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

1. 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).

2. 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).

3. 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.

4. The applicant sought review of the delegate’s decision on 29 March 2020.

5. 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.

6. 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.

7. 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.

8. 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;

   ·Master of Professional Accounting at Holmes Institute completed in July 2018 with the registered duration of 78 weeks; and

   ·Bachelor of Business and Commerce at Monash University completed in July 2015 with the registered duration of 156 weeks.

9. On 21 October 2019 he obtained successful provisional skills assessment from CPA Australia. He conceded in his evidence that it was not necessary to submit his Advanced Diploma of Translation with his provisional skills assessment application to CPA Australia.  

10. He gave evidence that he did not work in Australia in his nominated occupation. He stated that he is financially supported by his parents from China. In addition to that, he owns a property in Australia and is receiving rental income. He stated that since March 2020, he could neither find employment in Australia nor return to China because of the Covid19 pandemic.

11. He stated in his evidence that he has failed to apply for a Subclass 485 visa within six months after completing Master of Professional Accounting. He was advised by his migration agent to enrol into Advanced Diploma of Translation course.

12. When asked by the Tribunal why he believes that Advanced Diploma of Translation is closely related to his nominated occupation of an Accountant, the applicant stated that he could not answer that question.

13. The Tribunal explained to the applicant the ANZSCO hierarchies for classifying occupations and tasks enlisted under each of these ANZSCO hierarchies. The Tribunal further explained that, in considering whether these qualifications are closely related to the applicant’s nominated occupation, the Tribunal is not undertaking an assessment of whether any skills obtained from qualifications would benefit the applicant or be useful in a particular business context. Rather, the Tribunal is required to objectively consider whether the qualifications itself are ‘closely related’ to the nominated occupation having regard to ANZSCO as a whole.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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?

16. 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.

17. ‘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.

18. 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’.

19. 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.

20. 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.

21. 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.

22. Departmental records confirm that during the period between March 2013 (when the applicant commenced studies in Australia) and August 2019 (when he completed an Advanced Diploma of Translation) he was in Australia as the holder of Student visas authorising him to study in Australia.

23. Based on the evidence outlined above, the Tribunal finds that the applicant satisfies the ‘Australian study requirement’ in the six months immediately preceding the date of his Subclass 485 visa application. Therefore, he meets cl.485.221 of Schedule 2 to the Regulations.

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

24. 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 (rr.1.03 and 1.15I of the Regulations).

25. In this case, the applicant nominated the occupation of an Accountant which is a skilled occupation specified in the relevant instrument. The issue is whether each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated occupation.

26. The term ‘closely related’ is not defined in the Regulations. However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon[1] and Talha v MIBP,[2] as well as the Federal Court of Australia in its decision in Constantino v MIBP.[3] Accordingly, the Tribunal has been guided by these cases in its consideration of the issue presented in the applicant’s case.

    [1] (2014) 227 FCR 525.

    [2] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.

    [3] [2013] FCA 1301, Jacobson J.

27. The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:

    ·While the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between two things. And, although the words ‘closely related’ do not require an exact correspondence,[4] the relationship must be more than merely complementary.[5]

    ·In making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation (emphasis added).[6]

    ·It is appropriate to objectively consider the relationship of the applicant’s qualification (or, in this case, qualifications) to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[7]

    [4] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33] quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].

    [5] Uddin v MIAC [2010] FCA 1281, North J at [10]–[12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; and, MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].

    [6] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].

    [7] Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM at [48]–[67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to the nominated occupation.

28. It is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation[8] and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated occupation.[9]

    [8] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53].

    [9] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].

29. The Tribunal accepts that both the applicant’s Bachelor of Business and Commerce and Master of Professional Accounting are closely related to his nominated occupation of Accountant.  In this regard, the Tribunal notes that the applicant’s skills assessment issued by CPA Australia dated 21 October 2019 confirms that his positive assessment was based on his Bachelor of Business and Commerce and Master of Professional Accounting.  Significantly, the CPA Australia’s skill assessment makes no reference to the applicant’s Advanced Diploma in Translating. 

