Zhang (Migration) - [2018] AATA 5126

Zhang (Migration) [2018] AATA 5126 (18 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Weidong Zhang
CASE NUMBER:  1701338
HOME AFFAIRS REFERENCE(S):           BCC2016/4034434
MEMBER:Kira Raif
DATE:18 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 18 December 2018 at 10:08am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – Accountant (General) ANZSCO 221111 – Diploma of Interpreting and the Advanced Diploma of Translating completed six months before application date – qualification not closely related to his nominated occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65,
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222
CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Walia v MIBP [2015] FCCA 1949
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 Immigration and Border Protection on 9 January 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of China born in April 1990. The applicant applied for the visa on 30 November 2016. 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 that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 18 December 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
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). The issue in the present case is whether the applicant meets those requirements.
Is the qualification ‘closely related’ to the nominated occupation?
The applicant stated in his application that he completed the following study
08/12   Diploma of Commerce
10/15   Bachelor of Commerce
09/16   Diploma of Interpreting
10/16   Advanced Diploma of Translating
The applicant had nominated the occupation of Accountant (General) ANZSCO 221111 in his application and provided a skills assessment with the application, as well as evidence of his study.
The applicant made the application for the visa in November 2016. The Tribunal finds that the only qualifications the applicant completed in the period of 6 months immediately before the day the application was made were the Diploma of Interpreting and the Advanced Diploma of Translating. The Tribunal finds that the applicant relied on these qualifications to meet the Australian study requirement. As the applicant had nominated the occupation of Accountant (General), the Tribunal must be satisfied that the Diploma of Interpreting and the Advanced Diploma of Translating are closely related to the nominated occupation of Accountant.
The applicant provided a written submission to the Tribunal on 14 November 2018. The applicant claims that the ground for refusing his application did not exist. The applicant stats that after completing his Bachelor degree at Deakin University, he made an application for another Student visa in September 2015 and enrolled in a Diploma of Interpreting and Advanced Diploma of Translating. He completed the latter course within 6 months of the visa application was made. The Tribunal accepts that evidence, but notes that contrary to the applicant’s suggestion, the reason for the refusal by the delegate was not because his application was made more than 6 months after the applicant completed his bachelor degree.
The applicant refers to the relevant guidance from PAMs on the issue of close relationship in the context of interpreting / translating qualifications, which refers to the nominated occupation having an international component. The applicant states that the occupation of an accountant has “many international elements”. The applicant refer to the subject he has completed as part of his bachelor degree and explains their international context. The Tribunal finds that submission unpersuasive. The Tribunal does not accept that having an international component to any occupation would render such an occupation to be closely related to qualifications in interpreting or translating. If that is the advice set out in PAMs, the Tribunal considers it to be unhelpful and not consistent with the legislative requirements. The Tribunal acknowledges the applicant’s reference to certain subjects he completed as part of his degree and his claim that these have an international component but, putting aside the Tribunal’s view that having an international component is not sufficient, the Tribunal also considers that the close relationship must exist between the qualification and the occupation as a whole and not individual subjects that the applicant has selected and individual aspects of the occupation.
The applicant claims that in addition to the subjects he completed, accounting is a highly international occupation as Australia is a popular investment destination and investors need local accountants to optimise their investment plans and skills in interpreting and translating can avoid communication barriers. The applicant states that accountants play an important role in the Australian economy and deal with documents in different languages and having translating qualifications would be useful. The applicant repeated these arguments in his oral evidence to the Tribunal. He states that in his work he deals with foreign investors or people with limited English and he would not have been able to obtain the internship if it was not for his language and communication skills. The Tribunal is prepared to accept that some of the work of accountants may involve international aspects. Having regard to the ANZSCO description of the occupation, international aspects of the occupation are very limited, at best. The applicant’s description of his role of an accountant for international clients or clients with no English skills is, in the Tribunal’s view, too limited and does not reflect the occupation as a whole. The Tribunal is mindful that the applicant had nominated the occupation of an accountant and not some specific and limited specialisation within that occupation.
ANZSCO provides the following description of the nominated occupation.
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:
a.assisting in formulating budgetary and accounting policies
b.preparing financial statements for presentation to boards of directors, management, shareholders, and governing and statutory bodies
c.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
d.examining operating costs and organisations' income and expenditure
e.providing assurance about the accuracy of information contained in financial reports and their compliance with statutory requirements
f.providing financial and taxation advice on business structures, plans and operations
g.preparing taxation returns for individuals and organisations
h.liaising with financial institutions and brokers to establish funds management arrangements
i.introducing and maintaining accounting systems, and advising on the selection and application of computer-based accounting systems
j.maintaining internal control systems
k.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.
The Tribunal does not consider that the work of an accountant involves any translating or interpreting. These are not tasks that are normally performed by accountants.
The applicant has emphasised the international aspect of the work of accountants and his ability to work with clients from a different background. However, as the court confirmed in Walia v MIBP [2015] FCCA 1949, consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation, not one aspect of the occupation which the applicant has selected. The Tribunal is not satisfied that translating and interpreting skills form part of the whole of the nominated skilled occupation.
The applicant states that having translating and interpreting qualifications makes him more competitive and improves his skills and his employment options. The applicant states that many accounting firms require accountants to speak another language, particularly the international students. The Tribunal does not accept that knowledge of another language, let alone qualifications in translating and interpreting, is a prerequisite for working as an accountant. The Tribunal is prepared to accept that the applicant believes he would be more competitive and have better job prospects by having the qualifications that he holds but, as noted above, the Tribunal is of the view that this limits the occupation to certain aspects and does not reflect the occupation as a whole.
The applicant refers to an example from PAM where the Hospitality Management qualifications are said to be closely related to the occupation of a cook. The applicant states that being useful to the occupation establishes a close relationship with the occupation. The Tribunal does not accept that do be the case. That is, the fact that the applicant may utilise translating and interpreting skills in some aspects of his work as an accountant goes no further than establishing, at best, the usefulness of the translating and interpreting qualifications to the occupation. However, the legislation requires something more. It needs to be more than complementary or useful. It needs to be closely related. While the term ‘closely related’ is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be ‘closely related’ to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient for the Tribunal to consider whether the qualification is useful, complements or has a broader relevance to the occupation.
The applicant told the Tribunal that after he completed his degree, he applied for the Student visa to study translating and interpreting and he was granted the Student visa and that means that the Department was satisfied that there was close relationship between the qualifications. The representative submits that the Student visa application would have involved an assessment of whether the applicant was a genuine temporary entrant and the delegate would have found that the translating and interpreting courses were relevant to the commerce degree. The Tribunal does not accept that argument. The close relationship is not a requirement for the grant of the Student visa or for the GTE assessment. Whether or not the applicant is a genuine temporary entrant for the purpose of a Student visa does not require an assessment of the close relationship between the proposed courses and the occupation the applicant may nominate in a future visa application. Thus, the fact that the applicant was granted the Student visa does not establish the close relationship between the applicant’s qualifications and the nominated occupation.
The Tribunal is not satisfied that the translating and interpreting skills the applicant acquired in his Diploma and Advanced Diploma form any meaningful part of the skills that are associated with carrying on the occupation of an accountant.
Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Interpreting and Advanced Diploma of Translating are closely related to the nominated occupation of an accountant. The Tribunal is not satisfied that each of the qualifications used to satisfy the Australian study requirement is closely related to the nominated occupation. The Tribunal is not satisfied the applicant meets cl.485.222.
Conclusion
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.
Kira Raif
Senior Member