Gautam (Migration)

[2022] AATA 2195

Gautam (Migration) [2022] AATA 2195 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Yamuna Gautam
Mr Bikash Gautam
Master Aaryab Gautam
Master Aarnav Gautam

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  1915727

HOME AFFAIRS REFERENCE(S):         BCC2017/4013081

MEMBER:Alison Mercer

DATE:16 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl 187.234 of Schedule 2 to the Regulations.

Statement made on 16 June 2022 at 1:21pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – applicant obtained the necessary qualification in Australia – Recognition of Prior Learning used for the whole achievement of the qualification – delegate's reliance on Departmental policy – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cl 187.234

CASES

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
Momcilovic v The Queen [2011] HCA 34
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 30 October 2017. At the time of application, Class RN contained one subclass: subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a subclass 187 visa are set out in Part 187 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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visas because the applicant did not meet cl 187.234 of Schedule 2 to the Regulations. The delegate found that the applicant did not fall within cl.187.234(a) or (b) and therefore had to meet cl.187.234(c). In assessing that subparagraph, the delegate found as follows:

   187.234(c) states:

   Both:

   (i) the applicant's occupation was not specified by the Minister in an instrument in writing for subparagraph (b)(i), or the applicant obtained the necessary qualification in Australia; and

   (ii) the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

   The instrument in writing is IMMI 12/096 and the visa applicant’s nominated occupation of Cook is listed on the instrument.

   I have assessed whether the applicant obtained the necessary qualification in Australia. On the application form, the applicant claimed the following Australian qualifications:

   Qualification: AQF Certificate IV

   Course name: COMMERCIAL COOKERY

   Institution name: Skills Institute of Australia

   Country of institution: AUSTRALIA

   Campus: SLACKS CREEK QLD

   Postcode of campus: 4127

   Date from: 15 Jan 2015

   Date to: 15 Apr 2015

   The Certificate IV in Commercial Cookery from the Skills Institute of Australia has been considered. The applicant supplied a course completion certificate, record of results and letter from Mr Rubinder Singh, Business Manager, to evidence her claims. The course duration of three months claimed on the application form is confirmed on the transcript of results.

   The letter from the Business Manager states that the qualification was achieved through the process of Recognised Prior Learning (RPL). The letter further states that “The RPL Process may include one or more of the following assessment tools to assess the qualification:

   Recognising previous experience

   ● Interview question

   ● Gap Training

   ● Assessments

   ● Reference letters and

   ● Previous qualification.

   The education provider has not stated what qualifications or experience were submitted or assessed.

   Relevant migration policy states that “For the purpose of RSMS and under policy, RPL cannot substitute for all of the course content in a credit transfer arrangement but may only apply to a small number of completed assessment items.”

   Therefore, as RPL was used for the achievement of the qualification, I am not satisfied that the qualification used to demonstrate the applicant’s skills is sufficient to demonstrate that the applicant is able to meet regulation 187.234(c)(i).

6. The delegate therefore refused to grant the applicant a subclass 187 visa. The delegate also refused to grant the second, third and fourth named applicants (the applicant’s husband and children) as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 187 visa and there was no evidence to suggest that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 18 June 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr John Egan, as their representative and authorised recipient for correspondence. Subsequently, they appointed another migration lawyer, Mr Nigel Dobbie, to these roles.

8. On 14 April 2022, the Tribunal received the following submissions from the applicants’ lawyer:

   …

   We refer Ms Gautam's application for review of a decision, made by a delegate of the Minister on 31 May 2019, to refuse her application for a Class RN, subclass 187, visa. Ms Gautam's family unit was included in the visa application and are included in the review application.

   Why a decision can be made to set the decision aside on the papers

   The visa application was made on 30 October 2017.

   The delegate refused the visa application on the basis that the delegate was not satisfied that Ms Gautam satisfied clause 187.234 of Schedule 2 of the Migration Regulations 1994. There are three ways of satisfying clause 187.234, being by way of satisfying any of the following: subclause 187.234(a); subclause 187.234(b) and subclause 187.234(c).

