Educational  15 points
6D.7A – Specialist educational  0 points
6D.8 - Australian study  5 points
6D.9 - Credentialled community language  5 points
6D.10 - Study in regional / low-population area  0 points
6D.11 - Partner skill  0 points
6D.12 - State or Territory nomination  0 points
6D.13 - Designated area sponsorship  0 points
Total points  70 points
The applicant’s assessed score under the points system is therefore 70 points. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has therefore achieved the qualifying score to pass the points test.
Has the applicant achieved the score stated in the invitation to apply for the visa?
It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The primary decision record indicates that the written invitation given to the applicant stated a score of 75 points. On the basis of the points assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa. The Tribunal is not satisfied the applicant meets cl. 189.214(1) and cl. 189.214. The secondary applicants do not meet the secondary criteria for visa grant and there is no evidence that they meet the primary criteria for visa grant.
Conclusion
For the above reasons, the applicant is entitled to a maximum of 70 points under the points test. As the applicant’s score is less than the score stated in the invitation to apply for the visa, the applicant does not satisfy cl.189.224. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.
Kira Raif
Senior Member

[2019] AATA 5098

31 July 2019

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Immigration

Administrative Law

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Judicial Review

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