Kandel (Migration)

[2023] AATA 105

Kandel (Migration) [2023] AATA 105 (9 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suman Kandel

REPRESENTATIVE:  Ms Justine Elizabeth Hayward-Smith (MARN: 0852491)

CASE NUMBER:  1924198

HOME AFFAIRS REFERENCE(S):         BCC2019/1324585

MEMBER:Alison Mercer

DATE:9 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 9 January 2023 at 10:32am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – chef – qualification necessary to perform tasks of occupation – three years of relevant experience substituting for formal qualification – part-time work calculated on pro rata basis – full-time work experience at required skill level – previous departmental policy that work substituting for formal qualification and work at required skill level can be done concurrently – current policy silent on issue – AQF certificates and positive skills assessment – COVID restrictions and skills shortage in regional area – experience, promotion and role in workplace – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 187.234(c)(ii), (iii)

CASE

Milocani (Migration) [2022] AATA 3666

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 March 2019. 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 applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Chef.

5. The delegate refused to grant the visa because the delegate found that the applicant did not meet cl 187.234 of Schedule 2 to the Regulations, which requires that the applicant either had a skills assessment for his occupation, if it were an occupation specified by the Minister, or has the qualifications listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary for the nominated occupation, or is exempt from these requirements. The delegate found that the applicant was not exempt, did not have a specified occupation and therefore had to have the qualifications listed in ANZSCO for a Chef. While the applicant held a Certificate III and Certificate IV in Commercial Cookery, the delegate noted that they were obtained by Recognition of Prior Learning (RPL). The delegate applied Departmental policy, as set out in the Department’s Procedures Advice Manual (PAM3), to exclude these qualifications as PAM3 indicated that qualifications obtained entirely by RPL were not acceptable for the purposes of cl.187.234. The delegate considered the applicant’s prior work experience as a Cook and/or Chef, but found that most of it was unverified and was also largely undertaken while the applicant held a student visa restricting his work rights to 20 hours per week. The delegate was therefore not satisfied that the applicant had work experience at the required skilled level of at least 3 years, as also required. The delegate found that the applicant did not meet the requirements for a subclass 187 visa in the Direct Entry and had not made claims against any other stream.

6. The Tribunal received a review application from the applicant on 29 August 2019. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Suraj Khatri, as his representative and authorised recipient for correspondence. On 29 October 2021, the applicant appointed a new agent, Ms Justine Hayward-Smith, to these roles.

7. On 10 October 2022, the Tribunal wrote to the applicant via her agent, to invite him to attend a hearing to be conducted by videoconference on 25 October 2022. They were requested to provide any submissions and/or documents in support of the case prior to the hearing.

8. On 18 October 2022, the Tribunal received the following email from the applicant’s agent:

   …

   Please find attached the following documents, to be provided over several emails:

   ·   AAT pre-hearing submission

   ·   Additional Identity Documents:

   o  Marriage Certificate - attached

   o  Divorce Papers - attached

   ·   Evidence of Skills and Qualifications

   o  Skills Assessment - attached

   o  Certificate IV Commercial Cookery and transcript - attached

   o  First Aid Certificate - attached

   o  Certificate of Food Safety and Hygiene - attached

   ·   Evidence of In Excess of 8 years Work Experience

   o  Superannuation Statements 2014-2022

   o  PAYG and Income Statements 2014-2022

   o  Payroll Advice 2019 - 2022

   o  Bank Statements - personal showing paid salary

   o  References

   § Royce Hotel

   § Ginger Baker

   § Others requested - awaiting receipt

   o  Resume - Suman Kandel

   Please do not hesitate in contacting me should you have any questions.

   …

9. The agent’s legal submissions were as follows:

   …

   BACKGROUND

   Application For Review

   On 15 March 2019 the Applicant made an application for a Regional Employer Nomination (Permanent) (Class RN) visa.

   On 12 August 2019 the Delegate refused to grant the Applicant a Regional Employer Nomination (Permanent) (Class RN) visa

   On 20 September 2019 the Delegate granted the associated nomination for DINNERPLAIN.COM PTY LTD nominating the Applicant in the skilled occupation of Chef.

   Cultural Background

   Suman was born in Chitwan, located in Central Development Region of Nepal. The Applicant has two older sisters and a younger brother and grew up in a traditional Nepalese home, where culturally elders are shown a great deal of respect and education is highly regarded. The SBS Cultural Atlas, supports this stating:

   “Elders are always shown a heightened amount of respect and are treated more formally..” “Education is highly prized…” with the touching or kicking of literature seen as “an insult to Saraswati (the goddess of education)”.²

   Education Background

   2011 – 2013: Tribhuvan University

   Suman attended Tribhuvan University, to undertake a Bachelor of Education at Jana Adarsha Multiple Campus. He was encouraged to do so by his parents and elders³, as one of his elder sisters had also followed this academic pathway. The course material was not enjoyable and he was not passionate about his future career prospects on completion of the course. Following three years of study, he decided to follow his dream of studying in Australia and applied for a degree in Health Science. Again, encouraged by his family who believed this degree would provide him with good job opportunities in the future, he took their advise, respecting his elders advise and their financial contribution to his education.

   2013- 2015: Deakin University, Melbourne

   Suman gained a Diploma in Health Science after his first year of study, but again was discouraged by the course. The Applicant transferred to a Bachelor in Accounting, encouraged by educators, his family and in particular one of his elder sisters, who was an Accountant, with the desire to gain good job prospects.

   Having evaluated the recommendations made by his family he decided to attend Holmes College and start a Bachelor in Accounting. Throughout his time in Australia, he continued to cook and bake and despite this being his passion was guided by his families desires for him to choose a professional course of study, rather than a trade in the hospitality industry, which he was drawn to.

