Agustin (Migration)

[2022] AATA 1808

Agustin (Migration) [2022] AATA 1808 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Larry Andrew Agustin

REPRESENTATIVE:  Mr Imran Nawaz Warraich

CASE NUMBER:  2105385

HOME AFFAIRS REFERENCE(S):          BCC2017/4169809

MEMBER:Mary Sheargold

DATE:24 May 2022

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 24 May 2022 at 2:49pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Chef – applicant satisfied the Australian study requirement in the six months immediately before the date of the visa application – qualification is closely related to Mr Agustin’s nominated skilled occupation – decision under review remitted

LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.15, 1.03, 2.26, Schedule 2, cls 485.221, 485.222

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 November 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 November 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 (Cth) (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 Mr Agustin did not satisfy cl 485.222 of Schedule 2 to the Regulations because his Advanced Diploma of Leadership and Management was found not to be closely related to his nominated skilled occupation of Chef, ANZSCO 351311.

4. This application was first heard by the Tribunal (differently constituted) in May 2020.  The Tribunal in that instance affirmed the Department’s decision on the basis that none of the subjects studied in Mr Agustin’s Advanced Diploma of Leadership and Management had any practical application to the trade skill identified in the ANZSCO descriptor for the occupation of Chef.  In April 2021, Judge Riethmuller issued orders, made with the consent of the Minister, that the Tribunal reconsider the application according to law.

5. Mr Agustin appeared before the Tribunal by telephone on 23 May 2022 to give evidence and present arguments.  He is represented in relation to the review, but the representative elected not to attend the hearing.

6. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Mr Agustin 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 clauses require that Mr Agustin has satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221), and 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.

8. Mr Agustin’s representative provided detailed written submissions to the Tribunal ahead of the hearing in May 2020, and I have relied on those submissions, as well as Mr Agustin’s oral evidence at the hearing, in reaching my findings set out below.

   Does the applicant meet the Australian study requirement?

9. Under reg 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.

10. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see regs 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 (reg 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: LIN 19/085.

11. Mr Agustin came to Australia having purchased a suite of courses of study through the Imperial College of Australia.  He commenced his studies with a Certificate III in Commercial Cookery in March 2014, then completed a Certificate IV in Commercial Cookery, a Diploma of Hospitality, and an Advanced Diploma of Hospitality.  He completed these courses consecutively and was awarded credit transfers for the majority of subjects from the Certificate IV onwards.  The Advanced Diploma of Leadership and Management was taught immediately after the other courses, and was completed 12 months later, in September 2017.

12. I have reviewed the academic transcripts and completion statements for each course that Mr Agustin has provided to the Tribunal.  I have reviewed the Department’s records in relation to Mr Agustin’s visa status and I am satisfied that Mr Agustin held a student visa as he completed each of the 5 courses.  I have reviewed the CRICOS database, and I am satisfied that each of the 5 courses completed was a registered course of study.  Mr Agustin took 12 months to complete his Certificate III in Commercial Cookery and to complete his Advanced Diploma of Leadership and Management, and took 6 months each to complete the other 3 courses, so I am satisfied that they were completed in a total of at least 16 calendar months.  The completion letters provided for each of the courses state that they were taught in English.  The total duration of all of the courses of study is well in excess of 92 weeks.

13. Mr Agustin applied for this visa on 30 November 2017.  He completed the Advanced Diploma of Leadership and Management on 10 September 2017.  He completed the Advanced Diploma of Hospitality on 11 September 2016.  Because he must have completed his courses of study in the 6 months immediately before the date of his application, he will have to rely on his Advanced Diploma of Leadership and Management alongside his 4 other qualifications in order to meet the requirement in cl.485.221.

14. Based on all the evidence before me and for the reasons outlined above, I find that Mr Agustin satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, he meets cl 485.221.

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

15. In addition, cl 485.222 requires each qualification used to satisfy the Australian study 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 (regs 1.03 and 1.15I). The relevant instrument for this purpose is IMMI 16/059.

