Frois Rodrigues (Migration) - [2021] AATA 262

Frois Rodrigues (Migration) [2021] AATA 262 (8 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Leticia Frois Rodrigues
CASE NUMBER:  1817466
HOME AFFAIRS REFERENCE(S):          BCC2018/1212572
MEMBER:Denise Connolly
DATE:8 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 8 February 2021 at 4:12pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement within 6 months before application made – last qualification closely related to nominated skilled occupation – ANZSCO description of occupation – qualification in leadership and management complementary but not closely related to occupation as chef – advised by agent that course closely related to occupation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Manik v MIAC [2012] FMCA 149; [2012] FCA 619
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIAC [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1282
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 Home Affairs on 30 May 2018 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 14 March 2018. 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 primary criteria must be satisfied by the applicant.
The delegate refused to grant the visa on the basis the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant’s Advanced Diploma of Leadership and Management qualification is closely related to the nominated skilled occupation, Chef (ANZSCO 351311).
The Tribunal was intending to invite the applicant to appear before it on 6 January 2021 however the applicant’s representative advised that her office would be closed over the holiday period and would resume normal work hours from 11 January 2021. She asked that the hearing be set down after 25 January 2021 to allow her two weeks to prepare. The Tribunal agreed to change the hearing date to 27 January 2021. The representative confirmed orally that this was suitable. The representative then wrote to the Tribunal advising that the applicant is a FIFO worker and would be flying to the mine on 26 January 2021 and working remotely. The Tribunal brought the hearing forward, to 21 January 2021. The representative confirmed that the applicant would attend the hearing.
The representative contacted the Tribunal on 19 January 2021 and requested a postponement of hearing because she had injured her back. There was no evidence to suggest the applicant was incapacitated and could not participate in the hearing by conference telephone. The representative provided a medical certificate for herself indicating she was unfit for her usual work until 21 January 2021. The Tribunal considered this information but decided that the hearing would proceed as scheduled as there was no suggestion the applicant was not fit to participate in the hearing. The representative was reminded that if the applicant did not participate in the hearing as scheduled on 21 January 2021 the Tribunal may dismiss the matter or make its decision on the information before it. The representative confirmed she understood. She provided contact phone numbers for herself and the applicant.
The applicant appeared before the Tribunal by conference telephone on 21 January 2021 to give evidence and present arguments. The applicant’s representative also participated in the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of Schedule 2 to the Regulations. It requires that each degree, diploma or trade qualification used by the applicant to satisfy the requirement must be closely related to the applicant’s nominated skilled occupation, Chef (ANZSCO 351311). The issue in this case is whether the applicant meets that requirement.
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). The relevant instrument for this purpose is Legislative Instrument 18/051.
The term 'closely related' is not defined in the legislation but it has been considered by the Courts which have held that the connection between the two things does not require an exact correspondence[1] but must be more than merely complementary.[2] In making the assessment, it is necessary to focus on the nominated occupation rather than on the applicant’s claimed or proposed occupation or career path. The Tribunal is entitled to give substantial weight to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) descriptions.[3] The Court has held that the nature of the nominated occupation must be determined by reference to ANZSCO[4] and that the ANZSCO code needs to be read as a whole including, not only the statement of tasks specified in the relevant unit group or at the lower level of the occupation itself, but also relevant information in the higher groupings into which the nominated occupation falls.[5]
[1] MIBP v Dhillon (2014) 227 FCR 525.
[2] Uddin v MIAC [2010] FCA 1282.
[3] Manik v MIAC [2012] FMCA 149 citing Shukla v MIAC [2010] FMCA 625, Kabir v MIAC [2010] FMCA 577 and Chawdhury v MIAC [2010] FMCA 275.
[4] Talha v MIAC [2015] FCAFC 115.
[5] Ibid.
The Tribunal must objectively consider the relationship of the applicant's qualification or qualifications to the ANZSCO definition of the occupation rather than rely on the applicant's own description of what the occupation entails, or the applicant's own view of the proximity of the qualifications to the nominated occupation.[6]
[6] Chawdhury v MIAC [2010] FMCA 275.
Where more than one qualification is being used to satisfy the study requirement, all the courses must be closely related to the nominated skilled occupation. This requires a comparison between each qualification and the skilled occupation.[7]
[7] Manik v MIAC [2012] FMCA 149 at [23] to [24], upheld on appeal in Manik v MIAC [2012] FCA 619.
It is ultimately a matter for the Tribunal to decide whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated skilled occupation.[8] The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it. [9]
[8] Talha v MIAC [2015] FCAFC 115 at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 at [26].
[9] Constantino v MIBP [2013] FCA 1301 at [27].
Is each qualification closely related to the applicant’s nominated skilled occupation?