30. In considering whether the applicant’s Advanced Diploma of Translation is closely related to his nominated skilled occupation of Accountant, the Tribunal had regard to hierarchies and groupings in ANZSCO of which the occupation forms part. The Tribunal discussed this issue with the applicant at the hearing.

31. The Full Federal Court’s decision in Talha v MIBP referred to above notes that ANZSCO comprises a system of five hierarchies for classifying occupations. At the lowest level of this hierarchy, ANZSCO has a list of ‘Occupations’. The next level of hierarchy is known as a ‘Unit Group’. The next step up the ladder of the ANZSCO hierarchy is known as a ‘Minor Group’. Minor Groups are then aggregated to form ‘Sub-Major Groups’ which, in turn, step up and are aggregated at the highest level to form ‘Major Groups’.

32. ANZSCO states that an 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.

33. The applicant’s nominated occupation forms part of a broader Unit Group 2211 which is called Accountants. There are three occupations in Unit Group 2211: Accountant (General) ANZSCO 221111, Management Accountant (ANZSCO 221112 and Taxation Accountant (ANZSCO 221113). Full details in relation to Unit Group 2211 are extracted in Annexure A to this decision.

34. Unit Group 2211 forms part of a higher hierarchy called Minor Group 221 Accountant, Auditors and Company Secretaries: full details are extracted at Annexure B.  The ANZSCO description for Minor Group 221 states that 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’. 

35. Minor Group 211 in turn forms part of a higher Sub-Major Group 22, which is called Business, Human Resource and Marketing Professionals: full details are set out in Annexure C.  ANZSCO’s description for Sub-Major Group 22 states that Business, Human Resource and Marketing Professionals ‘perform analytical, conceptual and practical tasks to provide services in financial accounting and transaction matters, human resource development, public relations and marketing, and conduct studies of the economy, organisational structures, methods and systems’. 

36. The highest hierarchy within which the applicant’s nominated occupation of Accountant is Major Group 2 Professionals.  ANZSCO states Professionals ‘perform analytical, conceptual and creative tasks through the application of theoretical knowledge and expertise in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare’: see extract at Annexure D for full details. 

37. Having identified information in ANZSCO in relation to the occupation of Accountant, the Tribunal has considered the applicant’s studies in translating. The Tribunal considered the academic transcripts for an Advanced Diploma of Translation provided by the applicant with his application and is not satisfied that subjects completed by the applicant during his study for the Advanced Diploma of Translation are closely related to the above listed tasks in Unit Group 2211 or any of the other ANZSCO hierarchies’ tasks related to this occupation.

38. The Tribunal considered the relationship of the applicant’s qualifications to the ANZSCO definition of the occupation rather than relying on the applicant’s own description of what the occupation entails. The Tribunal compared the whole of the Australian studies with the whole of the nominated occupation.

39. Having carefully considered all of the evidence, the Tribunal does not accept that Mr Yu’s Advanced Diploma in Translation is closely related to his nominated occupation of Accountant as claimed. 

40. As the Tribunal has found Mr Yu’s Advanced Diploma in Translating qualification is not closely related to his nominated skilled occupation of an Accountant it follows that he does not meet cl.485.222 of Part 485 of Schedule 2 to the Regulations.

41. 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

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

    Antonio Dronjic
    Member

    
    

    Annexure A – Extract from ANZSCO

    UNIT 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 Accountant
    221113 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 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.

