Angrej Singh (Migration)
[2022] AATA 3147
•26 August 2022
Angrej Singh (Migration) [2022] AATA 3147 (26 August 2022)
Corrigendum
DIVISION:Migration & Refugee Division
APPLICANT: Mr Angrej Singh Angrej Singh
REPRESENTATIVE: Mr Derrick Peters (MARN: 1175659)
CASE NUMBER: 2118590
HOME AFFAIRS REFERENCE(S): BCC2017/3125082
MEMBER:Wan Shum
DATE OF DECISION: 26 August 2022
DATE CORRIGENDUM
SIGNED:16 September 2022
PLACE OF DECISION: Sydney
AMENDMENT: The following corrections are made to the decision:
- Paragraph 7 should be amended so that it becomes “For the following reasons the Tribunal has concluded that the matter should be affirmed”.
Wan Shum
MemberDECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Angrej Singh Angrej Singh
REPRESENTATIVE: Mr Derrick Peters (MARN: 1175659)
CASE NUMBER: 2118590
HOME AFFAIRS REFERENCE(S): BCC2017/3125082
MEMBER:Wan Shum
DATE:26 August 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 26 August 2022 at 11:52amCATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Federal Circuit and Family Court remittal – Australian study requirement satisfied within 6 months before application made – qualification closely related to nominated occupation – qualification in leadership and management and occupation of chef – comparison of units of study with ANZSCO description and skills assessment requirements – assessment of whole of qualification and whole of occupation required – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F, Schedule 2, cls 485.221, 485.222CASES
Seema v MIAC [2012] FCA 257
Singh v MICSMMA [2021] FedCFamC2G 208
Talha v MIBP [2015] FCAFC 115STATEMENT 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 18 October 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 29 August 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.
The delegate refused to grant the visa finding that the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate did not consider that the Diploma of Leadership and Management was closely related to his nominated occupation of Chef (ANZSCO Code: 351311).
The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.
On 5 August 2020, the Tribunal, differently constituted, decided to affirm the decision of the delegate. The applicant then applied to the Federal Circuit Court in relation to that decision and the Court found that the Tribunal had failed to discharge its statutory review obligation under s 348 of the Act by adopting an unduly narrow approach to its task and the matter was remitted to the Tribunal for reconsideration according to law.
The applicant appeared before the Tribunal on 12 July 2022 by videoconference using MS Teams to give evidence and present arguments. The applicant had appointed a new representative on this occasion who was also present by videoconference from a different location.
For the following reasons, the Tribunal has concluded that the matter should be affirmed/remitted for reconsideration.
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 cl 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 before 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 the second of those requirements.
Is the qualification ‘closely related’ to the nominated occupation?
In this case, the applicant nominated the occupation of Chef (ANZSCO Code: 351311) which is a skilled occupation specified in IMMI 18/051.
The applicant provided the following details of studies undertaken in Australia on the application form, being:
·Certificate III in Commercial Cookery at Empyrean Education Institute from 29 September 2014 to 14 October 2015;
·Certificate IV in Commercial Cookery at Empyrean Education Institute from 29 September 2014 to 25 March 2016;
·Diploma of Hospitality at Empyrean Education Institute from 28 April 2016 to 1 September 2016; and
·Diploma of Leadership and Management at Keystone College from 28 August 2017 to 10 February 2019.
The Diploma of Leadership and Management course is registered for a period of 52 weeks on CRICOS, as is the Diploma of Hospitality while the Certificate III and IV in Commercial Cookery appear to have been packaged together for 80 weeks, the courses are registered for 184 weeks which is more than 2 academic years as defined. The study for these qualifications was undertaken for more than 16 months and all courses were delivered in English. The Tribunal finds that the Certificate III and Certificate IV and Diploma of Hospitality and Diploma of Leadership and Management meet the Australian study requirement as defined in reg 1.15F.