   Ms Gautam relied on satisfying subclause 187.234(c) in order to satisfy clause 187.234. Clause 187.234 relevantly provided, at the time of application:

   187.234

   At the time of application:

   (a)   the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

   (b)   all of the following requirements were met:

   (i)the applicant's occupation is specified by the Minister in an instrument in writing for this subparagraph;

   (ii)  the applicant did not obtain the necessary qualification in Australia;

   (iii) the applicant's skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;

   (iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;

   (v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment - the period had not ended;

   (vi) if subparagraph (v) did not apply - not more than 3 years had passed since the date of the assessment; or

   (c)   both:

   (i)the applicant's occupation was not specified by the Minister in an instrument in writing for subparagraph (b)(i), or the applicant obtained the necessary qualification in Australia; and

   (ii)the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

   (emphasis added)

   One can see from the language of subclause 187.234(c) that it is comprised of sub­subclauses 187.234(c)(i) and 187.234(c)(ii), both of which need to be satisfied for the purposes of subclause 187.234(c), and therefore for the purposes of satisfaction of clause 187.234.

   The nominated occupation is that of a Cook: ANZSCO 351411. The ANZSCO provides the following in relation to that nominated occupation:

   UNIT GROUP 3514 COOKS

   COOKS prepare, season and cook food in dining and catering establishments.

   chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. 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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

   In New Zealand:

   NZQF Level 2 or 3 qualification (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:

   ·examining foodstuffs to ensure quality

   ·regulating temperatures of ovens, grills and other cooking equipment

   ·preparing and cooking food

   ·seasoning food during cooking

   ·portioning food, placing it on plates, and adding gravies, sauces and garnishes

   ·storing food in temperature-controlled facilities

   ·preparing food to meet special dietary requirements

   ·may plan menus and estimate food requirements

   ·may train other kitchen staff and apprentices

   Occupation:

   351411 Cook

   351411 COOK

   Prepares, seasons and cooks food in a dining or catering establishment. Skill Level: 3 Australia, 4 New Zealand

   One can see from the ANZSCO information above that the occupation's skill level is Skill Level 3, which provides:

   In Australia:

   AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

   The occupation of cook is specified on IMMl12/096 for the purposes of sub-subclause 187.234(2)(b)(i). Ms Gautam claimed to satisfy sub-subclause 187.234(c)(i) on the basis that she had the obtained a Certificate IV in Commercial Cookery in Australia, from Skills Institute Australia, by way of Recognised Prior Learning.

   Ms Gautam claimed to satisfy sub-subclause 187.234(c)(ii) on the basis that she had a Certificate IV in Commercial Cookery, which is a necessary qualification, having regard to the ANZSCO.

   The delegate refused the visa application on the basis that the delegate formed the view that the PAM provided:

   Relevant migration policy states that "For the purpose of RSMS and under policy, RPL cannot substitute for all of the course content in a credit transfer arrangement but may only apply to a small number of completed assessment items."

   Therefore, as RPL was used for the achievement of the qualification, I am not satisfied that the qualification used to demonstrate the applicant's skills is sufficient to demonstrate that the applicant is able to meet regulation 187.234(c)(i).

   As the applicant has not provided a skills assessment, nor has relevant Australian qualifications, that were listed in ANZSCO as being necessary to perform the tasks of the occupation, I find that clause 187 .234 is not met by the applicant.

   The problem with the delegate's reliance on the PAM is that the PAM seeks to read words into the legislation that are simply not there. Policy can never rise above the legislation to which is relates. The PAM is not to be followed where it is inconsistent with the law. In Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168, the Full Court of Federal Court of Australia stated at [43] and [63]-[68], per French J, Sackville and Hely JJ, that the Tribunal committed jurisdictional error by relying on government policy that was unlawful (because the policy sought to narrow the application of a visa criterion, despite language of the criterion, which showed a broader application than that contained in the policy):

   43. Where the Minister misconstrues one of the criteria prescribed in the Act or Regulations and, because of that misconstruction he considers that the criterion has not been satisfied, it is as though he did not consider the criterion at all. For, on the face of it, he has failed to ask the question which the Act and Regulations, upon a proper construction of the criterion, require him to ask. In such a case, absents 474, the Minister's decision would be a nullity. The Minister has not done that which the Act requires him to have done. The decision would be a purported decision of no legal effect.

   It was not disputed that the departmental policy to which the Tribunal adverted was narrower than the criterion for a subclass 845 visa set out in cl 845.216 of the Second Schedule to the Migration Regulations. The criterion requires satisfaction on the part of the Minister that the applicant for the visa as the owner of an interest in a main business ' ... maintained direct and continuous involvement in the management of that business or those businesses from day to day and in making decisions that affected the overall direction and performance of that business or those businesses'. This did not import a requirement that could only be satisfied by demonstrating the exercise of responsibility within the business in terms of decision-making authority, responsibility for employees and/or responsibility for expenditure. There is a variety of ways in which a person might maintain direct and continuous involvement in the management of a business and in making decisions affecting its overall direction and performance.