In this case, the applicant nominated the occupation of Chef which is a skilled occupation specified in IMMI 18/051. In her visa application she stated she has completed a Certificate III and a Certificate IV in Commercial Cookery, a Diploma of Hospitality, and a Diploma of Leadership and Management and lastly an Advanced Diploma of Leadership and Management.
The applicant provided to the Department and Tribunal various documents demonstrating she has completed a Certificate III and a Certificate IV in Commercial Cookery, a Diploma of Hospitality, and an Advanced Diploma of Leadership and Management completed in December 2017. The delegate was not satisfied the applicant’s Advanced Diploma of Leadership and Management, on which the applicant must rely to meet the Australian study requirement, is closely related to her nominated skilled occupation of Chef.
The applicant’s representative provided a written submission prior to the hearing. She explained that the applicant had successfully completed her Certificates III and IV in Commercial Cookery and a Diploma of Hospitality (the relevant document indicates she completed the Diploma of Hospitality on 1 November 2016). The applicant’s former migration agent omitted to lodge Subclass 485 visa application within the stipulated period of six months since finishing her Diploma of Hospitality. Due to the oversight another migration agent suggested the applicant enrol in a business course, the Advanced Diploma of Leadership and Management. She was advised the course is related to the nominated occupation for the purposes of obtaining a positive skills assessment. On that advice she completed the course. She obtained her successful skills assessment on 6 July 2017.
The representative submitted that the Advanced Diploma course is designed to provide a complete and comprehensive career path to students who aim to learn, develop and excel in the food industry, developing knowledge and practical skills. It gives a broad theoretical and technical knowledge. It helps applicants gain professional knowledge and skills in management or business. The applicant did this course to learn about organisational development, innovation and management. It is submitted that the nominated occupation requires strategic management skills in the context of the food industry.
The representative refers to ANZSCO but sets out her own description of the tasks and duties of Chef. She argues that there are various course units of the Advanced Diploma which are relevant to the role of Chef, such as developing and implementing a business plan, managing finances, providing leadership across the organisation and managing organisational change. She asserts that the course is designed to give skills in leadership and management to support individuals and teams to meet organisational and enterprise requirements and that the knowledge and skills gained are more than merely complementary. She submits that the occupation is normally engaged in important aspects of restaurant management and these were included in Advanced Diploma. She submits that the Chef has a greater understanding of techniques and flavour and higher level of responsibility. They are involved in decision-making, management and execution. She refers to the relevant ANZSCO Group 3 “Technicians and Trade Workers” which include the duties “perform a variety of skilled tasks, apply broad or in-depth technical, trade or industry specific knowledge…”. She acknowledges that there is no specific mention of management duties but asserts there is reference to monitoring quality of dishes which involves discussion and performance management of staff.
The representative submits that the Tribunal should not penalise the applicant for a technical mistake made by her previous migration agent. She provides correspondence confirming the advice described above.
The Tribunal notes the applicant received a successful skills assessment for the occupation on 6 July 2017, before she completed the Advanced Diploma of Leadership and Management in December 2017. She had applied for the visa on 14 March 2018.
At the hearing Tribunal discussed with the applicant requirements of the law, the relevant ANZSCO descriptions and whether the applicant’s qualifications are closely related to her nominated skilled occupation, Chef.
The Tribunal asked the applicant to explain why she believes the Advanced Diploma of Leadership and Management is close related to the nominated occupation. She indicated the role of Chef is now different and is not solely focused on the preparation of food. In her view the Advanced Diploma course is crucial to the way she currently performs her role as a Chef. The Tribunal asked the applicant how the course related to the preparation of food, which appears to be the focus of the ANZSCO description. She indicated that she is responsible for the management of the kitchen, costing, budgeting and supervising and training staff. She has to follow the company’s policies and procedures. If she does not understand budgeting she cannot perform the role. She argued that Chefs do not just cook; they must also manage to meet the company’s requirements. For example she must have a strategic plan to cope with any breakdown. The applicant described to the Tribunal her involvement in a project to include the indigenous community in the mine’s kitchens. As the Chef she will lead that project and participants will work under her supervision.
The Tribunal raised with the applicant its concern that her Advanced Diploma in Leadership and Management appears to be a generic course and not one focused on the duties of a Chef. The applicant argued that the Chef’s role is part of a business. While her Diploma of Hospitality covered food budgeting, she currently has a budget of $46,000 per week which covers everything in the kitchen including cleaning. She indicated however that, while she is a senior chef, she works under the supervision of a head chef.