According to the academic transcripts, the applicant undertook the following units in the Diploma of Leadership and Management:
13. BSBWRKSlO
14. Manage employee relations
15. C
16. BSBLDR501
17. Develop and use emotional intelligence
18. C
19. BSBMGT517
20. Manage operational plan
21. C
22. BSBWHS501
23. Ensure a safe Workplace
24. C
25. BSBLDR502
26. Lead and manage effective workplace relationships
27. C
28. BSBMGT617
29. Develop and Implement a Business Plan
30. C
31. BSBWOR502
32. Lead and manage team effectiveness
33. C
34. BSBCUS501
35. Manage Quality Customer Service
36. C
37. BSBMGT502
38. Manage people performance
39. C
40. BSBWOR501
41. Manage personal work priorities and professional development
42. C
43. BSBPMG522
44. Undertake project work
45. C
46. BSBMGT516
47. Facilitate continuous improvement
48. C
In addressing whether the study was closely related to the occupation of chef, the applicant had provided a statement to the Department where he identified subjects studied in the Diploma of Leadership and Management and explained the relevance to the nominated occupation. In that statement he identified the units which he considered were relevant to selected duties. A summary follows.
The units ‘Manage operational plan’, ‘Facilitate continuous improvement’, ‘Develop and Implement a Business Plan’, ‘Manage quality customer service’ and ‘Ensure a safe workplace’ were identified as being relevant to the duties of planning and organising preparation and cooking of food for dining and catering establishments; preparing and cooking food; explaining and enforcing hygiene regulations. The relevance is stated as: “From these subjects, I have learnt the entire process but not limited to planning, organising, executing and taking feedback on the tasks that I take up. These learning's help me to plan dishes, organise preparation and cooking of food, managing wastes in an efficient manner. Also, these subjects improvise skillset to formulate hygiene regulations implement it and monitor on continuous basis so that hygiene in the kitchen is maintained as per standards.” Other then restating the words in the duties, it is not apparent on the evidence how the subjects relate to planning dishes or organising the preparation and cooking of food.
The units ‘Manage operational plan’ and ‘undertake project work’ were said to be relevant to the task of ‘planning menus, estimating food and labour costs, and ordering food supplies’ with the explanation being that: Planning menu requires skillset to estimate cost of a particular dish in the menu card, quantity of raw material required in preparation of food and also calculation of labour hours with cost. This requires specialised skill especially in case of catering orders received. The given subjects improve the skillset to learn and understand such calculations and introduces with different ways to reduce overall costing: Also, preparing schedules for ordering, maintaining raw materials on timely basis require management skills which are polished through the given subjects. However, on the evidence presented, the names of the units by themselves do not reflect that the content was about estimation of costs or preparation of schedules or maintaining raw materials. Nor is it apparent on the evidence presented that the task of ‘planning menus, estimating food and labour costs, and ordering food supplies’ is properly described as a form of ‘project work’; rather, it appears to be a core duty and responsibility of the occupation.
The units ‘Manage Quality Customer Service’, ‘Manage People Performance’ and ‘Lead and Manage Effective Workplace Relations’ was said to be relevant to the tasks of: ‘Monitoring quality of dishes at all stages of preparation and presentation’; ‘discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff’ and ‘Select and train staff’. The claimed relevance was: “[t]hese given subjects introduces with managing of staff, training them, recruiting new staff, personnel management, handling organisational behaviour, supervising the reportees and reporting adversities to the upper level management/ owner of establishment and resolving issues.” There is potentially relevance of some of these units to some of the tasks involving staff.
Prior to the hearing on remittal, a submission was received which sought to explain the relevance of the applicant’s studies to the occupation of Chef.
The submissions made reference to the FCC judgment which remitted the matter back to the Tribunal, and in particular to [73]-[74] and [87] stating that “the contention here remains that if the Diploma of Leadership & Management is found to be "closely related" to the other courses (Cert Ill, Cert IV and Diploma of Hospitality Management); in the context of the tasks of a Chef, only then it would be appropriate to assess if the Australian study requirement per 1.15F of the Regulations has been met, which in the case in point, it would be.” In the Tribunal’s reading of the judgment, the Court remitted the matter back for reconsideration because the Tribunal, differently constituted, did not expressly refer to all of the groups under which the nominated occupation belongs so in this manner, adopted an “unduly narrow and legally erroneous approach”.