   2015 – 2018 Holmes College, Melbourne

   Whilst studying a Bachelor of Accounting in Melbourne, the Applicant started to spend time in Bright, regional Victoria visiting friends. He fell in love with the area and decided to move to regional Australia, whilst commuting to Melbourne two days a week for face to face classes, to continue with his degree. He found a part-time job with the Ginger Baker Wine Bar and Café in December 2016 whilst he continued to study. At this time he was separating from his wife, Natasha Khanal, he struggled emotionally during this challenging time. They divorced on 29 December, 2017. It was at this point that the Applicant decided to turn his life around and pursue his passion and love of cooking and turn this into his full-time career. He applied for a Certificate IV in Commercial Cookery.

   June 2018 – December 2019 Choice Business College

   The Applicant studied a Certificate IV in Commercial Cookery and qualified on 1 December, 2019. On 15 March, 2019 Suman’s student visa was due to expire. He was advised by a Migration Agent to obtain the necessary qualifications as a Chef with a Registered Training Organisation (RTO), through the recognition of prior learning (RPL) pathway and apply for a RSMS visa.

   Qualification Background

   The Applicant has achieved the following qualifications:

   January 2019: RPL Obtained

   On 4 January, 2019 the Applicant obtained a Certificate III in Commercial Cookery and a Certificate IV in Commercial Cookery on 7 January, 2019, through recognition of prior learning (RPL).

   December 2019: Attained Certificate IV in Commercial Cookery

   On 17 December, 2019 the Applicant was awarded a Certificate IV in Commercial Cookery, following 18 months of study, through Choice Business College, Melbourne.

   January 2020: Attained First Aid Qualification

   February 2020: Attained Statement of Attainment in Hygienic Practices for Food Safety and Safe Handling Practices

   July 2020: Successful Skills Assessment Awarded

   On 24 July, 2020 Suman Kandel received a successful skills assessment recognizing his skills, experience and qualifications in his skilled occupation of Chef.

   Employment Background

   The Applicant has provided verifiable evidence to the Tribunal of his claimed periods of employment to support in excess of 12 years of relevant experience as follows:

   ·Bhramathani Food Produce: 2011 – December 2013 | Produce Manager | 3 years part-time

   ·Royce Hotel: 21 January 2014 – December 2016 | Chef | 2yrs 11 months part-time

   ·Belle’s Diner: 3 September, 2014 – 1 April, 2015 | Cook and Chef | 4 months part-time

   ·Arbory Pty Ltd: 13 April, 2015 – 2 August, 2015 | Chef | 7 months part-time

   ·1961CoffeeHead: 15 August 2016 – 12 November, 2016 | Chef | 3 months part-time

   ·Ginger Baker Wine Bar and Café 10 January, 2017 – Current | Chef | 5 years 10 months (3 years part-time and 2 years 10 months full-time)

   The Applicant has gained 8 years and 11 months of relevant part-time experience and 2 years and 10 months of full-time experience, a full-time equivalent of 7 years and 4 months, with 5 years and 10 months within the skilled occupation of Chef.

   FURTHER INFORMATION

   The Nomination Must be Approved and not subsequently withdrawn

   On 12 August, 2019 the Delegate refused to grant the Applicant an RSMS visa. On 20 September, 2019 a Delegate granted the corresponding nomination.

   Schedule 2 provides within sub-clause 187.233(3)⁴ that; “The minister has approved the nomination”.

   Policy attests that under this sub-clause “..the nomination relating to the visa application must have been approved and not subsequently withdrawn. Departmental records will indicate whether a corresponding nomination has been approved by the time a decision on the visa application is ready to be made”.⁵

   At the time of the application decision on 12 August, 2019, the nomination had not yet been approved. The legislative procedure was not followed in relation to the decision making process of this visa.

   In making this decision to refuse the visa, the delegate failed to take into account a successful nomination and RCB approval for the position, which may have added weight to the delegates decision making process, given the skills shortage in regional Victoria. It also prevented the delegate from making a positive decision, as the nomination was yet to be approved.

   Culinary Skills

   Suman gleaned his culinary skills and passion for cooking as a child growing up in Nepal. One of four children, with two older sisters and a younger brother, he spent many hours in the kitchen learning culinary skills from his mother. He would assist her with cooking traditional Nepalese meals, such as, Dal Bhat, a staple Nepali lentil and rice dish accompanied by salad, pickles papadams and curd, Momo’s a type of Tibetan dumpling, Gundruk and Sel Roti. His favourite dish was Gulab Jamun, otherwise known as Laalmohn in Nepali, a syrupy-sweet dish, popular in Nepal and India and is often served at traditional celebrations and weddings. There would be many family and national celebrations and festivals growing up, where the family would cook together and share special meals. Suman’s younger brother went on to pursue a career in hospitality, inspired by their many hours cooking together as a family.

   Suman continues to apply his culinary qualifications and skills in his skilled occupation as Chef within the hospitality industry and within his own life, he continues to cook traditional Nepalese dishes on a daily basis.

   Business Need and Approved Nomination

   The Applicant’s employer, DINNERPLAIN.COM Pty Ltd T/A Ginger Baker Bar and Café (Ginger Baker), have employed the applicant since 10 January, 2017, supporting his ongoing employment for over 6 ½ years. His employer, business owner, Monique Hoedemaker, has attested to the ongoing genuine need to employ Suman in his skilled occupation of Chef. The business has successfully nominated the Applicant, through the Employer Nominated program and wishes to retain the applicants’ skills and expertise within their business, to ensure continuity within the kitchen and continue to contribute to their post COVID-19 recovery and growth.

   The employer supports that on 15 March, 2019, there was no doubt that the Applicant possessed the necessary skills, qualifications and experience to undertake the position of Chef within the Ginger Baker Bar and café. By this date he had already completed two years and 2 months of employment with the organisation and was highly competent in his position. The company has attested to highly valuing the Applicants skills, experience, passion and dedication to his trade and the business. Suman has continued to grow in his occupation, gaining further skills and experience and taking on additional responsibilities. He currently holds the position of Head Chef and manages the kitchen brigade team, which incorporates chefs, cooks and kitchen hands.