    Skill Level: 1 
    Specialisations: 

    Financial Analyst
    Insolvency Consultant
    Insolvency Practitioner

    
    221112 MANAGEMENT ACCOUNTANT
    Alternative Title: Cost Accountant

    
    Provides 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 Accountant
    Commercial Accountant
    Product Accountant

    
    221113 TAXATION ACCOUNTANT
    Alternative Titles:
    Taxation Agent
    Taxation Consultant

    
    Analyses, 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: 1

    Annexure B – Extract from ANZSCO

    MINOR 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
    
    

This section contains the following subsection :

         UNIT GROUP 2211 Accountants

         UNIT GROUP 2212 Auditors, Company Secretaries and Corporate Treasurers

Annexure C – Extract from ANZSCO

SUB-MAJOR GROUP 22 BUSINESS, HUMAN RESOURCE AND MARKETING PROFESSIONALS

BUSINESS, HUMAN RESOURCE AND MARKETING PROFESSIONALS perform analytical, conceptual and practical tasks to provide services in financial accounting and transaction matters, human resource development, public relations and marketing, and conduct studies of the economy, organisational structures, methods and systems.

Indicative Skill Level:
Most occupations in this sub-major group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or
AQF Associate Degree, Advancedd Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In New Zealand:

Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or
NZ Register Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2).

In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Tasks Include:

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

oconducting audits, preparing financial statements and controlling treasury systems for organisations

odeveloping and reviewing financial plans and strategies, executing buy and sell orders, and negotiating the purchase and sale of commodities

odeveloping, implementing and evaluating staff recruitment, training and development programs

oresearching, developing and implementing marketing and public relations campaigns

ostudying and developing methods and policies to improve and promote government and business operations and effectiveness

odeveloping and managing record and archival systems for retention and destruction of legal, administrative, evidential, historical and other records

This section contains the following subsection :

       MINOR GROUP 221 Accountants, Auditors and Company Secretaries

       MINOR GROUP 222 Financial Brokers and Dealers, and Investment Advisers

       MINOR GROUP 223 Human Resource and Training Professionals

       MINOR GROUP 224 Information and Organisation Professionals

       MINOR GROUP 225 Sales, Marketing and Public Relations Professionals

Annexure D – Extract from ANZSCO

MAJOR GROUP 2 PROFESSIONALS

PROFESSIONALS perform analytical, conceptual and creative tasks through the application of theoretical knowledge and experience in the fields of the arts, media, business, design, engineering, the physical and life sciences, transport, education, health, information and communication technology, the law, social sciences and social welfare.

Indicative Skill Level:
Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or
AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2)

In New Zealand:

Bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification (ANZSCO Skill Level 1); or
NZ Register Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2).

In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

Some occupations, such as those in Sub-Major Group 21 Arts and Media Professionals, require high levels of creative talent or personal commitment and interest as well as, or in place of, formal qualifications or experience.

Tasks Include:

ocommunicating ideas through language, printed and electronic media, and artistic media including the visual and performing arts

oanalysing, planning, developing and implementing programs and solutions to resolve business and economic problems

oproviding services in financial accounting, human resource development, publicity and marketing, and the efficient operation of organisations

oflying aircraft, and controlling and directing the operation of ships, boats and marine equipment

oconducting and analysing research to extend the body of knowledge in the field of the sciences and developing techniques to apply this knowledge

odesigning products, buildings and other physical structures, and engineering systems

oresearching and developing curricula, and teaching students in a range of educational settings

odesigning, implementing, testing and maintaining technologies and services that enable information to be accessed, stored, manipulated, processed, and disseminated

oidentifying, treating, and advising on, health, social, and personal issues

oadvising clients on legal matters

This section contains the following subsection :

     SUB-MAJOR GROUP 21 Arts and Media Professionals

     SUB-MAJOR GROUP 22 Business, Human Resource and Marketing Professionals

     SUB-MAJOR GROUP 23 Design, Engineering, Science and Transport Professionals

     SUB-MAJOR GROUP 24 Education Professionals

     SUB-MAJOR GROUP 25 Health Professionals

     SUB-MAJOR GROUP 26 ICT Professionals

     SUB-MAJOR GROUP 27 Legal, Social and Welfare Professionals