Yu (Migration) - [2021] AATA 2206

Yu (Migration) [2021] AATA 2206 (16 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xiao Yu
CASE NUMBER:  2006290
HOME AFFAIRS REFERENCE(S):          BCC2019/5337203
MEMBER:Antonio Dronjic
DATE:16 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 16 June 2021 at 2:47pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualification closely related to nominated occupation – qualification in translating and occupation of accountant – no visa application made within six months of completing previous closely related qualification – unable to find work in Australia or return to home country – content of qualification compared with ANZSCO description of occupation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
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 11 March 2020 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 October 2019. 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 delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant’s Advanced Diploma of Translating completed in August 2019 was closely related to the nominated occupation of Accountant. A copy of the delegate’s decision was provided to the Tribunal.
The applicant sought review of the delegate’s decision on 29 March 2020.
On 19 April 2021, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 16 June 2021.
The applicant appeared via video conference before the Tribunal on 16 June 2021, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant is 29 years of age and a citizen of China. He first arrived in Australia in October 2011 as the holder of a Student visa.
He confirmed in his evidence that he completed the following courses in Australia:
·Advanced Diploma of Translation at Sydney Institute of Interpreting and Translation (SIIT), completed in August 2019, with the registered duration of 52 weeks;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yu (Migration)

Details

AGLC: Yu (Migration) [2021] AATA 2206
Case: [2021] AATA 2206
Decision Date: 16 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, Subclass 485, in the Graduate Work stream. The applicant's eligibility for this visa was contested.

The Tribunal was required to determine whether the applicant met the primary criteria for the visa, specifically cl.485.221 and cl.485.222 of Schedule 2 to the Regulations. These clauses mandate that an applicant must have satisfied the ‘Australian study requirement’ in the six months preceding the visa application and that any qualifications used to meet this requirement must be closely related to the applicant’s nominated skilled occupation.

The Tribunal found that the applicant did not satisfy the Australian study requirement. While the applicant had completed several registered courses in Australia, including an Advanced Diploma of Translation, a Master of Professional Accounting, and a Bachelor of Business and Commerce, the Tribunal concluded that these qualifications, when considered together, did not meet the criteria for the ‘Australian study requirement’ as defined by r.1.15F(1) of the Regulations. The applicant's nominated occupation was accountant, and the Tribunal implicitly found that the qualifications were not closely related to this occupation, nor did the applicant meet the Australian study requirement. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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? Under r.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. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.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 (r.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. The ‘Australian study requirement’ does not require visa applicants to have completed a single course of study of two academic years’ duration. Accordingly, it is necessary to consider whether the applicant can rely on all the courses he completed in Australia to meet the ‘Australian study requirement’. The applicant is seeking to rely on completion of the following courses:·Advanced Diploma of Translation at Sydney Institute, completed in August 2019;·Master of Professional Accounting at Holmes Institute completed in July 2018; and ·Bachelor of Business and Commerce at Monash University completed in July 2015. The CRICOS website confirms that the:·Advanced Diploma of Translation was registered for 52 weeks and all instruction was in English;·Master of Professional Accounting was registered for 78 weeks and all instruction was in English;·Bachelor of Business and Commerce was registered for 156 weeks and all instruction was in English. Accordingly, the Tribunal finds that the registered courses undertaken by the applicant in Australia have a total registered duration in excess of 92 weeks and were completed in a total of at least 16 calendar months.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Antonio DronjicMemberAnnexure A – Extract from ANZSCOUNIT GROUP 2211 ACCOUNTANTS 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: Occupations:221111 Accountant (General)221112 Management Accountant221113 Taxation Accountant 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 projects221111 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 Specialisations: Financial AnalystInsolvency ConsultantInsolvency Practitioner221112 MANAGEMENT ACCOUNTANTAlternative Title: Cost AccountantProvides services relating to performance-based financial reporting, asset valuation, budgetary systems, cost management, pricing, forecasting and the strategic governance of organisations. Provides advice on financial planning, risk management, carbon sequestration projects and carbon pricing and provides management with reports to assist in decision-making. May provide insight into cost performance and support the implementation of benchmarking and quality improvement initiatives. Registration or licensing may be required.Skill Level: 1 Specialisations: Carbon AccountantCommercial AccountantProduct Accountant221113 TAXATION ACCOUNTANTAlternative Titles:Taxation AgentTaxation ConsultantAnalyses, reports and provides advice on taxation issues to organisations or individuals, prepares taxation returns and reports, and handles disputes with taxation authorities. Registration or licensing may be required.Skill Level: 1Annexure B – Extract from ANZSCOMINOR GROUP 221 ACCOUNTANTS, AUDITORS AND COMPANY SECRETARIES ACCOUNTANTS, AUDITORS AND COMPANY SECRETARIES plan and provide accounting, financial auditing and treasury valuation services and systems to individuals and organisations, and plan and review legislative compliance activities. Indicative Skill Level:In Australia and New Zealand: Most occupations in this minor group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal 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).Tasks Include: ocollecting, analysing and interpreting information on the financial status, 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 statutory and other bodies ocontrolling treasury and treasury systems and establishing and reviewing risk management objectives and treasury policies oarranging and giving notice of meetings of directors and shareholders oadvising organisations' governing boards on matters concerning compliance with stock exchange listing rules, relevant legislation and corporation practice

Ratio Decidendi

Legal Principle Established

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