Ishaq (Migration)

[2020] AATA 1453

Ishaq (Migration) [2020] AATA 1453 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ishaq

CASE NUMBER:  1717952

HOME AFFAIRS REFERENCE(S):          BCC2017/2320090

MEMBER:Warren Stooke AM

DATE:21 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 April 2020 at 3:47pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –– Australian study requirement – courses related to occupation completed more than six months immediately preceding date of visa application – last course not closely related to occupation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 485.222

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 31 July 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 applied for the visa on 29 June 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 (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 on the basis that the applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations because the last course of study for an Advanced Diploma of Work Health and Safety was not closely related to the occupation of Chef.

4. The applicant appeared before the Tribunal on 18 March 2020 to give evidence and present arguments.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 31 July 2017 and that he understood the content of the decision. In this regard, the applicant stated the delegate “was not agreed of the relationship of courses and the relevance”.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. The applicant provided evidence that he is a 36 year old from Pakistan, who undertook the following courses of study:

   a.Advanced Diploma of Work Health and Safety from 26 September 2016_. to 15 June 2017;

   b.Diploma of Work Health and Safety (Bus. Serv.) from 13 February 2016 to 19 September 2016;

   c.Diploma of Hospitality from 3 February 2014 to 1 August 2014;

   d.Certificate IV in Hospitality (Comm. Cookery) from 12 August 2013 to 31 January 2014;

   e.Certificate III in Hospitality (Comm. Cookery) from 6 August 2012 to 2 August 2013.

10. The applicant confirmed to the Tribunal that he currently holds a Bridging Visa A (Class WA), which provides full permission to work; does not allow travel; provides permission to study and has an obligation to maintain health insurance in accordance with criterion 8501.

11. The applicant provided evidence that he is currently working full-time as a chef in a winery restaurant in the Yarra Valley, called Wild Cattle Creek, where he has worked since 2 December 2019. He also, stated that he worked on the Zonzo Estate in the Yarra Valley from 9 December 2017 until 1 March 2019, where the employer had a cook; a dishwasher and a ladle cook for salads.

12. The applicant gave evidence that he was paid $25.00 per hour from Monday to Friday; $30.00 per hour on Saturday and $35.00 per hour on Sunday’s and that he worked around 30 hours per week.

13. The applicant submitted that the study of a Diploma in Work Health and Safety and Advanced Diploma in Work Health and Safety was closely related because of his role as a lead chef in the cooking process.

14. The applicant provided evidence that the study of WHS enhanced his experience and knowledge, which would be helpful for his future and that in Australia there was a difference with Pakistan.

15. The applicant stated that the two diplomas were just about managing the people, which enabled him to investigate incidents in the kitchen and the dining area.

16. The applicant stated that the school recommended the study of WHS, which was very important.

17. The applicant gave evidence that as a chef, the work performance of the organisation was his responsibility to advise on the safe operation of WHS risks, where he would lead and manage the organisational changes.

18. The representative for the applicant submitted that the college convinced the applicant to study WHS, which would benefit the applicant to pursue higher priorities in bigger corporations, where such skills are required and are valuable to help other persons in the kitchen.

    Does the applicant meet the Australian study requirement?

19. 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.

20. ‘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: (IMMI 09/040).

21. The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Chef - ANZSCO: 3351311, would in the Tribunal’s view, include the completion of:

    a.Diploma of Hospitality from 3 February 2014 to 1 August 2014;

    b.Certificate IV in Hospitality (Comm. Cookery) from 12 August 2013 to 31 January 2014; and

    c.Certificate III in Hospitality (Comm. Cookery) from 6 August 2012 to 2 August 2013.

22. Further, the Tribunal finds ‘prima face’ (pending a consideration of the ‘closely related’ status criteria hereunder) that the qualifications related to the occupation of a Chef - ANZSCO: 3351311 were completed more than six months immediately preceding the date of the visa application and included the completion of  Diploma of Hospitality; Certificate IV in Hospitality (Commercial Cookery) and Certificate III in Hospitality (Commercial Cookery).

23. On this basis, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.

24. Accordingly, the Tribunal is not satisfied that the applicant has met cl.485.221

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

25. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be 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 (rr.1.03 and 1.15I).

26. In this case, the applicant nominated the occupation of Chef – ANZSCO: 351311, which is a skilled occupation specified in the Legislated Instrument - Skilled visas (IMMI 16/059 Schedule 1, which commenced on 1 July 2016).

27. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated skilled occupation. The evidence provided by the applicant demonstrated that the primary qualification, as a Chef, was undertaken by the applicant through completion of the following qualifications:

    a.Diploma of Hospitality from 3 February 2014 to 1 August 2014;

    b.Certificate IV in Hospitality (Comm. Cookery) from 12 August 2013 to 31 January 2014; and

    c.Certificate III in Hospitality (Comm. Cookery) from 6 August 2012 to 2 August 2013.

28. Further, the Tribunal does not accept that the completion of a the following courses are courses of study directly related or ‘closely related to the occupation of Chef – ANZSCO: 351311:

    a.Advanced Diploma of Work Health and Safety from 26 September 2016_. to 15 June 2017;

    b.Diploma of Work Health and Safety (Bus. Serv.) from 13 February 2016 to 19 September 2016;

29. The Tribunal finds that the subject matter of the Diploma courses in Work, Health and Safety over a 16 month period prior to the applicant’s application for the occupation of Chef, have no specific trade relationship to the occupation of Chef and that the courses more closely relate to an occupation related to Work, Health and Safety management, which is a discrete occupation itself, at a professional level, and is not the ‘trade occupation’ that has been applied for in the applicant’s application. In this regard, the two diploma courses are more akin to the occupation prescribed for an Occupational Health and Safety Adviser - ANZSCO: 251312.

30. Whilst the Tribunal acknowledges that WHS would be useful to the occupation of Chef, the applicant gave evidence that these courses of study were aligned with his future aspirations in a “bigger corporation”.

31. The Tribunal finds that the courses of study toward two diplomas in Work, Health and Safety over a 16 month period is not necessary to undertake the occupation of a Chef and are considered by the Tribunal to be discretionary rather than mandatory to perform in the occupation.

32. The Tribunal does not accept that completion of a Diploma of Work Health and Safety and an Advanced Diploma of  Work Health and Safety; are ‘closely related’ to the occupation of Chef – ANZSCO: 351311, which includes the following general duties within the descriptor:

    UNIT GROUP 3513 CHEFS

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

    Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. 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 Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register 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

    
    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 Chef

33. As the applicant’s most recent qualifications are not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

34. 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

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

    Warren Stooke AM
    Member