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

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 (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 (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 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.

4. The applicant appeared before the Tribunal on 12 May 2020, by telephone hearing, to give evidence and present arguments.

5. 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.

6. 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.

7. The applicant was represented in relation to the review by his registered migration agent and the representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. 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 2014

    b.Certificate III in Commercial Cookery, 3 March 2014 to 27 February 2015

    c.Certificate IV in Commercial Cookery, 2 March 2015 to 14 August 2015

    d.Diploma of Hospitality, 17 August 2015 to 29 January 2016

    e.Advanced Diploma of Hospitality, 14 March 2016 to 11 September 2016

    f.Advanced Diploma of Leadership and Management, 12 September 2016 to 10 September 2017

11. The applicant studies toward the award of an Advanced Diploma of Leadership and Management, included the following subjects:

    a.Manage people performance

    b.Lead and manage organisational change

    c.Manage finances

    d.Manage innovation and continuous improvement

    e.Develop, implement and maintain WHS management systems

    f.Develop workplace policy and procedures for sustainability

    g.Develop and implement a business plan

    h.Develop organisational marketing objectives

    i.Develop a marketing plan

    j.Develop and implement strategic plans

    k.Provide leadership across the organisation

12. The applicant provided evidence to the Tribunal that he has been assessed successfully for the occupation by Trade Recognition Australia.

13. 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.

14. 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.

15. 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”.

16. The representative submitted that he had written a submission regarding the relevance of the course of study and was surprised at the refusal. He stated that this one was refused and that the visa had not been previously refused with this combination of courses.

17. The representative stated that the applicant had not responded with the relevant information when requested by the Department.

    Does the applicant meet the Australian study requirement?

18. 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.

19. ‘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, the applicant requires the completion of a course(s) registered under the Education Services for Overseas Students Act 2000 (IMMI 09/040).

20. The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Chef - ANZSCO: 351311, would in the Tribunal’s view, include the completion of:

    a.Certificate III in Commercial Cookery, 3 March 2014 to 27 February 2015

    b.Certificate IV in Commercial Cookery, 2 March 2015 to 14 August 2015

    c.Diploma of Hospitality, 17 August 2015 to 29 January 2016

    d.Advanced Diploma of Hospitality, 14 March 2016 to 11 September 2016

21. The Tribunal finds that these courses were completed almost 14 months prior to application and certainly not within six months of application.

22. On this basis, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.

23. Accordingly, the Tribunal is not satisfied, subject to consideration of the ‘closely related’ status of the applicant’s completion of an Advanced Diploma of Leadership and Management, 14 March 2016 to 11 September 2016, that the applicant has met cl.485.221.

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

24. 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).

25. In this case, the applicant nominated the occupation of Chef – ANZSCO: 351311, which is a skilled occupation specified in the Legislated Instrument - Skilled visas (IMMI 16/059 Schedule 1, which commenced on 1 July 2016).

26. The evidence provided by the applicant demonstrated that the primary qualification, as a Chef, was undertaken by the applicant’s completion of the following qualifications:

    a.Certificate III in Commercial Cookery, 3 March 2014 to 27 February 2015

    b.Certificate IV in Commercial Cookery, 2 March 2015 to 14 August 2015

    c.Diploma of Hospitality, 17 August 2015 to 29 January 2016

    d.Advanced Diploma of Hospitality, 14 March 2016 to 11 September 2016

27. Further, the Tribunal does not accept that the completion of an Advanced Diploma of Leadership and Management, 12 September 2016 to 10 September 2017, is a course of study directly related or ‘closely related’ to the occupation of Chef – ANZSCO: 351311 given that none of the subjects of study, as confirmed in evidence (with the exception of - Develop, implement and maintain WHS management systems), had any practical application to the trade skill, identified in the occupation descriptor, as follows:

    UNIT GROUP 3513 CHEFS

    
    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

    Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

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

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    §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

    
    Occupation:

    351311 Chef

    
    351311 CHEF

    
    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

    Specialisations:

    Chef de Partie
    Commis Chef
    Demi Chef
    Second Chef
    Sous Chef

28. The Tribunal finds that the subject matter of the Advanced Diploma of Leadership and Management (over one year of study prior to the applicant’s application for the occupation of Chef), have no specific trade relationship to the occupation of Chef.

29. Further, the Tribunal finds that the course studied is more closely related to the professional occupation of management, which is a discrete occupation within itself (at a professional level) and is not the ‘trade occupation’ that has been applied for in the applicant’s application. In this regard, the Advanced Diploma of Leadership and Management course of study is more akin to the occupation prescribed for an ‘Other Specialist Manager - ANZSCO: 139999’.

30. Whilst the Tribunal acknowledges that the knowledge gained would be useful to the occupation of Chef, in a future career context, the applicant does not require such academic training to undertake the occupation of  Chef (ANZSCO Code: 351311, as the core activities relating to providing direction regarding the allocation of resources, production of menus, rosters and the like, is already contemplated within the core modules provided through the Certificate in Commercial Cookery and the Diploma of Hospitality. As such, the Tribunal does not accept that extended study at the Advanced Diploma level in leadership and management related disciplines is required to exercise the basic trade skills, as a Chef. As such, the Tribunal considers the course to be discretionary and related to future opportunities, as confirmed in evidence,  rather than necessary to perform in the occupation.

31. The evidence provided by the applicant demonstrated that the primary qualification, as a Chef, was undertaken by the applicant prior to further non-related studies undertaken post September 2016.

32. The Tribunal, in determining whether the last course undertaken by the applicant is ‘closely related’ to the occupation of Chef: ANZSCO Code 351311, is not satisfied, in the broader context of the trade occupation, that the study of an Advanced Diploma of Leadership and Management is required. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:

    “[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
    
    (Emphasis added).

    The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”

33. Further, the Tribunal is guided by Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014) - “That a diploma results in conferring skills, all or a substantial part of which form part of the skill set of the nominated occupation, is sufficient to establish a close relation between the diploma and the nominated skilled occupation. [paragraph 37,39]” In this context, this principle applies in relation to the occupation of Chef and the corresponding ANZSCO descriptor, as the Tribunal does not accept that an Advanced Diploma of Leadership and Management forms all or a substantial part  of the skill set of the occupation of Chef.

34. The Tribunal finds that the applicant’s study for the specified qualification has not satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application, as the last related study for the occupation of Chef: ANZSCO Code 351311 was completed in September 2016.

35. As the applicant’s recent qualifications are not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

36. 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

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

    Warren Stooke AM
    Member