   The company letter of support highlights how integral the Applicant is to providing continuity and how he has successfully trained a highly skilled and reliable kitchen team, which is instrumental in running a successful hospitality business. Due to skills shortages all staff operate on a 5 day straight shift, with a strategic plan to reopen 7 days a week, once they can fully staff the dining and kitchen operations. It is a challenging time for the business, as they focus on recovery post COVID-19 restrictions and closures and look towards rebuilding and growing there service offering. Suman is a senior member of the team and will be integral to their ongoing strategic plan. Should he not be granted a visa, due to the skill shortage of Head Chefs, the business and existing staff would struggle to maintain current trading hours and service offerings, leading to reduced turnover and being unable to operate the kitchen on an ongoing basis, thus leading to a loss of jobs.

   On 20 September, 2019 the nomination on behalf of DINNERPLAIN.COM Pty Ltd nominating Suman Kandel was approved as having met sub-regulation 5.19(9) for Direct Entry Stream, supporting that there was a genuine need for a chef to be employed under direct control of the nominator⁶. Paragraph 5.19(12)(f) of the Regulations provides that the position be approved by the Regional Certifying Body (RCB) further supporting the assessed need for this skilled occupation within the regional area of Bright for the nominating company.

   Skills Shortages in Regional Victoria

   The Applicant has been employed by Ginger Baker since January 2017 in Bright, regional Victoria, which is experiencing severe skills shortages for cooks and chefs. The purpose of the RSMS visa program, is to enable nominating employers to meet their business requirements by filling these skilled shortages with overseas skilled, qualified and experienced workers, such as Suman Kandel. The occupation of Chef is listed on the Medium to Long Term Skilled Occupation List (MLTSSL), and the Priority Migration Skilled Occupation List (PMSOL) where it is one of only 44 occupations, identified as critical to support Australia’s recovery following COVID-19.

   Skills shortages, particularly in hospitality within regional Victoria are given weight by the Tribunal, as a factor in favour of exercising discretion, as outlined in the matter of Kaur stating:

   “other factors in favour of exercising the discretion not to cancel the applicant’s visa included that the purpose of her travel to, and stay in, Australia, was to seek employment and meet shortages in the Australian labour market; in particular, the hospitality industry, which had documented shortages..”.⁷

   A decrease in skilled migration due to the closure of international borders, according to the Restaurant and Catering Industry Association (RC&A) has meant that Australia missed out on an entire wave of skilled migrants.⁸ According to OneHourOut, Melbourne numerous restaurant owners are struggling with staffing shortages and have noted the direct correlation between COVID-19 border closures and the staffing crisis and extended visa processing times.

   The skill shortage of chefs is not limited to regional Victoria, Melbourne restaurant owners are also struggling, with one Melbourne restaurant operator flying to Dubai to recruit 30 chefs, due to the lack of local talent and a slow influx of migrants.⁹

   Re-establishing Life in Nepal

   Should the Applicant be required to re-establish himself in Nepal, despite having culinary skills and experience in Australia cuisine, he would lack the ongoing experience in Nepalese culinary skills to undertake a Head Chef position, which he has worked so hard to achieve in Australia. In addition to this the emotional impact of relocation cannot be ignored, the Applicant has resided in Australia for approximately 8 years, he has a strong network of friends, he has a strong connection to the regional community of Bright and has established a life and is settled in Australia.

   ISSUES

   The issues arising in this review are as follows:

   ·Does the Applicant have the necessary qualifications to undertake his skilled occupation of Chef?

   ·Does the Applicant have the necessary experience to undertake his skilled occupation of Chef?

   Qualifications

   Suman Kandel holds as positive skills assessment, issued 24 July, 2020, supporting that as of this date he had the necessary skills, experience and qualifications to meet the legislative requirements to undertake the skilled occupation of Chef. He also holds a Certificate IV in Commercial Cookery (RPL) dated January, 2019 and a Certificate IV in Commercial Cookery (through coursework) dated December 2019.

   To meet schedule 2 of the Migration Regulations 1994¹⁰at the time of application, the Applicant must have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

   ANZSCO prescribes the qualifications for the skilled occupation of Chef, ANZSCO 351311, in Australia as:

   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

   Despite holding a Certificate IV obtained through RPL at the time of application, between this date (15 March, 2019) and the award date of Certificate IV in Commercial Cookery (17 December, 2019), a period of approximately 9 months, it can be argued that the Applicant already had the necessary skills to undertake the position, despite not having achieved a further 3 years experience. The RPL obtained in January 2019, comprised of an interview and detailed requirements to support the Applicants skills and experience to undertake the skilled occupation of Chef. The Victorian College of Vocational Excellence made an assessment taking into account detailed work references, letters of support, performance appraisals, photographs and assessments to support that the Applicant had the competencies required to achieve the qualification of a Certificate IV in Commercial Cookery.

   The Applicant can also attest to 8 years and 1 month part-time work experience, based on a part-time weighting of 50%, as outlined below, he can also meet the three years of relevant work experience prescribed in ANZSCO.

   In response to the issue arising, the Applicant can indeed show that he had the required skills and qualifications to undertake his skilled occupation of Chef at the time of application, in light of the information provided by the employer, having already tested his culinary skills in the nominated work environment for in excess of two years. The employer has continued to employ the Applicant for a further three years and promote him to take on more responsibilities due to his skills attained through his qualifications and experience, along with his contribution to the business and dedication to his profession.

   Formally as of December 2019, the applicant achieved a Certificate IV, through course work and assessments, to support that he already had these skills on 15 March, 2019 at the time of application, despite only evidencing a Certificate III and IV achieved through RPL at the time of application.

   Experience

   To meet schedule 2 of the Migration Regulations 1994,¹¹ at the time of application, the Applicant required at least 3 years employment on a full-time basis and at the level of skill required for the occupation, in the absence of an Australian qualification.

   At the time of application, the Applicant held an Australian qualification, assessed by the delegate as not meeting the legislative requirements.