The submissions then appear to focus on establishing how the Diploma of Leadership & Management is ‘closely related’ to the other courses completed by the applicant. This does not appear to reflect the approach of the Courts in these matters. It is not a close relationship between the qualifications that needs to be established, but a close relationship between each qualification and the nominated occupation. The submissions are that it is necessary “to establish the co-relation of the Diploma of Leadership & Management to the previously completed courses” and set out the following subheadings: Understanding ANZSCO; Looking at the hierarchy of Chef and their duties - in practice; The units of competency used in assessing the skills of a Chef by Trade Recognition Australia (TRA); A contemporary Job Description from an employer outlining the duties of a Chef; Example of a decision of the Department of Home Affair in an identical scenario.
In summary, it was submitted that focusing only on the tasks in isolation can lead to erroneous interpretations and it is necessary to consider the skillset required. It was submitted that it was necessary to closely examine the skills (competencies) required for the occupation of a Chef and the competencies covered under the courses and that it “is important to determine the competencies from other sources - to achieve a "broad" assessment of the occupation under ANZSCO. The representative attached a copy of the judgment of TaIha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) and an extract of relevant PAM3 provisions - study and nominated occupation must be closely related (although notably the acceptable combinations on the version in LEGEND has an additional dot point which is missing: “the applicant nominates Chef as their skilled occupation and has completed a Certificate III in commercial cookery and a Diploma of Hospitality Management.”)
It was submitted that the description under ANZSCO of Chef if “considered in isolation, can never provide a clear picture of the skills required to undertake the tasks” and that “skill level 2 occupations require AQF Associate Degree, Advanced Diploma or Diploma to undertake the tasks associated with the occupation”. The submissions then refer to guidelines issued by VETASSESS, the assessing authority for the occupation of Chef, where it states that the minimum qualification required for a positive skills assessment of a Chef is a Certificate IV in Commercial Cookery (including the units covered under Certificate Ill of Cookery or in addition to a Certificate Ill in Cookery). It was submitted that the VETASSESS and ANZSCO requirements is that a Chef would hold a Certificate IV in Cookery and a Diploma, and the representative identified that a Diploma of Hospitality Management is the most relevant diploma, and that these qualifications “meet the skillset requirements of a Chef”.
The submissions then list some of the competencies covered from the applicant’s academc records for the qualifications of Certificate IV in Cookery and Diploma of Hospitality, and states that “it can be easily gleaned that the skillset required for the occupation of a Chef has a considerable "chunk" of management and leadership skills”:
·Lead and manage people
·Coach others in job skills
·Manage diversity in the workplace
·Enhance the customer service experience
·Manage conflict
·Manage finance and budget
·Monitor work operations
·Implement and monitor work health safety practices
·Roster staff
·Manage operation plan
·Prepare and monitor budgets
·Research and comply regulatory requirements
·Establish and conduct business relationships
·Plan in-house events or functions
A list of the units under the Diploma of Leadership and Management course were set out:
·Manage employee relations
·Develop and use emotional intelligence
·Manage operational plan
·Lead and manage effective workplace relationships
·Develop and implement a business plan
·Lead and manage team effectiveness
·Manage quality customer service
·Manage people performance
·Manage personal work priorities and professional development
·Undertake project work
·Facilitate continuous improvement
It was submitted that it would “be hard not to conclude that the Diploma of Leadership and Management course is a value-add to the former mandatory courses, and its contents are relevant to the tasks of a Chef. As such, the courses are indeed "closely related".”
However, whether or not the qualifications identified in the submissions as being part of the skillset required of a Chef are closely related to the Diploma of Leadership and Management qualification is not the relevant question for the Tribunal. The Tribunal needs to assess whether the whole of the Diploma of Leadership and Management qualification completed by the applicant is closely related to the whole of the occupation nominated by the applicant.
The submissions then refer to a webpage which describes the hierarchy of Chef and their duties in practice as a relevant consideration for the skillset required. It was submitted that the descriptions fit the title of a "Kitchen Manager" and that being the manager (of the whole kitchen or a discrete section of the kitchen) - leadership and management skills form an integral part of a Chef's role at all levels. Having reviewed the information[1], the titles from Chef de Cuisine through to Apprentice/Trainee Chefs and Pastry Chefs, the Tribunal notes that not all levels involve management such as ‘Commis Chef’, being one of the specialisations listed in ANZSCO, which the website describes as “junior staff who do most of the work”. In addition, there is a caveat that the “above listed chef hierarchy will not apply to all kitchens. As you can imagine a kitchen with only 3 staff has no need for a Chef de cuisine, an Executive Chef and a Senior Sous Chef”. Therefore, the Tribunal does not accept that leadership and management skills form an integral part of the occupation of Chef at all levels.