   Having regard to the concession made, a want of satisfaction of the criteria set out in the departmental policy would not equate to a want of satisfaction of the criterion in cl 845.216.

   It is apparent from the reasons of the Tribunal, particularly pars 39, 40 and 46 set out earlier in these reasons, that the Tribunal treated assessment according to the departmental policy as assessment for the purposes of cl 845.216. In so doing it erred and its error was jurisdictional. It did not address the question which s 65(1) of the Act required it to address.

   It was submitted on behalf of the Minister under the notice of contention that the facts found by the Tribunal in respect of the Lobos' application excluded the possibility of satisfaction of the criterion in cl 845.216 notwithstanding that the Tribunal did not in terms apply that criterion.

   It may be the case that if the Tribunal's findings of fact as to Mrs Lobo's involvement in the business were to stand the prospects of her satisfying the visa criteria would not be great. However, the Court cannot exclude the possibility that upon wider consideration of' direct and continuous involvement' in the management of the business, according to the statutory criterion, a different result will be reached. The Court is not satisfied that the grant of the relief sought in this case would be an exercise in futility.

   Conclusion

   For the preceding reasons the appeal will be allowed and certiorari and mandamus will issue. It does not seem necessaiy in the circumstances to issue a writ of prohibition. The respondent should pay the appellants' costs of the appeal.

   When considering statutory interpretation, one must consider the language of the law being interpreted as a starting point. Where the language is plain in its meaning, and is neither ambiguous or in conflict with other provisions of the relevant statute or regulations, effect must be given according to the plain meaning of that language. There is no lawful basis for a different construction to be otherwise applied or upon which additional meanings are to be somehow garnered from that plain language (or imposed by policy): see Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ stated at [69]-[71]:

   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute12.1. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

   A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals[49]. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

   Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".

   (footnotes omitted)

   In Momcilovic v The Queen [2011] HCA 34 French CJ stated at [37]-[40]:

   Section 32(1) takes its place in a milieu of principles and rules, statuto1y and non-statutory, relating to the interpretation of statutes. It also takes its place in a constitutional tradition inherited from the United Kingdom in which [58]:

   "it has been recognised since the 17th centmy that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it'."

   The interpretation of a law of the State of Victoria by the Supreme Court of Victoria is "an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application oflaws."[59] In that context "[a]scertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the

   comts."[60] In that way, the duty of the Comt defined in Project Blue Sky Inc v Australian Broadcasting Authority[61] is discharged:

   "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have."

   There are different ways of undertaking the interpretive task and, in a particular case, they may yield different answers to the same questions[62]. But if the words of a statute are clear, so too is the task of the Court in interpreting the statute with fidelity to the Court's constitutional function. The meaning given to the words must be a meaning which they can bear. As Lord Reid said in Jones v Director of Public Prosecutions[63]:

   "It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of that provision cannot reasonably bear. If they are capable of more than one meaning, then you can choose between those meanings, but beyond that you must not go."

   In an exceptional case the common law allows a court to depart from grammatical rules and to give an unusual or strained meaning to statutory words where their ordinaty meaning and grammatical construction would contradict the apparent purpose of the enactment. The court is not thereby authorised to legislate[64]. That common law approach is not open in this case as there is no disconformity between the language of s 5 of the Drugs Act and its purpose, or that of the Act as a whole[65].

   In Momcilovic, Gummow J stated:

   No doubt the Parliament of the Commonwealth cannot delegate to courts exercising the judicial power an authority conferring a discretion or choice as to the content of a federal law[279]. Further, a law of a State, such as the Charter, is not readily construed as conferring such a power upon State courts[280]. This is because such a State law would require the State courts to act in a fashion incompatible with the proper discharge of their federal judicial responsibilities and with their institutional integrity.

   However, the reference to "purpose" in such a provision ass 32(1) is to the legislative "intention" revealed by consideration of the subject and scope of the legislation in accordance with principles of statutory construction and interpretation. There falls within the constitutional limits of that curial process the activity which was identified in the joint reasons in Project Blue Sky[281]. This is so notwithstanding that their Honours were considering conflicting provisions within the one statute.

