TANTIRITTISAK (Migration)

[2019] AATA 6395

TANTIRITTISAK (Migration) [2019] AATA 6395 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Suphattra TANTIRITTISAK

CASE NUMBER:  1712330

HOME AFFAIRS REFERENCE(S):           BCC2017/1381886

MEMBER:Jade Murphy

DATE:27 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 27 November 2019 at 10:01am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Australian study requirement – Master of Business – specialisation in Marketing – ‘closely related’ to nominated occupation – Internal Auditor – more than half of the subjects were Finance, Economics and Accounting units – VETASSESS skills assessment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221, 485.222

CASES
Talha v Minister for Immigration and Border Protection (2015) FCAFC 115

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 Immigration and Border Protection on 30 May 2017 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 14 April 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. 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 applicant’s Master of Business as used to satisfy the Australian study requirement is closely related to her nominated occupation of Internal Auditor (221214).

4. On 24 November 2019 at 7:45pm, the night before the scheduled hearing, the applicant’s agent told the Tribunal the applicant would no longer be attending the hearing and requested the Tribunal make a decision on the papers.  

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 six 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.

   Does the applicant meet the Australian study requirement?

8. 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.

9. ‘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.

10. As set out in the delegate’s decision, the applicant completed the following qualifications:

    ·Master of Business from Monash University, completed 5 December 2016

    ·Bachelor of Arts from Monash University, completed 14 July 2014.

11. Evidence was provided to the Department confirming the above qualifications and based on that evidence the Tribunal finds the applicant completed a degree (Master of Business) in the six months immediately before the application was made and that it was a registered course with CRICOS code 079669B (as defined: see r.1.03); completed (as defined: see r.1.15F(2)) in a total of at least 16 calendar months; as a result of at least two academic years (as specified) study specifically 104 weeks; for which all instruction was conducted in English; and whilst holding a visa authorising study.

12. As a result, the Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately preceding the date of the visa application.

13. Therefore, the applicant meets cl.485.221.

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

14. In addition, cl.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).

15. In this case, the applicant nominated the occupation of Internal Auditor (ANZSCO 221214), which is a skilled occupation specified in the relevant instrument.

16. As set out in the delegate’s decision, the delegate was not satisfied that the applicant’s Master of Business is closely related to the nominated occupation of Internal Auditor because the applicant’s academic transcript shows the applicant specialised in Marketing. The delegate acknowledged that while some units were closely related, the majority of units undertaken did not, in her opinion, demonstrate the same close relationship. Further, the delegate noted that although a Master of Business may assist the applicant in their future career plan, this did not satisfy the delegate that it was ‘closely related.’

17. On review, the applicant submitted the following:

    ·VETASSESS skills assessment dated 20 January 2017

    ·Advertised position descriptions for Internal Auditors

    ·Police Clearance Certificate dated 10 April 2017

    ·Complete Academic Record from Monash University

    ·Proof of Qualification of Master of Business from Monash University and copy of Degree

    ·Written submission from the applicant’s agent, dated 22 November 2019.

18. The Tribunal has had regard to all the evidence and submissions presented on review, the Departmental file, as well as to the Department’s policy manual in making its decision.

19. The Tribunal does not share the concerns of the delegate as expressed in the primary decision record.

20. The Tribunal considers that regardless of the applicant’s specialisation in Marketing, the subjects undertaken throughout her Master of Business have given her a skill set which clearly underpins the tasks carried out by an Internal Auditor. On the Tribunal’s own assessment of the applicant’s academic transcript and the individual units studied by the applicant, two years of the applicant’s study for which credit was given towards her Master of Business was in the field of Banking and Finance. This is referenced on the academic transcript with the statement ‘Granted 42 credit points from previous Monash Course’ under the Master of Business header. The applicant’s previous course was a Master of Banking and Finance and this included a number of Finance, Economics and Accounting units. The Tribunal does not agree with the delegate’s concern that ‘the majority’ of units were for the applicant’s Marketing specialisation and therefore not closely related. The Tribunal, on a plain reading of the applicant’s academic transcript, includes the applicant’s Banking and Finance units as they were credited towards her Master of Business by the university. The Tribunal finds that more than half of the applicant’s subjects were Finance, Economics and Accounting units, which are clearly closely related to the tasks of an Internal Auditor.

21. Although the Tribunal recognises, as noted by the delegate, that the applicant specialised in Marketing, the Tribunal does not consider that this results in the qualification not being closely related to the nominated occupation of Internal Auditor. For those units which are Marketing subjects, the Tribunal is persuaded by the applicant’s VETASSESS skills assessment which clearly states ‘Field of study in Business and Marketing is highly relevant.’ The Tribunal places significant weight on this skills assessment which has specifically considered the applicant’s Master of Business as ‘highly relevant’ to her nominated occupation of Internal Auditor and has clearly stated that Marketing is also highly relevant. As noted by the applicant’s agent VETASSESS has been appointed by the Department to take on this detailed and specific process of assessing qualifications against ANSZCO occupations for this ‘closely related’ criterion, amongst other things. The Tribunal accepts this submission.

22. In addition, the applicant’s agent has asked the Tribunal to consider that the occupation of Internal Auditor 221214 falls within the group ‘Sub-Major Group 22 business, Human Resource and Marketing Professionals’ and that the Tribunal should not limit itself to the minor linked group in the ANZSCO definition, in line with Talha v Minister for Immigration and Border Protection (2015) FCAFC 115. The Tribunal notes the use of the term Marketing Professionals in the major group under which the occupation Internal Auditor is grouped. The Tribunal places some weight on this however, it is more persuaded by the previous points made.

23. For the reasons outlined above, the Tribunal finds that the applicant’s Master of Business is closely related to her nominated occupation of Internal Auditor.

24. As the applicant’s qualification is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

25. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

26. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations.

    Jade Murphy
    Member