[1] As at 12 August 2022.
The submissions also refer to the units of competency used in assessing the skills of a Chef by Trade Recognition Australia (TRA) and provide a copy of the ‘TRA- Employment Verification Report -Section 3’ and states that these are “used for the Job Ready Program to prepare Chefs for the real world”. The representative states that the competencies are “majorly concerned with people management (leadership), and operations and resources management skills”.
In addition, a copy of a “contemporary Job Description” from an employer outlining the duties of a Chef was provided, stating that “the expectation of employers is that a Chef is in-charge of the kitchen - of [the] people working in the kitchen, its operations and the resources.”
It was submitted that taking into account all the above, “the tasks of a Chef involve a considerable amount of dealing with (leading/managing) people issues, and operational/resources management skills.”
Therefore, it was submitted that “whilst units of competency in the Certs Ill & IV in Cookery and Diploma of Hospitality Management are the minimum requirements for the occupation of a Chef, the units covered under the Diploma of Leadership and Management is a value-add (providing augmented relevant skills). As such, all the courses completed by the applicant should be considered as "closely related" in the context of a Chef's duties outlined in the ANZSCO, and as translated in the real world.”
In conclusion, it was submitted that “[a]ccordingly, if the courses are indeed "closely related", then the applicant meets the Australian study requirement per 1.15F of the Regulations and therefore, for the grant of the sc 485 visa”.
The representative also drew the Tribunal’s attention to a case where another person was granted a Subclass 485 in an “identical scenario”, having also completed Certificates Ill & IV in Cookery and a Diploma of Hospitality between 2013 and 2015 and an Advanced Diploma of Leadership and Management in October 2020. It was acknowledged that the Tribunal is not bound by this decision, but that “the idea of using this example is to establish consistency of decision-making at all levels of the Government.” A copy of the statement which it was claimed was provided to the Department for this person’s visa application regarding study and occupation must be closely related was provided. In the statement it was also claimed that the study entirely consists of skill sets that are directly transferrable to the position of a Chef given that a Chef is a senior/leadership position within a commercial kitchen – as outlined in ANZSCO - 351311 Chef. However, the statement includes reference to outdated PAM3 guidelines, which was: ‘Under policy, the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill set/s underpinning the qualification/s are directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained.’
The Tribunal requested and was provided with additional information regarding this case and was provided with a copy of the visa holder’s qualification and academic records which reflect that the visa holder completed the Advanced Diploma of Leadership and Management at Advanced Technical College in Western Australia. The record of results list 12 units of competency, none of which are the same as those completed by the applicant at Keystone College. It does not appear that the applicant did complete the same study as the visa holder. More importantly, as recognised in the submissions, the Tribunal is not bound to reach the same conclusion on the facts of this case and has focused on the whole of the qualification completed by the applicant against the whole of the occupation of Chef.
When asked how his Diploma of Leadership and Management was closely related to the occupation of Chef, the applicant said there was not much difference between the Diploma of Hospitality and the Leadership and Management courses he took. He told the Tribunal he currently works as a chef at an Indian restaurant in a country town in Western Australia and he needs management skills as he is leading the kitchen. He claims that the Diploma of Leadership and Management helped him to improve his skills and confidence so that he could give instructions and train staff members at the restaurant. He claimed that this was not only in the kitchen, but that the restaurant manager and owners would also come to him to get his insights on what they need to do to increase customers. He was of the view that the study was completely transferable to his earlier study in Commercial Cookery.
However, the Tribunal is required to determine whether the Leadership and Management study is closely related to the occupation and not whether is transferable to other study the applicant completed. The representative reiterated that a chef is a leadership role and said that a Chef plans and organises the operation of the kitchen.