16. In this case, Mr Agustin nominated the occupation of Chef, which is a skilled occupation specified in IMMI 16/059.

17. The words ‘closely related’ in cl.485.222 are not defined in the Regulations or elsewhere in the relevant legislation.  However, the assessment of the term ‘closely related’ has been considered by the Full Court of the Federal Court of Australia in Talha v MIBP [2015] FCAFC 115 (Griffiths, Mortimer and Beach JJ, 25 August 2015), where it was held that the decision maker is entitled to give substantial weight to the ANZSCO description of the nominated occupation.

18. Mr Agustin as nominated the skilled occupation of Chef, ANZSCO 351311.  The ANZSCO dictionary lists the following tasks as relevant to the role of a Chef:

    ·planning menus, estimating food and labour costs, and ordering food supplies

    ·monitoring quality of dishes at all stages of preparation and presentation

    ·discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    ·demonstrating techniques and advising on cooking procedures

    ·preparing and cooking food

    ·explaining and enforcing hygiene regulations

    ·may select and train staff

    ·may freeze and preserve foods

19. I am satisfied that the first 4 qualifications completed by Mr Agustin, in the fields of commercial cookery and hospitality, are closely related to the nominated skilled occupation of Chef.

20. The Advanced Diploma of Leadership and Management presents a different challenge.  On its face, it is arguable that an Advanced Diploma of Leadership and Management is a generic qualification that does not automatically lend itself to a natural connection with the daily tasks of a Chef.  However, I am cognisant that the role of Chef within a commercial kitchen is usually a more senior role and that it generally requires the exercise of leadership and management on a daily basis.

21. I have reviewed the submissions made by Mr Agustin’s representative, demonstrating the connection between the majority of the units studied in Mr Agustin’s Advanced Diploma of Leadership and Management and the tasks expected to be performed by a Chef as according to the ANZSCO descriptor.  Mr Agustin’s Advanced Diploma in Leadership and Management was comprised of the following units of study:

    ·Manage people performance;

    ·Lead and manage organisational change;

    ·Manage finances;

    ·Manage innovation and continuous improvement;

    ·Develop, implement and maintain WHS management systems;

    ·Develop workplace policy and procedures for sustainability;

    ·Manage risk;

    ·Develop and implement a business plan;

    ·Develop organisational marketing objectives;

    ·Develop a marketing plan;

    ·Develop and implement strategic plans; and

    ·Provide leadership across the organisation.

22. Mr Agustin’s representative has highlighted the clear correlation between many of these units and the daily tasks performed by a chef, such as monitoring staff, demonstrating cooking techniques, estimating food and labour costs and ordering stock with the subjects in financial management and people management.

23. At the hearing, I discussed with Mr Agustin the content and context of this course.  Mr Agustin told me that the course was sold to all students who had completed the hospitality qualifications, and that the course content was entirely focused in the hospitality space.  Mr Agustin said he did not realise prior to commencing his study that although the course title was Advanced Diploma of Leadership and Management, each teacher he studied with was a qualified chef.  All the subjects were taught in a hospitality context and with the aim of empowering the students to be better chefs.

24. In my view, an Advanced Diploma of Leadership and Management taught by chefs to up and coming chefs, to enrich their understanding and knowledge of all functions within running a kitchen, not just preparing good food, would be closely related to the nominated skilled occupation of Chef.  My findings may differ if the nominated occupation was the lower-skilled occupation of Cook.  Mr Agustin was able to articulate to me that cooks wait for direction in the kitchen, while chefs know what has to be done and instruct cooks to perform certain functions.  It is clear that Chef is a leadership position within a commercial kitchen.  It is logical that a qualification in management and/or leadership could be closely related to that occupation.  It is beyond doubt, to my mind, that an Advanced Diploma of Leadership and Management taught by chefs to chefs is closely related to the occupation of Chef.

25. Therefore, I am satisfied that this qualification is closely related to Mr Agustin’s nominated skilled occupation.

26. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl 485.222.

27. 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

28. 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.

    Mary Sheargold
    Member