   On 15 March 2019, the Applicant had attained the following experience:

   ·Bhramathani Food Produce: 2011 – December 2013 | Produce Manager | 3 years part-time

   ·Royce Hotel: 21 January 2014 – December 2016 | Chef | 2yrs 11 months part-time

   ·Belle’s Diner: 3 September, 2014 – 1 April, 2015 | Cook and Chef | 4 months part-time

   ·Arbory Pty Ltd: 13 April, 2015 – 2 August, 2015 | Chef | 7 months part-time

   ·1961CoffeeHead: 15 August 2016 – 12 November, 2016 | Chef | 3 months part-time)*

   ·Ginger Baker Wine Bar and Café 10 January, 2017 – 15 March, 2019 | 2 years 2 months part-time

   *Note: concurrent employment

   Total experience at the time of application accounts for 8 years and 1 month from the information provided. Policy allows for part-time work, which can be calculated pro-rata at a 50% full-time load.¹² The applicant can meet the requirement of 3 years equivalent full-time work experience, as he has attained, 4 years full- time equivalent, in excess of 6 years relevant part-time work. This can be supported by the provided PAYG payment summaries from 2014 to current.

   Between the date of application and today the Applicant has gained a further 9 months part-time and 2 years and 10 months full-time experience. His total experience amounts to over 7 years full-time relevant work experience.

   The delegate stated “The visa application detailed various periods of claimed intermittent employment with a number of employers…” and that “No verifiable evidence was provided in relation to the claimed periods of employment”.¹³

   To support the declared period of employment, the following verifiable evidence is provided:

Employer	Superannuation HOSTPLUS	ATO Income Statements/PAY G	Other Evidence of Salary/Employment
Royce on St Kilda Road	HOSTPLUS Statements: 01/072014 – 31/12/2014 01/01/2015 - 30/06/2015 01/07/2015 - 31/12/2015 01/01/2016 - 30/06/2016 01/07/2016 – 31/12/2016 01/01/2017 – 30/06/2017	PAYG 2014/2015/2016	Payment Summary Commonwealth Bank Statement Employment Reference Resume
Belle’s Diner (Trustee For Toy Tiger)	HOSTPLUS Statements: 01/01/2016 - 30/06/2016	PAYG 2015	Commonwealth Bank Statement Reference requested Resume
Arbory Bar & Eatery (The Trustee for RAS Hotel Trust & The Trustee for TDB Hotel Trust)	HOSTPLUS Statements: 01/01/2016 - 30/06/2016	PAYG 2015/2016	Commonwealth Bank Statement Resume
1961CoffeeHead (Manthra Pty Ltd)	PAYG 2017	Reference requested Resume
Ginger Baker (DINNERPLAIN.COM Pty Ltd)	HOSTPLUS Statements: 01/01/2017 – 30/06/2017 01/07/2017 – 31/12/2017 01/01/2018 – 30/06/2018 01/07/2018 – 31/12/2018 01/01/2019 – 30/06/2019 01/07/2019 – 31/12/2019 01/01/2020 – 30/06/2020 01/07/2020 – 31/12/2020 01/01/2021 – 30/06/2021 Account Balance: 13/10/2022	PAYG 2017/2018/2019 ATO Income Statements: 2019-2020 2020-2021 2021-2022	Commonwealth Bank Statement Payment Summary Contract of Employment commencing 01/01/2021 Employment Reference from 07/12/2016 – 01/12/2018 Position Description Organisational Chart Resume Letter of support requested

Based on the extensive supporting evidence, the Applicant can show he does indeed meet the experience requirements at the time of application, mostly on a part-time basis, whilst holding a student visa to meet condition 8105 and working 40 hours a fortnight, excluding periods not studying.

The Applicant’s current employer has supported his ongoing employment for over 6 ½ years. His employer strongly endorses his skills, qualifications and experience, promoting him from a Junior Chef to his current position heading the kitchen brigade as the Head Chef, further attesting to his skills, qualifications and experience to undertake his skilled occupation of Chef.

CONCLUSION

The Applicant has had a passion for cooking since childhood, which has spanned the last 20 years of his life, learning culinary skills and mastering many techniques in the kitchen. Since January 2014 he has worked in the hospitality sector, working through the ranks applying his skills and qualifications to gain further experience. His dedication and hard work has been rewarded with increased responsibility, attaining his current position as Head Chef, with a total of 6 years and 2 months full-time equivalent culinary experience at the time of application, which now amounts to over 7 years.

The Applicant is highly skilled, experienced and qualified within his skilled occupation of Chef, supported by over 11 years of relevant work experience, a Certificate IV in Commercial Cookery in 2019 and a positive skills assessment in 2020, supporting his ability to successfully meet the current legislative requirements to apply for a skilled visa.

The nominating company lodged and was granted a nomination in relation to the Applicant on 20 September, 2019, supporting the genuine need for the position. The company continues to support the nomination of the Applicant, who is instrumental to the ongoing profitability and success of their business. Should Suman Kandel not be granted this visa, the business would experience extreme hardship in finding a suitable skilled, experienced and qualified Head Chef to replace due to the current skills shortage, the impact on the business and existing employees would be significant. Not discounting the emotional and financial impact on the Applicant.

The Tribunal is urged to consider all evidence presented in relation to the Applicants skills, qualifications and experience as a highly regarded and valued Chef within regional Victoria. Currently filling a regional position in a skilled occupation supporting a regional employer recovering from two years of COVID-19 restrictions, striving to get back on track financially. The occupation of Chef is not only on the MLTSSL but also on the PMSOL and is integral in supporting the national economic recovery from COVID-19 in the hospitality sector.

For the reasons outlined above, the Applicant requests the Tribunal to exercise power to set aside the Delegate’s decision and substitute a new decision to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

…

1. The supporting documents are as described in the agent’s submissions. In particular, the reference letter from the applicant’s nominating employer dated 1 December 2018 makes the following points:

   …

   This letter is to certify that Suman Kandel is employed as a chef on a part time basis (20 hours per week), by Ginger Baker Wine Bar & Café (Dinnerplain.com Pty Ltd). He commenced his employment on the 7th December 2016.