In considering whether this qualification is closely related to the occupation of Chef, the Tribunal is to objectively consider the relationship of the qualifications to the ANZSCO description of the occupation of Chef and not the applicant’s own description of what the occupation entails. Nor is the Tribunal required to consider whether the skills from the qualification are desirable or useful in his current job as a Chef. In undertaking this task, the Tribunal is also not comparing the Diploma of Leadership and Management qualification to the applicant’s previously completed qualifications. Rather, the Tribunal is required to consider the occupation as described in the ANZSCO Code by reference to the whole of the occupation which means it is not limited to only the specific occupation code but must also consider the information under the Unit Group of Chef, Minor Group and Sub-major Group of “Food Trades Workers” and Major Group of “Technicians and Trades Workers” to which this occupation belongs. The whole of the occupation is compared against the whole of the qualifications (Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 208 and Talha v MIBP [2015] FCAFC 115 at [53]).
The Tribunal has proceeded by setting out the whole of the occupation as described in ANZSCO, beginning with the description for the occupation of Chef (ANZSCO Code: 351311), under the Unit Group 3513 to which the occupation belongs:
Plans and organises the preparation and cooking of food in a dining or catering establishment.
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)
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
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 ChefThe information set out in ANZSCO for the Minor Group and Sub-Major Group to which the occupation and Unit Group of Chef belongs is ‘Food Trades Workers’. The information which appears under these headings is the same and appears as follows:
Food Trades Workers bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments.
Indicative Skill Level:
Most occupations in this minor group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2); or
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV, or at least three years of relevant experience (ANZSCO Skill Level 3)
In New Zealand:
NZQF Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2); or
NZQF Level 4 qualification, or at least three years of relevant experience (ANZSCO Skill Level 3); or
NZQF Level 2 or 3 qualification, or at least one year of relevant experience (ANZSCO Skill Level 4)
In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·checking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations
·planning menus, estimating food and labour costs, and ordering food supplies
·monitoring quality of food at all stages of preparation and presentation
·preparing meat for sale and baking bread, cakes and pastries
·preparing food and cooking using ovens, hotplates, grills and similar equipment
·portioning food, placing it in dishes, and adding gravies, sauces and garnishes
Subcategories
3511 Bakers and Pastrycooks
3512 Butchers and Smallgoods Makers
3513 Chefs
3514 Cooks
The relevant Major Group is ‘Technicians and Trades Workers’, which is copied below. However, the tasks in this section appear to the Tribunal to be so broadly stated that only one of the tasks appear to relate to the nominated occupation.
3 Technicians and Trades Workers
Technicians and Trades Workers perform a variety of skilled tasks, applying broad or in-depth technical, trade or industry specific knowledge, often in support of scientific, engineering, building and manufacturing activities.
Indicative Skill Level:
Most occupations in this major group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of experience (ANZSCO Skill Level 2); or
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV or at least three years of relevant experience (ANZSCO Skill Level 3)
AQF Certificate II or III, or at least one year of relevant experience (ANZSCO Skill Level 4)
In New Zealand:
NZQF Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2); or
NZQF Level 4 qualification, or at least three years of relevant experience (ANZSCO Skill Level 3)
In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
·carrying out tests and experiments, and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals
·providing technical support to users of computer hardware and software
·fabricating, repairing and maintaining metal, wood, glass and textile products
·repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment
·constructing, repairing, fitting-out and finishing buildings and other structures
·operating printing and binding equipment
·preparing and cooking food
·shearing, caring for, training and grooming animals, and assisting Veterinarians
·propagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events
·cutting and styling hair
·operating chemical, gas, petroleum and power generation equipment
·providing technical assistance for the production, recording and broadcasting of artistic performances
Subcategories
31 Engineering, ICT and Science Technicians
32 Automotive and Engineering Trades Workers
33 Construction Trades Workers
34 Electrotechnology and Telecommunications Trades Workers
35 Food Trades Workers
36 Skilled Animal, Agricultural and Horticultural Workers
39 Other Technicians and Trades WorkersGiven the broad description under the Major Group, which includes several subcategories, the Tribunal has concentrated on the information appearing under the Sub-Major Group of ‘Food Trades Workers’ and below for the occupation of ‘Chef’.
