Bani (Migration)

[2021] AATA 5093

Bani (Migration) [2021] AATA 5093 (17 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunil Ram Bani

CASE NUMBER:  1924603

HOME AFFAIRS REFERENCE(S):          BCC2019/1578627

MEMBER:Jade Murphy

DATE:17 December 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 17 December 2021 at 3:45pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Chef – Australian study requirement – courses completed within 6 months before visa application – courses closely related to skilled occupation – intended career progression – 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

Pasula v MIAC [2010] FMCA 219
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 Home Affairs on 19 August 2019 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 29 March 2019. 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 the applicant did not satisfy cl 485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant’s qualification used to satisfy the Australian study requirement, namely a Diploma of Business is closely related to his nominated occupation of Chef (ANZSCO 351311).

4.    The applicant appeared before the Tribunal on 17 December 2021 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 those requirements.

Does the applicant meet the Australian study requirement?

7.    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.

8.    ‘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.

9.    As evidenced by the applicant’s certificates of completion submitted to the Tribunal on review and as confirmed by the applicant in oral submissions at hearing, the Tribunal is satisfied that the applicant has completed the following qualifications:

·Diploma of Business from Barkly International College commenced 17 August 2018 to 30 January 2019;

·Certificate IV in Commercial Cookery from the Boston Institute of Technology commenced 15 October 2017, completed 14 July 2018;

·Advanced Diploma of Hospitality from Brighton Institute of Technology commenced 14 October 2014, completed 1 December 2015;

·Certificate IV in Frontline Management from Brighton Institute of Technology commenced 12 September 2013, completed 12 September 2014; and

·Diploma of Hospitality from the Brighton Institute of Technology together with a Certificate III in Hospitality (Commercial Cookery) from the Brighton Institute of Technology commenced 11 May 2009, completed 05 September 2012

1. Clause 485.221 requires the qualifications to be relied on to satisfy the Australian study requirement be completed within six months immediately before the day the application is made. Together, all courses were completed within six months immediately before the day the application was made as the applicant’s Diploma of Business was completed on 30 January 2019 and the applicant applied for this visa on 29 March 2019.

2. The applicant’s qualifications further satisfy the Australian study requirement as they are registered courses completed at CRICOS registered institutions.

3. The qualifications were completed in a total of at least 16 calendar months and as the result of at least two academic years of study.

4. The completion certificates issued from the education providers further confirm that each qualification was conducted in English.

5. In addition, Departmental checks confirm the applicant held the relevant student visa authorising study at the relevant times.

6. The Tribunal finds that the applicant satisfied the Australian study requirement in the six months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

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

7. In addition, cl 485.222 requires each qualification used to satisfy that 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 Legislative Instrument LIN 19/051.

8. In this case, the applicant nominated the occupation of Chef (ANZSCO 351311) which is a skilled occupation specified in LIN 19/051.

9. As set out in the delegate’s decision, the delegate did not consider that a Diploma of Business was closely related to the nominated occupation of Chef. The delegate looked at the applicant’s academic transcript and found there was no relationship between the units completed and the nominated occupation.

10. The delegate noted the ANZSCO description of Chef (and reproduced that description in their decision) and noted it did not contain any business-related activities. The delegate acknowledged that although a Diploma of Business could be capable of assisting in a future career plan, this was not enough to satisfy the delegate that it was closely related.

11. At hearing, the applicant was asked whether he would like to respond to the delegate’s concerns in this regard.

12. The applicant responded that when he was undertaking his technical training as a Chef, an Executive Chef suggested to him that he undertake further study to obtain a qualification in business. It was suggested that this would assist the applicant in his future career prospects to move up the ranks within a business. The applicant conceded that while working as a Chef, ‘business skills have nothing to do with that’. However, he submitted that he wanted to complete a business qualification to advance his future career goals and future study. The applicant told the Tribunal that he is currently a Sous Chef and that to reach the higher positions within a business such as Executive Chef he believes a business qualification will assist him in this goal. The applicant told the Tribunal that Executive Chefs assist the business owner to price the menu, maintain market competitiveness, cost supplies, monitor staff expenses and have regard to the businesses profit margins. He believes that a Diploma of Business will assist him to do that in the future.

13. The Tribunal told the applicant that it shared the delegate’s concern that although it is noted that a Diploma of Business may be capable of assisting him in his future career progression, that this may not be enough to satisfy the Tribunal that it is closely related to his current duties in his nominated occupation of Chef.

14. The applicant told the Tribunal that he agreed that the work of a Chef is a trade, and it is in the kitchen planning and preparing food and then cooking it for diners. The Tribunal read the ANSZCO definition as set out in the delegate’s decision and the applicant told the Tribunal that he agreed with the definition and that it did not contain any business-related activities. The applicant submitted that these are additional skills that would enable him to demonstrate to an employer that he could be an Executive in the future.

15. The Tribunal acknowledges the applicant’s submissions that he partly undertook the Diploma of Business because he wants to further his career progression. However, it considers that the assessment of whether it is ‘closely related’ must be against the nominated occupation and not against an occupation that the applicant wants to engage in in the future. As Smith FM stated in Pasula v MIAC [2010] FMCA 219 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.

16. While that case considered a different provision, the Tribunal finds that the same reasoning applies in relation to cl.485.222.

17. In the Tribunal’s view, if the applicant decides to pursue an Executive role in a restaurant or dining venue, or runs his own business, this goes further than his nominated occupation of Chef. The Tribunal cannot consider the qualification in relation to the applicant’s future or intended occupations, rather than the nominated occupation which the applicant conceded involves no business-related tasks.

18. The Tribunal considers this a crucial point that carries no favourable weight for the applicant.

19. Based on the above, having considered the evidence and submissions presented, as well as having regard to the ANZSCO definition[1] (albeit a general and flexible approach considering all attached groups and subgroups), the Tribunal is not persuaded that the applicant’s Diploma of Business is closely related to his nominated occupation of Chef.

    [1] As required by Talha v MIBP [2015] FCAFC 115.

20. 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.

21. Based on 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

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

    Jade Murphy
    Member