   His duties for this role are:

   • Prepare, cook and serve dishes for service

   • Receive and store kitchen supplies

   • Food ordering and stock rotation

   • Store food supplies in correct temperatures and storage areas and record this process as required by law

   • Assist with training of new staff members in the preparation and storage of all foods according to the relevant health regulations

   • Clean and maintain kitchen area

   • Ensure the correct ingredients are used for each dish to maintain our high food standards

   • Maintain hygiene and safety requirements for both food and equipment in our kitchen

   • Follow cleaning schedules

   • Maintain our teams high standards and positive working environment

   Suman is a hard working team member, loyal, punctual, reliable and is an honest employee. He is very dedicated to his role and is a valuable member of our team

   …

2. On 21 and 24 October 2022, the applicant provided references from his current employer, Ginger Baker, and his former employer, the Royce Hotel.

3. In her reference dated 18 October 2022, Ms Monique Hoedemaker, General Manager and co-owner of Ginger Baker, states:

   …

   DINNER PLAIN.COM PTY LTD, currently employs Suman Kandel in the skilled occupation of Chef (ANZSCO 351311), in the position of Head Chef within their premises registered as Ginger Baker Café, 127 Gavan Street, Bright VIC 3741.

   The Ginger Baker Cafe is positioned alongside the Ovens River and enjoys a prime location set amongst a backdrop that includes natural waterfalls and elm trees in the small regional town of Bright in Victoria’s High Country.

   Bright is a small country town with a population of approximately 2,400 people, we have a strong community spirit and during the challenges we have experienced in Victoria during the COVID-19 pandemic, our ability to bring together our community to meet and eat has been a priority. We have an excellent reputation for high quality food and service, which is testament to the high quality of our kitchen brigade and our local support.

   The cafe is open for breakfast and lunch Friday - Tuesday 7:30am – 2:30pm. Due to extreme staff shortages we are currently closed Wednesdays and Thursdays all day and no longer open for dinner service on Friday and Saturday. Our service offering is providing local hospitality in an eclectic and relaxed environment, serving amazing coffee, delicious meals and share plates and beverages, sourced locally when possible and served with love. We also host functions and events. Our website: gingerbakercafe.com.au

   Organisational Chart

   A detailed organisational chart showing how the nominated position fits into the staffing structure of the business and including full names of employees and positions held has been provided.

   As a busy wine bar and cafe, with high turnover, it has been difficult for our organisation to recruit and maintain experienced and hard working individuals locally, to meet our very high standards. The business currently has four full-time employees, with the remaining being myself the business owner and three front of house working casually to run our bar and restaurant operations. Due to COVID-19 restrictions and shutdowns, it has not been possible to guarantee work for these staff, hence the nature of their casual work arrangement.

   Position Description

   The position description outlines the nature of the position, the duties that will be undertaken, along with the skills and experience we require for the individual to fulfil the duties of the position to our high company standards.

   Support for the Position

   Suman Kandel has worked in the skilled occupation of Chef within our business since 7 December, 2016, initially on a part-time basis working up to 40 hours a fortnight to meet his visa requirements. Following completion of his study in December 2019 he has worked as a Chef full-time in our business.

   We nominated Suman in the skilled occupation of Chef through the Employer Nominated Regional Scheme on 14 March, 2019, the nomination was granted on 20 September, 2019, supporting our genuine need for this position. At the time of his visa application on 15 March, 2019, Suman had been employed with us for 2 years and 3 months, he was highly skilled, experienced and qualified in his trade and showed exceptional culinary skills, we were in no doubt that he was extremely capable to undertake the skilled occupation of Chef. We had no reservations in nominating him for an ongoing permanent position.

   The position of Head Chef is integral to our kitchen and overall business operations. Before COVID- 19 when at capacity we operated with 4 full time chefs year-round, including the Head Chef, along with 2 full-time cooks and two casual kitchen hands, who man the kitchen full-time between them, often both working during busy periods. To allow us to operate to full capacity and reopen on Wednesdays and Thursdays we would require additional Chefs and two full-time cooks.

   Despite the challenges of COVID-19, since reopening post the second lockdown we have been extremely busy at weekends and continue to see an improvement in turnover. We are struggling to support this rapid increase in local demand, due to ongoing severe skills shortages. We hope that this increase in demand will continue into the summer holiday season and that we can hire additional chefs, cooks and kitchenhands, to operate the kitchen at capacity, which will eventually allow us to return to opening 7 days a week.

   The nominated position held by Suman Kandel reports directly to Djoeke Hoedemaker. The position manages the kitchen and other Chefs during their rostered workday.

   Suman works in the skilled occupation of Chef, in the position of Head Chef, having worked for several years in the position of Chef, he took on additional responsibilities with ease and was promoted to Head Chef. In this position Suman manages the kitchen brigade, organizes the cooking, plans, prepares and capably ensures the smooth running of the kitchen, to ensure the business continues to grow and maintain our reputation within this highly competitive hospitality sector in this regional area. This position is also instrumental in providing continuity within the kitchen, Suman has successfully built a strong working relationship within the kitchen, based on trust and respect. He is also actively assisting the management team in building on their existing skills and providing his input in the recruiting process.

   Without Suman managing our kitchen operations, we will not be in a position to continue to offer our reputation for delicious and high quality food, resulting in a downturn in revenue and insufficient staff with the necessary skills to operate the kitchen and for us to run a viable business. This in turn would potentially result in business closure and job losses for all our employees.

   Having Suman at the helm of our kitchen brigade will pave the way for us to increase turnover and focus on our business growth following COVID-19, he is a dedicated and loyal employee and is passionate about food and is progressive in the kitchen with new techniques and experimenting with new concepts and recipes. It is this kind of enthusiasm heading up our kitchen that we are relying on to gain new customers and focus on our post-COVID-19 growth.

