Agustin (Migration) - [2020] AATA 3023

Agustin (Migration) [2020] AATA 3023 (19 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Larry Andrew Agustin
CASE NUMBER:  1730734
HOME AFFAIRS REFERENCE(S):          BCC2017/4169809
MEMBER:Warren Stooke AM
DATE:19 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 19 May 2020 at 6:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Chef – Australian study requirement – study closely related to the nominated skilled occupation – Advanced Diploma of Leadership and Management course – course completed in the previous 6 months – qualification not required to practise occupation – practical application to the trade skill – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15, 2.26
CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Tobon v Minister for Immigration & Anor (2014) FCCA 2208
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 30 November 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 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 (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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the course of study immediately before the application for the 485 visa was not closely related to the occupation of Chef – ANZSCO Code: 351311.
The applicant appeared before the Tribunal on 12 May 2020, by telephone hearing, to give evidence and present arguments.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 30 November 2017 and that he understood the content of the decision. In this regard, the applicant stated that the delegate refused the application because it was not relevantly related to the nominated occupation.
The applicant confirmed to the Tribunal that he had provided the Tribunal with a copy of the delegate’s decision to the Tribunal with his application.
The applicant was represented in relation to the review by his registered migration agent and the representative attended the Tribunal hearing.
For the following reasons, the Tribunal…

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.

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Details

AGLC: Agustin (Migration) [2020] AATA 3023
Case: [2020] AATA 3023
Decision Date: 19 May 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Skilled (Provisional) (Class VC) visa, specifically a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream. The applicant nominated the occupation of Chef. The core dispute revolved around whether the applicant met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations, which pertain to satisfying the 'Australian study requirement' within the preceding six months and ensuring that any qualifications used to meet this requirement are closely related to the nominated skilled occupation.

The Tribunal was required to determine if the applicant's completed courses of study, particularly an Advanced Diploma of Leadership and Management, were sufficiently closely related to the occupation of Chef. The applicant had completed a series of qualifications, including Certificates III and IV in Commercial Cookery and Diplomas and Advanced Diplomas in Hospitality, alongside the Advanced Diploma of Leadership and Management. The applicant had also been assessed successfully for the occupation of Chef by Trade Recognition Australia and was employed as a chef.

The Tribunal reasoned that while the applicant had completed numerous relevant hospitality and management courses, the Advanced Diploma of Leadership and Management, despite its management-focused subjects, was not considered closely related to the practical trade skills required for the occupation of Chef. The applicant's explanation that the course provided a foundation for future career growth and management roles within the kitchen was not deemed sufficient to establish the required close relationship. The Tribunal concluded that the qualification was not a prerequisite for practising the trade skill of a chef and lacked the direct practical application to the trade itself. Consequently, the applicant did not satisfy the criteria for the grant of a Subclass 485 visa.

The Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) 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 the 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 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. The applicant is a 31 year old from the Philippines, who provided evidence that he had completed the following courses of study prior to making application for a 485 visa:a.Certificate IV in Frontline Management - completed 12 February 2014b.Certificate III in Commercial Cookery, 3 March 2014 to 27 February 2015c.Certificate IV in Commercial Cookery, 2 March 2015 to 14 August 2015d.Diploma of Hospitality, 17 August 2015 to 29 January 2016e.Advanced Diploma of Hospitality, 14 March 2016 to 11 September 2016f.Advanced Diploma of Leadership and Management, 12 September 2016 to 10 September 2017 The applicant studies toward the award of an Advanced Diploma of Leadership and Management, included the following subjects: a.Manage people performanceb.Lead and manage organisational changec.Manage financesd.Manage innovation and continuous improvemente.Develop, implement and maintain WHS management systemsf.Develop workplace policy and procedures for sustainabilityg.Develop and implement a business planh.Develop organisational marketing objectivesi.Develop a marketing planj.Develop and implement strategic plansk.Provide leadership across the organisation The applicant provided evidence to the Tribunal that he has been assessed successfully for the occupation by Trade Recognition Australia. The applicant advised the Tribunal that he is currently working as a chef at the Novatel South Wharf, where he has been employed since March 2018 and that he started as a full-time employee one year ago. He stated that he originally worked as a casual employee for 20 hours per week and that he sought to move to regional status. The applicant provided evidence that he is paid $30.00 per hour on a week day; $34.00 per hour on Saturday’s and $37.40 per hour on Sunday’s. The Tribunal asked the applicant to explain how his Advanced Diploma of Leadership and Management (12 September 2016 to 10 September 2017) is closely related to the occupation of chef (ANZSCO Code: 351311) and he responded:a.“Management of people performance applies to every part of being a chef - gives more knowledge”;b.“If you want to grow in the career then need something for the future”;c.“Need to know how to teach people in the kitchen”;d.“Benefits others if I learn and then I can teach”;e.“Got 2 to 3 promotions from cook to chef”;f.“Every chef with this has foundation for the future”;g.“Happy that I have finished these courses and fulfil future”.

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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