   McHugh, Gummow, Kirby and Hayne JJ, before setting out a lengthy passage from Bennion's work Statutory Interpretation[282], said[283]:

   "The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction[284] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."

   That reasoning applies a fortiori where there is a canon of construction mandated, not by the common law, but by a specific provision such ass 32(1).

   Once the significance of the reasoning in Project Blue Sky is appreciated and s 32(1) is understood in the sense described above, it is apparent that the provision does not confer upon the courts a function of a law-making character which for that reason is repugnant to the exercise of judicial power. Section 32(1) is not invalid .

   (footnotes omitted)

   In Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39], French CJ, Hayne, Crennan, Bell and Gageler JJ stated:

   "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text"⁵⁹. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials.

   Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

   There is no definition of the word 'obtained' in the Act or in the Regulations. The Macquarie Dictionary, Fifth Edition, provides the following in relation to 'obtain':

   Obtain verb (t) 1. To come into possession of; get or acquire; procure, as by effort or request: he obtained a knowledge of Greek.

   There is no ambiguity in the wording of sub-subclause 187.234(c)(i), let alone in relation to the word 'obtained', to warrant the unlawful policy contained in the PAM to limit the application of the word 'obtained'. There is no conflict with other provisions of the Act or the Regulations. What the policy seeks to do is to include words that seek to do legislative surgery to sub-subclause 187.234(c)(i), and that is not permitted in law: see Project Blue Sky, Momcilovic and Commissioner of Taxation (and Lobo) above cited. Quite simply, the word 'obtained' means what it says.

   We note that if the Minister intended to limit the word 'obtained', the Minister would have qualified that word, and which the Minister has done for other visa classes; for example:

   189.222

   (2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.

   190.212

   (2) If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa , the qualification was obtained as a result of studying a registered course.

   It should be remembered that the subclass 187 visa is to facilitate the permanent entry of workers in regional Australia, having regard to skills and labour shortages. The narrow approach in the PAM is inconsistent with that purpose.

   With great respect, the policy relied on by the delegate in the PAM is unlawful and it must not be followed: see Lobo above cited.

   It is submitted that as Ms Gautam obtained her Certificate IV in Australia, she satisfies sub-subclause 187.234(c)(i), and as she satisfies sub-subclause 187.234(c)(ii), she should be found to satisfy clause 187.234.

   It is submitted that the delegate's decision can be set aside on the papers accordingly.

   …

1. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

2. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   Skills and qualifications

3. For applicants in the Direct Entry stream, cl 187.234 requires that at the time of application:

   ·     the applicant is in a specified class of persons (exempt persons), or

   ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

   ·    if neither of the above applies, the applicant had the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary as being necessary to perform the tasks of the occupation.

4. For visa applications made on or after 18 March 2018, applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation. This does not apply in the applicant’s case as his application was lodged prior to 18 March 2018.

5. For this criterion, the relevant classes of exempt persons have been specified in IMMI 17/058, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

   Exempt classes – cl.187.234(a)

6. IMMI 17/058 provides that the exempt classes of people for the purposes of cl.187.234 are as follows:

   9   Subclass 187 applicants (Direct Entry stream) who are not required to meet certain criteria relating to skills and qualifications

   For the purposes of paragraph 187.234(a) of Schedule 2 to the Regulations, the following class of persons is specified:

   Applicants for Subclass 187 visas who hold a Subclass 444 (Special Category) visa or a Subclass 461 (New Zealand Citizen Family Relationship) (Temporary) visa and who have been working in a nominated occupation for the nominating employer for at least two years (excluding any periods of unpaid leave) in the three years immediately before applying for the Subclass 187 visa.

7. The Tribunal has reviewed the Department’s records and is satisfied that the applicant has never held a subclass 444 or 461 visa, and thus does not fall within the above category. She is not exempt within the meaning of cl.187.234(a) and must therefore meet cl.187.234(b) or (c) (whichever is applicable).

   Skills assessment – cl.187.234(b)

8. This clause requires that if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – then the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application).

9. IMMI 12/096 is the relevant instrument for these purposes, and the Tribunal is satisfied that it contains the applicant’s nominated occupation of Cook (ANZSCO 351411). However, the available evidence indicates that the applicant did obtain her necessary qualification for this occupation (her Certificate IV in Commercial Cookery) in Australia (albeit by RPL, discussed below).