   Should you request any further information, do not hesitate in contacting me.

   …

4. The letter dated 16 October 2022 from Leigh Dundas, former Head Chef at the Royce Hotel states as follows:

   …

   I would like to confirm that Suman Kandel was employed by the Royce Hotel in the skilled occupation initially as Cook and quickly took on the responsibilities of a Chef (ANZSCO 351311), in accordance with his student visa conditions of 40 hours a fortnight during term time. At this time, I worked as the Executive Chef within the kitchen brigade, I left the Royce Hotel on 18 March 2019, currently employed as Head Chef at Chez bob Restaurant, Armadale, Victoria.

   Suman was employed by the company from 21 January 2014 to December 2016. I believed him to be a skilled Chef who worked well within the team, he has excellent communication skills and was a valued member of the team, I would not hesitate in employing him again within my kitchen brigade.

   …

5. The applicant appeared before the Tribunal by videoconference on 25 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Monique Hoedemaker, the applicant’s employer, and oral submissions from the applicant’s agent, both of whom appeared by videoconference. The Tribunal was assisted by an interpreter in the English and Nepalese languages.

6. The Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant; principally, the applicant’s and employer’s residence in regional Victoria. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. On the morning of the hearing, the Tribunal received revised legal submission from the applicant’s agent. The revisions included references to work references received since the original submissions were made, and amended work experience periods for the applicant.

8. The Tribunal discussed with the applicant, his employer and the agent its preliminary view that the relevant criterion in dispute was cl.187.234(c), and that while it appeared that the applicant met cl.187.234(c)(i) and (ii) (the latter by virtue of his 6 years of part time employment experience substituting for the formal qualification listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary, being a Diploma or Associate Diploma), it appeared that he was unable to meet cl.187.234(c)(iii), which required that he had 3 years of work experience as a Chef on a full time basis, at the required skill level for that occupation. The Tribunal explained that on one view, the applicant could only count that 3 years from the date that he had at least 3 years’ relevant work experience to substitute for a Diploma (as per ANZSCO), and that it appeared that he did not have this amount of work experience as a Chef prior to applying for his visa on 15 March 2019. The Tribunal acknowledged that the applicant had 2 x Certificate IVs in Commercial Cookery (1 obtained prior to his visa application via RPL, which the Tribunal accepted was valid, and 1 obtained through formal study after he made his visa application) but noted that neither of these qualifications was a Diploma, stated in ANZSCO to be the relevant skill level for the occupation of Chef in Australia. Similarly, the positive skills assessment as a Chef obtained by the applicant from TRA dated 24 July 2020 was obtained after he made his visa application. The Tribunal noted that the wording of cl.187.234 very specifically required that the requirements of (c)(ii) and (iii) had been met at the time that the applicant made his visa application (in this case, 15 March 2019).

9. The applicant told the Tribunal that he had hoped to continue his studies by undertaking a Diploma and then a Bachelor degree in Hospitality Management, but after he moved to Bright to take up the nominated role with Ginger Baker, it was too difficult for him to combine this with studying in Melbourne, and there was nowhere nearer offering these courses. The applicant told the Tribunal that he had been in Australia in 2013 and although his original study courses were not hospitality-related, his work experience had consistently been in commercial kitchens, and he always intended to be a Chef, an ambition he had now achieved. The applicant further stated that he was very happy living and working in Bright, which he had done since December 2016, as it reminded him of his home. He told the Tribunal that if he were now to have to return to Nepal, he would not have the kind of work opportunities as a Chef that he had in Australia.

10. Ms Hoedemaker told the Tribunal that the applicant was a valued employee and fantastic team member. She confirmed that he had been working at Ginger Baker as a Chef since January 2017, and had been promoted to Head Chef since then in recognition of his skills and commitment. In response to the Tribunal’s query, Ms Hoedemaker said that they recruited the applicant when they were looking for an experienced Chef, and based on his formal qualifications and previous work experience, they were confident he could take on the role of Chef on a part time basis (as was then needed). Since being employed, the applicant had quickly demonstrated that he was a hardworking, loyal and skilled Chef.

11. In response to the Tribunal’s query, Ms Hoedemaker said at the time that the business nominated the applicant, they were satisfied that he was a fully qualified Chef. She told the Tribunal that when recruiting staff, they looked at a person’s previous experience as the best guide to their skills, although they also looked at whether they had formal qualifications in Commercial Cooking and/or Hospitality. She estimated that experience was about 60% of what they looked for, and formal qualifications was about 40%, given that people could hold formal qualifications but not have much practical experience.

12. Ms Hoedemaker told the Tribunal that at present, the business had 3 Chefs, and needed more. However, the skills shortage in the hospitality industry in Australia remained critical. Ms Hoedemaker noted that this was especially so in regional areas, such as Bright, where employers not only faced difficulties attracting people to apply, but applicants faced significant difficulties in finding accommodation. She told the Tribunal that there was virtually no rental accommodation available within a 25 km radius of Bright at the present time, which was a significant barrier to recruiting new staff,  as was the general shortage of suitably qualified and experienced staff throughout Australia. Ms Hoedemaker said that this was one of the reasons that they valued the applicant so much. She stated the business had been, and was, reliant on him to come out of the downturn caused by the COVID19 pandemic and its associated lockdowns in Victoria. Ms Hoedemaker said that if the applicant was not able to continue in his role as Head Chef, it would be devastating to the business, particularly as they were coming up to their busiest period (between Melbourne Cup Day and Easter, including the Bright Spring Festival). She told the Tribunal that the business already had restricted trading hours due to staff shortages, but to lose the applicant would exacerbate this significantly, and she did not want to think about this possibility. She added that the COVID19 pandemic had been emotionally and financially challenging but they were now in the process of rebuilding. To lose the applicant would jeopardise this.

