Joon (Migration)

[2019] AATA 2320

Joon (Migration) [2019] AATA 2320 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur Joon

CASE NUMBER:  1706215

HOME AFFAIRS REFERENCE(S):           BCC2016/4354779

MEMBER:Kira Raif

DATE:1 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 April 2019 at 4:14pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chef – Australian study requirement – Diploma of Business – qualification ‘closely related’ to nominated occupation – pursue own business in the future – restaurant owner or manager – responsibilities of a chef – helpful for performing some tasks – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.221, 485.222

CASES
Constantino v MIBP [2013] FCA 1301
Pasula v Minister for Immigration & Anor [2010] FMCA 219
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Walia v MIBP [2015] FCCA 1949

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 7 March 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 September 1990. He applied for the visa on 23 December 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 1 April 2019 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

4. 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).

5. 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.

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

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in his application form the applicant claims to have completed the following study in Australia

   04/14 – 09/15     Certificates III and IV in Commercial Cookery

   09/15 – 07/16     Diploma of Business

7. (The applicant told the Tribunal that he commenced the Diploma in July 2015.)

8. The applicant had nominated the occupation of a Chef ANZSCO 351311 and enclosed with his application a Skills assessment for that occupation issued by the TRA.

9. As the application for the visa was made in December 2016, the only qualification the applicant completed in the six months before the application was made is the Diploma of Business. The Tribunal finds that the applicant relied on that qualification to satisfy the Australian study requirement. The Tribunal must be satisfied that the Diploma of Business is closely related to the nominated occupation of a Chef.

10. In his written submission to the Tribunal the applicant refers to the description of tasks for the occupation of Chef as set out in ANZSCO. The applicant states that the Diploma of Business is related to the Certificate IV in Commercial cookery. The Tribunal finds that argument misconceived because the close relationship must exist between the qualification and the nominated occupation and not between the different qualifications that the applicant holds.

11. The applicant states that his qualification consisted of 8 competencies and each had equipped him with the skills to perform his job. The applicant describes each of the subjects he completed as part of the Diploma of Business and how he could utilise the knowledge from these in his job. The Tribunal considers the applicant’s submission unpersuasive because the Tribunal does not accept that many of the tasks to which the applicant refers – such as review of administrative systems, meetings management, project work, risk management, marketing or managing business document design – form part of the occupation of the chef. The applicant’s description of how he would perform these tasks in the occupation of the chef are, in the Tribunal’s view, unrealistic and far-fetched. In the Tribunal’s view, the tasks outlined by the applicant are not consistent with the description for the nominated occupation set out in ANZSCO.

12. In oral evidence, the applicant stated that he wants to run his own business in the future. With Certificate qualifications he can do basic cooking but he needed business skills to be able to run his own restaurant. 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.

13. 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.

14. In oral evidence, the applicant also referred to a number of units he completed as part of his Diploma, such as risk management, business documentation, marketing and others and the applicant outlined how he uses these skills in his occupation as a chef. The applicant states that as a chef, he is responsible for managing kitchen staff. He may be asked to do marketing by the restaurant owner. However, the Tribunal finds that the assessment must be undertaken in relation to the occupation as a whole and not limited aspects of the occupation which the applicant considers to be beneficial to his argument. The court confirmed in Walia v MIBP [2015] FCCA 1949 that consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation. The Tribunal is not satisfied that those skills which the applicant outlined in his submission and which he claims he acquired from his business qualification, form a meaningful part of the whole of the occupation.

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, there are very few, if any, business responsibilities that form part of the occupation of a chef. The Tribunal is not satisfied that as a chef, the applicant would routinely perform tasks such as marketing, managing meetings, risk management (in the context of a business qualification, rather than running a kitchen), business document design and project management. These tasks do not form part of the occupation as a whole. The applicant states the skills he acquired in his course – including skills such as supervising staff, marketing, preparation for meetings – would be helpful. The applicant outlined how the skills he acquired in the Business course can be applied in the occupation of a chef. The applicant states that as a chef, he would be responsible for the marketing of the restaurant and he would have to manage business interactions. He could hire staff and manage the induction process and interview staff. The Tribunal does not accept that submission. Firstly, as noted above, the Tribunal does not consider that the tasks to which the applicant refers form part of the normal responsibilities of a chef. Secondly, the applicant’s argument shows, at best, that some of the skills he acquired in his business qualification could be helpful for him to perform some of the tasks performed by a chef. However, being helpful is not sufficient. There must be a close relationship and not merely the usefulness of one to the other.

17. While 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. A day before the scheduled hearing the applicant’s representative provided to the Tribunal another decision of the Tribunal on the similar issues that arise in this case. In that case, the Tribunal found that a Diploma of Business Management was ‘closely related’ to the occupation of a pastry cook. The presentation of this document was not accompanied by any submission from the representative about its relevance or legal principles involved. No explanation was offered by the representative for the late submission of this document. The applicant was represented by Ratna Reddy Singareddy of Infant Jesus Migration Consultancy. The Tribunal acknowledges that decision, but it has no binding effect on the present Tribunal. The Tribunal is also mindful that there are numerous other decisions of this Tribunal where the close relationship was found not to exist. These decisions are equally not binding on the present Tribunal.

19. 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

20. 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

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

    Kira Raif
    Senior Member