It was essentially submitted that the occupation and the role of Chef requires leadership and management, and therefore the Diploma of Leadership and Management is closely related to the occupation of Chef. It seems that the submissions appear to rely upon the applicant having already undertaken the qualifications that were deemed necessary for a Chef having regard to the VETASSESS and ANZSCO descriptions, and which were accepted as being closely related to the occupation, ie Certificate III and IV in Commercial Cookery and Diploma of Hospitality, and that the Diploma of Leadership and Management is “a value-add (providing augmented relevant skills)” which appears to mean it adds to the applicant’s skills. But does not specifically address how the whole of the Diploma of Leadership and Management qualification is closely related to the whole of the occupation of Chef. Furthermore, the ANZSCO description for the occupation does not refer to exercising leadership or management skills, but instead talks about planning and organising the preparation of food and cooking (emphasis added). The use of the words ‘planning’ and ‘organising’ here does not in the Tribunal’s view mean that any units of competency which include the word ‘plan’ and/or ‘organise’ is relevant to the occupation. The context in which these activities are undertaken should in the Tribunal’s view relate to food preparation and cooking. It is not apparent on the evidence provided that the units undertaken by the applicant in his Diploma of Leadership and Management study had such a focus. Under the tasks listed in ANZSCO for the occupation and hierarchy under Major Group 3513, there is no specific reference to leadership or management duties; referring to engaging in discussions with management regarding food preparation issues. The representative had compared the Chef as the leader of the kitchen and the occupation of Restaurant Manager in Major Group 1411; restating that the second course “value adds” to his learning in Hospitality. But giving a person additional skills which may be applied in their current or future job is not the relevant question.
While the applicant has submitted his own description of the occupation by reference to his job and various other descriptions from VETASSESS, TRA, the Chef’s Pencil website and a restaurant, as set out above, the nature of the occupation is to be determined by sole reference to the ANZSCO description, rather than some more general understanding of the occupation (Seema v Minister for Immigration and Citizenship [2012] FCA 257 at [44] per Siopis J). While the Tribunal appreciates that the occupation description in ANZSCO was not designed for the purposes of allowing a comparison against specific qualifications, and it may not reflect the applicant’s job description or other descriptions of the occupation of Chef, the Tribunal is required to determine the nature of the occupation by reference to that description. In doing this, it does not appear to the Tribunal that there is any direct reference to leadership and/or management related duties in any of the tasks set out in ANZSCO under the Unit Group (or other hierarchies) to which the nominated occupation belongs.
In the statement given to the Department, the reasons given about the relevance of units of competency relate to the individual tasks set out in ANZSCO for the Chef hierarchies. On the evidence presented, which is the names of the units, the unit ensuring a safe workplace appears to be relevant to one of the tasks under the Minor Group of Food Trades Workers. In addition, the units referring to management of employee relations may be relevant to ‘may select and train staff’, but there are subjects such as ‘undertake project work’, which do not appear to be relevant. The explanations on relevance restate the duty of planning menus, estimating food and labour costs and ordering food supplies and that the subjects ‘improve’ this skillset, but do not explain the content of these units sufficiently to assess the closeness of the study to the task identified. Furthermore, in assessing the relationship between the qualifications of Diploma of Leadership and Management and the applicant’s nominated occupation, the Tribunal has to consider all of the units of these courses undertaken by the applicant. While the Tribunal accepts that certain units appear to have some relevance to the occupation, it does not appear to the Tribunal that the units of ‘Manage operational plan’ ‘Develop and implement a business plan’; ‘Undertake project work’ and ‘Facilitate continuous improvement’ are units which have any relationship to the tasks of a Chef as described in the hierarchy groups in ANZSCO. These are part of the qualification, and the Tribunal needs to consider the whole of the qualification.
Having carefully considered the whole of the occupation by reference to the ANZSCO description of Chef, the Tribunal considers that there is a degree of relevance between certain units of the qualification to the occupation. But it does not accept that the Diploma of Leadership and Management qualification as a whole is closely related to the whole of the nominated skilled occupation of Chef.
Therefore, as each qualification used to satisfy the Australian study requirement is not closely related to the nominated skilled occupation, the applicant does not meet cl 485.222.
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.
Wan Shum
Member
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