Angrej Singh (Migration)

[2020] AATA 6163

Angrej Singh (Migration) [2020] AATA 6163 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Angrej Singh Angrej Singh

CASE NUMBER:  1725703

HOME AFFAIRS REFERENCE(S):          BCC2017/3125082

MEMBER:Kira Raif

DATE:5 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 05 August 2020 at 12:14pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification closely related to nominated occupation – qualification in leadership and management and occupation of chef – overlap between courses – leadership and management course more in-depth than hospitality course – tasks of occupation and ANZSCO description – qualification useful but requirement for close relationship applies to occupation as a whole – decision under review affirmed

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

CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [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 18 October 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 is a national of India, born in August 1993. He applied for the visa on 29 August 2017. 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 qualifications used to meet the Australian study requirement were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 3 August 2020 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Visa Class VC contains Subclass 485. 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 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.

6. 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.

7. ‘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.

   Does the applicant meet the Australian study requirement?

8. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

9. The applicant stated when making the application that he completed the following study in Australia.

   09/14 – 10/15                  Certificate III in Commercial Cookery

   09/14 – 03/16                  Certificate IV in Commercial Cookery

   04/16 – 09/16                  Diploma of Hospitality

   10/16 – 08/17                  Diploma in Leadership and Management.

10. The applicant had nominated the occupation of a Chef (ANZSCO 351311) in his application.

11. The application for the visa was made in August 2017 and the Tribunal finds that the only qualification the applicant completed in the 6 months before the application was made is the Diploma in Leadership and Management. The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement.

12. The applicant had nominated the occupation of a Chef in his application. The Tribunal must be satisfied that the Diploma in Leadership and Management is closely related to the occupation of a Chef.

13. In oral evidence the applicant told the Tribunal that he had completed a Diploma of Hospitality before and decided to do a Diploma in Leadership and Management because the two qualifications were very similar and many of the units overlapped but the Diploma of Management provided a more in-depth learning. The applicant said that the Diploma of Hospitality was a very short course, so he decided to do a longer course to learn management and other skills which he has been using in the hospitality industry. The Tribunal considers the applicant’s submission misconceived. The close relationship must exist between the nominated occupation and the qualification and not between the qualification and another qualification which the applicant has completed. The fact that the applicant found the two Diplomas to be similar or complementary does not establish a close relationship between his qualifications and the nominated occupation.

14. In his written submission to the delegate, the applicant states, essentially, that as a chef, he is responsible for the running of the kitchen and manages staff, finances and other aspects of kitchen operations. The applicant claims that a chef is a ‘leader of a restaurant’ and not only works in a kitchen. If he is not well educated, he cannot run a restaurant and cannot transfer skills to his employees. The representative also submits that chefs do not only work in the kitchen but also need to manage ‘the front and the back’. The representative submits that chefs must be able to demonstrate how they manage the restaurant and manage complaints and chefs must have extensive skills and not only relevant to cooking. The Tribunal is of the view, however, that it is necessary to consider the objective standard for the occupation and not what the applicant has done in his job or what he believes chefs do as part of their normal employment.

15. ANZSCO provides the following in relation to the nominated occupation of a chef.

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

    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:

    oplanning menus, estimating food and labour costs, and ordering food supplies

    omonitoring quality of dishes at all stages of preparation and presentation

    odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    odemonstrating techniques and advising on cooking procedures

    opreparing and cooking food

    oexplaining and enforcing hygiene regulations

    omay select and train staff

    omay freeze and preserve foods

    
    Occupation:

    351311 Chef

16. In the Tribunal’s view, the occupation of a chef does not have leadership and management responsibilities. The Tribunal acknowledges that selection and training of staff is part of the occupation. However, when considering the tasks specified in ANZSCO as a whole, any management of staff, even if that was a task (as opposed to selection and training) does not appear to be a significant part of the occupation. ANZSCO suggests selection and training of staff is only one aspect of the role and it is not apparent that this aspect has any management or leadership responsibilities. Thus, the Tribunal is of the view that, at best, the Diploma of Leadership and Management may be useful to one aspect of the occupation of a chef. However, the closely related requirement must apply to the occupation as a whole and not merely one of its aspects. When considering the tasks set out in ANZSCO, the Tribunal does not consider that management or leadership is in any way related, let alone closely related, to other aspects of the occupation of a chef and the occupation as a whole.

17. In the Tribunal’s view the applicant’s evidence suggests no more than the usefulness of his latest qualification to the nominated occupation. The term ‘closely related’ is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be ‘closely related’ to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient for the Tribunal to consider whether the qualification is useful, complements or has a broader relevance to the occupation.

18. The applicant told het Tribunal that he wants to open his own restaurant and he needed to develop his skills to interact with customers and develop his skills. He decided to do a longer course because he did not learn much in his earlier courses. The Tribunal acknowledges that the applicant may wish to pursue his own business in the future. However, the assessment required by the legislation relates to the occupation nominated by the applicant – that of motor Chef – and not an occupation in which the applicant may wish to engage in the future. As Smith FM stated in Pasula at [23]:

    … the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law.

19. In the Tribunal’s view, if the applicant decides to run his own business in the future, his occupation may be that of a restaurant owner or manager and not that of a chef.

20. The applicant told the Tribunal that he has a qualified chef and has been working in the hospitality industry in Australia. He has also been able to obtain the skills assessment and the TRA has not raised any issues with his Diploma. The Tribunal accepts that the applicant has been able to obtain a skills assessment and a job but does not consider that the applicant’s employment or his ability to obtain the skills assessment establish a close relationship between the nominated occupation and the applicant’s qualifications. The Tribunal also notes that it is not the role of the TRA to ascertain the close relationship between the applicant’s study and nominated occupation.

21. Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Business is closely related to the nominated occupation of a chef. The Tribunal is not satisfied that each of the qualifications used to satisfy the Australian study requirement is closely related to the nominated occupation. The Tribunal is not satisfied the applicant meets cl.485.222.

    Conclusion

22. 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

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

    Kira Raif
    Senior Member