The applicant told the Tribunal her former migration agent told her the Advanced Diploma is closely related and that she can rely on it for the purposes of her Subclass 485 visa application, nominating the occupation Chef. The Tribunal noted she was issued with a skills assessment before she completed the Advanced Diploma. It was explained to the Tribunal that the skills assessment is a two-part process, with the initial skills assessment issued as a provisional assessment. She has since been issued with the full skills assessment.
Assessment of the evidence
The applicant has argued that the last qualification she completed before making her Subclass 485 visa application, the Advanced Diploma of Leadership and Management is related to the nominated skilled occupation, Chef.
The Tribunal has considered the applicant’s documents and the related PRISMS records and it is satisfied she has completed a Certificate III and a Certificate IV in Commercial Cookery, a Diploma of Hospitality, and a Diploma and Advanced Diploma of Leadership and Management. As the applicant must satisfy the Australian study requirement within 6 months of making her visa application she must rely on the last course completed, the Advanced Diploma of Leadership and Management. Accordingly the Tribunal has first considered whether it is satisfied this course is closely related to the nominated skilled occupation.
The Tribunal has considered the relevant ANZSCO descriptions in its assessment of whether the applicant’s Advanced Diploma of Leadership and Management is closely related to her nominated skilled occupation of Chef (ANZSCO 351311). ANZSCO classifies occupations in a hierarchy of five levels. In this case, the nominated occupation in the lowest level of Occupation is Chef (ANZSCO 351311).
The ANZSCO description for the specific occupation of Chef describes the relevant tasks as follows:
·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
The ANZSCO Minor Group 351 Food Trades Workers description is that food trades workers bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments. The relevant tasks are as follows:
·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
The ANZSCO Sub-Major Group 35 Food Trades Workers description is that food trade workers bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments.
·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, adding gravies, sauces and garnishes
The ANZSCO Major Group 3 Technicians and Trades Workers description is 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. The tasks include the following:
·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
Having considered the ANZSCO descriptions, the Tribunal has formed the view that management and/or leadership tasks are not a significant part of the occupation Chef. The Tribunal accepts that in the applicant’s current role as a FIFO Senior Chef for a mine she is required to undertake management, budgeting and supervisory duties. The Tribunal accepts that the applicant has had a wide range of responsibilities in her current employment because of the nature of this particular employment. However taking into account the authorities referred to above, the Tribunal is to give substantial weight to the ANZSCO descriptions and not the applicant’s own description of what the occupation entails. The Tribunal does not accept the nominated occupation requires a Chef to develop and implement a business plan, manage finances, provide leadership across the organisation and manage organisational change, as submitted by the representative.

The Tribunal accepts the applicant did the course to learn about organisational development, innovation and management. It accepts that the Advanced Diploma may give the applicant leadership and management skills relevant to her future ambition. It accepts that she is recognised as a leader in the workplace, as indicated by her involvement in the project engaging with the local indigenous community. However, having regard to the ANZSCO descriptions, the Tribunal does not accept that these tasks and skills which she has described in the oral evidence form part of the nominated occupation. The Tribunal does not accept that Chefs are involved in managing significant budgets which cover everything including cleaning, and personnel management. In the Tribunal’s view, this describes a management role, not that of the Chef.
The Tribunal accepts that the applicant is experienced and sees her role in the hospitality industry as being more than that of Chef involved in cooking only. However it must consider the nominated occupation and not an occupation that she may choose to engage in, now or in future.
The Tribunal has considered the transcript for the Advanced Diploma of Leadership and Management. It is of the view that it is the generic management and leadership course, and not one closely related to the occupation, Chef as described in ANZSCO. While some units of the course may be useful for minor aspects of the Chef’s role, the Tribunal is the view the course is at best complementary.
The Tribunal takes into account the evidence indicating that the applicant’s former migration agent advised her that this course will be considered closely related to her nominated skilled occupation. It accepts that she enrolled in the Advanced Diploma in May 2017 on the basis of his advice. However the Tribunal does not have any discretion to waive the requirement that the applicant’s qualification is closely related to the nominated skilled occupation.
The Tribunal is satisfied that the applicant has, at best, demonstrated that some of the units of the Advanced Diploma of Leadership and Management may be useful to some aspects of the work she performs as a Chef. However it is not satisfied that she has demonstrated that the qualification as a whole is closely related to the occupation as a whole, which is the assessment required of the Tribunal.
Having considered the totality of the applicant’s evidence, the Tribunal is not satisfied that the Advanced Diploma of Leadership and Management is closely related to the occupation of Chef. Accordingly, as the applicant must rely on this course as it was the only one of her qualifications completed within 6 months of making her visa application, it is not necessary for the Tribunal to consider whether her other qualifications are closely related to the nominated occupation.
The Tribunal is not satisfied the applicant meets cl. 485.222. 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.
Denise Connolly
Member