1. The applicant’s agent submitted that the applicant did have all the requirements to work at the skill level of a Chef at the time that he made his visa application, albeit some formal qualifications/skills assessments were obtained after he made his application. She noted that, for the purposes of his nominating employer, he was assessed as having the skills in December 2016 to be offered a job as an experienced Chef. She reiterated the points made by Ms Hoedemaker about the severe impact it would have on the nominating employer’s business if the applicant was unable to continue as Head Chef and argued that this should be given weight in the Tribunal’s considerations. After some discussion, the Tribunal agreed to defer its decision for a period after the hearing to enable the agent to make additional legal submissions in relation to whether the applicant was able to meet cl.187.234(c)(iii). The Tribunal indicated that it expected to make its decision within 2 to 4 weeks of receiving the additional submissions.

2. On 9 November 2022, the Tribunal received the following email from the applicant’s agent:

   …

   I am writing in relation to an application for review by the Migration and Refugee Division of the AAT, hearing date 25, October, 2022. Thank you for the opportunity to provide a post-hearing submission.

   Please find attached the following supporting documents:

   ·AAT post-hearing submission

   ·Evidence of Experience

   oStatutory Declaration - Suman Kandel

   oOriginal Reference and Translation

   §Bhramasthani Food Produce

   Please find attached the following supporting documents:

   oUpdated Reference to support periods of full-time work during holidays

   §Ginger Baker

   The following supporting documents have been requested and awaiting receipt:

   ·Updated References Requested to support periods of full-time work during holidays

   oRoyce Hotel

   Please do not hesitate in contacting me should you have any questions.

   …

3. The agent’s submissions were as follows:

   …

   The Applicant seeks review of a 12 August, 2019 decision of a delegate of the Minister for Home Affairs (Delegate) to refuse to grant him a Regional Employer Nomination (Permanent) (Class RN) visa (RSMS)1.

   A hearing before the Administrative Appeals Tribunal (Tribunal) was held on 25 October, 2022, during which the member raised a concerns that cl.187.234(c)(iii) could not be met by the Applicant. The Applicant would like to provide further clarification on his ability to meet cl.187.234(c)(iii).

   Experience to meet cl.187.234(c)(iii)

   The Applicant has provided verifiable evidence to the Tribunal of his claimed periods of employment as at the time of application on 15 March 2019, to support in excess of 10 years of relevant experience as follows:

   • Bhramasthani Food Produce: 15 April 2009 – 2 December 2013 | Produce Manager | 55 months

   • Royce Hotel: 21 January 2014 – December 2016 | Chef | 35 months

   • Belle’s Diner: 3 September, 2014 – 1 April, 2015 | Cook and Chef | 7 months*

   • Arbory Pty Ltd: 01 July, 2015 – 16 August, 2015 | Chef | 1 ½ months*

   • 1961CoffeeHead: 15 August 2016 – 12 November, 2016 | Chef | 3 months *

   • Ginger Baker Wine Bar and Café 10 January, 2017 – 15 March, 2019 | 26 months

   *concurrent to Royce Hotel experience

   The Applicants previous employers, Bramashani Food Produce, Royce Hotel and the Ginger Baker have provided updated references, specifically detailing the number of months where the Applicant undertook full[1]time work, which previous references did not detail. The applicant has also provided a statutory declaration to support these periods of full-time work…

   To meet schedule 2 of the Migration Regulations 1994,2 at the time of application, the Applicant was required to meet the following requirements:

   • 187.234(c)(ii) the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation;

   • 187.234(c)(iii) the applicant has 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.

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

   According to ANZSCO in the absence of a AQF Associate Degree, Advanced Diploma or Diploma, at least 3 years relevant experience can be used to substitute for a formal qualification. Between 2009 and 2014 the applicant obtained relevant experience as a Produce Manager and a Chef for in excess of 3 years, as supported by references from Bhramasthani Food Produce and Royce Hotel. This experience as a Produce Manager was relevant to his skilled occupation, as the Applicant learnt about fresh produce, was knowledgeable in how to store and select produce and worked with hospitality customers, which provided insight into how such establishments operated. Whilst working at the Royce Hotel, he worked directly within his skilled occupation as Chef.

   As the Applicant had more than 3 years experience at the time of application, this would have provided him with a level of skill that would substitute for the formal qualification by the time of application on 15 March 2019.

   187.234(c)(iii) the applicant has 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.

   Between 2014 and March 2019 the Applicant worked as a Chef and can show he gained in excess of 3 years experience directly in his skilled occupation and at the level of skill required for the occupation. The level of skill required to work as a Chef at the time of application on 15 March 2019, has been supported by his employer Ginger Baker, both in written references and verbally at the Tribunal hearing on 25 October, 2022.

   The Applicant can support his experience was at the level of skill required for the occupation by the following supporting references from The Royce Hotel and the Ginger Baker, the latter continues to support his ongoing employment after 5 years and 10 months. Both employers support that he worked as a fully qualified and experienced chef and had attained practical experience before joining their establishement. His employer strongly endorses his skills, qualifications and experience, promoting him from a Junior Chef to his current position heading the kitchen brigade as the Head Chef, further attesting to his skills, qualifications and experience to undertake his skilled occupation of Chef and his progression in his trade over the past 5 years and 10 months.

   AAT Case Law also addresses the question of whether the applicant’s ANZSCO required experience, when substituting a formal qualification is required to be prior to the 3 years full-time employment criterion or whether this experience can occur concurrently? The matter, Milocani (Migration) [2022] AATA 3666 (14 September 2022), states:

   “The Department’s policy provides guidance in relation to this question: “... the experience requirement under 187.234(c)(iii) can be served concurrently when work experience substitutes for the formal qualifications as per ANZSCO under 187.234(c )(ii)...”. The Tribunal has no reason to stray from the Department’s policy position in this matter and is satisfied that the three years of full-time work experience meets the requirements of cl 187.234(c)(iii).”

   Policy supports that the Applicant can use his in excess of 6 years of full-time experience, of which over 3 years (38 ½ months) was working directly in his skilled occupation. In line with case law precedent this period of experience can be used to concurrently meet 187.234(c)(ii) and 187.234(c)(iii) according to policy. Thus supporting that only 3 years full-time work experience is required.