10. Accordingly, the applicant was not required to have obtained a skills assessment from TRA (the specified authority listed in IMMI 12/096 for the occupation of Cook) prior to making her subclass 187 visa application. The Tribunal therefore finds that cl.187.234(b) does not apply in this case.

    Qualifications – cl.187.234(c)

11. This clause requires that both:

    (i)  the applicant's occupation was not specified by the Minister in an instrument in writing for subparagraph (b)(i), or the applicant obtained the necessary qualification in Australia; and

    (ii)  the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

12. As noted above, the applicant’s nominated occupation of Cook is listed in IMMI 12/096, and the applicant obtained her necessary qualification in Australia (her Certificate IV in Commercial Cookery).

13. The ANZSCO occupational description for a Cook lists the following necessary qualifications (Tribunal’s emphasis in italics):

UNIT GROUP 3514 COOKS

COOKS prepare, season and cook food in dining and catering establishments.

Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. 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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:

NZ Register Level 4 qualification (ANZSCO Skill Level 3)

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:

o    examining foodstuffs to ensure quality

o    regulating temperatures of ovens, grills and other cooking equipment

o    preparing and cooking food

o    seasoning food during cooking

o    portioning food, placing it on plates, and adding gravies, sauces and garnishes

o    storing food in temperature controlled facilities

o    preparing food to meet special dietary requirements

o    may plan menus and estimate food requirements

o    may train other kitchen staff and apprentices

Occupation:

351411 Cook

351411 COOK

Prepares, seasons and cooks food in a dining or catering establishment.

Skill Level: 3

1. As noted by the delegate, the applicant has a Certificate IV in Commercial Cookery, which states that it was issued on 28 April 2015 by a registered training organisation, Skills Institute Australia. An accompanying letter of the same date provides the following information:

   …

   This letter certifies that [the applicant] has achieved this qualification through the process of RPL (Recognition of Prior Learning) based on the evidence and is eligible to receive the award. The RPL Process may include one or more following assessment tools to assess the qualification:

   ·Recognising previous experience

   ·Interview question

   ·Gap training

   ·Assessments

   ·Reference letters and

   ·Previous qualification

   …

   Course: SIT40413

   Award: Certificate IV in Commercial Cookery

   Commenced on: 15/01/2015

   Completed on: 15/04/2015

   Further information may be obtained by contacting Skills Institute Australia

   …

2. As noted above, the delegate did not accept that this qualification met the requirements in ANZSCO as Departmental policy (as set out in Procedures Advice Manual 3 (PAM3)) as it stood at that time (June 2019) provided that a qualification obtained by RPL could not substitute for all of the course content in a credit transfer arrangement but could only apply to a small number of completed assessment items; and that where a decision maker was not satisfied the qualification genuinely reflected an appropriate level of assessment as evidence for skills acquired during a formal course of learning, then they could form the view that cl.187.234(c) was not met. In this case, the delegate placed adverse weight on the fact that the RTO letter did not specify which of the listed assessment tools had been used in the applicant’s case.

3. The Tribunal notes that this appears to have been removed from the current policy document used by the Department for cl.187.234(c) (as at 22 May 2022).

4. The Tribunal further notes that the plain wording of cl.187.234(c) requires only that the applicant obtained the necessary qualification in Australia, and had the qualification listed in ANZSCO as necessary to perform the tasks of the nominated occupation. PAM3 as it stood previously arguably asks the decision maker to go behind the qualification itself and question the basis upon which it was issued, and the Tribunal considers that this goes beyond the requirements of the legislation. In the Tribunal’s view, this is supported by the fact that the current version of PAM3 on cl.187.234(c) no longer contains a prohibition on considering qualifications obtained solely or partly through RPL.

5. Accordingly, the Tribunal finds that the applicant obtained a Certificate IV in Commercial Cookery in Australia in 2015, which is one of the qualifications listed in ANZSCO as required for the occupation of Cook in Australia.

6. She therefore satisfies cl.187.234(c) and thus meets cl.187.234 as a whole.

7. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa. As the second, third, and fourth named applicants applied for the visas on the basis of being members of the family unit of the applicant, their applications will also be remitted to the Department for reconsideration upon its reconsideration of the applicant’s application.

   DECISION

8. The Tribunal remits the applications for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl 187.234 of Schedule 2 to the Regulations.

   Alison Mercer
   Member