   CONCLUSION

   Based on the extensive supporting evidence, the Applicant can show he does indeed meet the experience requirements at the time of application of 3 years of relevant experience and 3 years full-time experience at the level of skill required for the occupation to meet 187.234(c).

   For all the reasons outlined above, the Applicant requests the Tribunal to exercise power to remit the matter for reconsideration with a direction that the Applicant satisfies cl.187.234 for the grant of a Regional Employer Nomination (Permanent) (Class RN) visa.

   …

4. The documents described were attached and their contents are as described.

5. On 25 November 2022, the Tribunal received the following updated submissions from the applicant’s agent, noting that the total amount of relevant work experience in the original submission should have been 6.5 years, not 3.5 years.

6. 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

7. 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 ANZSCO as being necessary to perform the tasks of the occupation.

8. 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 applies in the applicant’s case, as his visa application was made on 15 March 2019.

9. 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)

10. IMMI 18/045 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.

11. 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. He 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)

12. 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).

13. IMMI 12/096 is the relevant instrument for these purposes, and the Tribunal is satisfied that it contains the applicant’s nominated occupation of Chef (ANZSCO 351411). However, the available evidence indicates that the applicant did obtain his necessary qualification for this occupation in Australia (his 3 years of work experience substituting for the formal qualification of Diploma, discussed further below).

14. 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 Chef) prior to making his subclass 187 visa application.

15. The Tribunal therefore finds that cl.187.234(b) does not apply in this case.

16. The Tribunal acknowledges that the applicant has provided to the Tribunal a positive skills assessment as a Chef issued to him by Vetassess on 24 July 2020. However, as this was obtained after the applicant made his visa application on 15 March 2019, it cannot be taken into account for the purposes of cl.187.234(b).

    Qualifications – cl.187.234(c)

17. This clause requires that:

    (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; and

    (iii) the applicant has 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.

18. As noted above, the applicant’s nominated occupation of Chef is listed in IMMI 12/096, and the applicant obtained his relevant qualification(s) in Australia (3 years of work experience in his field, substituting for formal qualifications, as discussed in the section below). Therefore cl.187.234(c)(i) is met.

    Qualifications

19. ANZSCO lists the following qualifications as necessary to perform the tasks of a Chef in Australia (Tribunal emphasis in underlined font):

    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:

    • NZQF 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:

    • 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

    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

20. The Tribunal has reviewed the Department’s file and notes that the applicant’s Certificate III was issued to the applicant by the Victorian College of Vocational Excellence on 4 January 2019 and his Certificate IV was issued to him by the same provider on 7 January 2019. In both cases, the accompanying letters from the Victorian College of Vocational Excellence indicate that the qualifications were awarded to the applicant through RPL. It is stated that:

    …

    To assess your application, you were required to use VCVE’s proprietary RPL kit, which was used to gather evidence required for an RPL assessment. This tool kit is provided to applicants who request to be assessed as competent based on RPL.

    RPL:

    ·provides an alternative pathway to achieving a qualification without course attendance

    ·is a consultative process between with the candidate and the assessor to determine whether the candidate has acquired the requisite learning, skills and knowledge to demonstrate that they have achieved the required learning outcomes or performance criteria of the course or qualification for which the candidate is seeking

    ·identifies where appropriate additional learning experiences or training gaps need to be identified to achieve a qualification

    ·is the conduct of an assessment to confirm competency.

    VCVE has developed a process that promotes holistic and task-based assessment. It focuses on relating assessment activities to actual job tasks. The intention of this model is to streamline and simplify the process of recognising competency.

    Prior to RPL information is provided to the candidate about the assessment process. Specific advice is given to each candidate on how they can demonstrate their competence and what documentary evidence that is required to gather support for their application. Each industry has unique documents that can provide evidence of experience and competence.

    The candidate is required to provide adequate information prior to, throughout and after a training and assessment experience. The assessor, in this process, needs to be fully aware of the needs of the candidate and help them identify relevant workplace personnel who can confirm competency in the candidate.

    The focus of the VCVE streamlined holistic assessment process is to focus on demonstrated skills and knowledge and not to rely purely on documentary evidence as the main source of evidence.

    Some examples of documentary evidence that can support the process include:

    ·licences

    ·brief CV or work history

    ·certificates/results of assessment

    ·tickets held eg forklift, crane etc

    ·photographs of work undertaken

    ·diaries

    ·task sheets/job sheets

    ·log books

    ·site training records

    ·pay slips

    ·membership of relevant professional associations

    ·references/letters/third party verification reports from previous employers/supervisors

    ·industry awards

    ·performance appraisals.

    [The applicant] supplied VCVE with valid, authentic, and sufficient evidence, along with the completed Recognised Prior Learning (RPL) kit, which was then assessed by our trainer through our RPL method.

    [The applicant] has been deemed competent in the units of competency listed on their Statement of Attainment and has satisfied the requirements for the qualification of Certificate IV in Commercial Cookery.

    …

21. 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 (March 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.

22. 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 January 2023). 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.

1. However, the Tribunal finds that the applicant’s Certificate III and Certificate IV in Commercial Cookery are not qualifications listed in ANZSCO as required for the occupation of Chef in Australia. Rather, a Diploma or higher qualification is required and there is no evidence that the applicant has a qualification of this kind, whether obtained in Australia or overseas, by study or RPL. Therefore, the Tribunal finds that the applicant does not have the formal qualification(s) listed in ANZSCO for the occupation of Chef in Australia.

2. The Tribunal notes that ANZSCO states that at least 3 years of relevant experience may substitute for a formal qualification. In assessing whether the applicant meets this, the Tribunal notes that the applicant must have had at least 3 years of relevant experience prior to making the visa application on 15 March 2019, as the applicant had to meet cl.187.234(c) at the time of his visa application. The Tribunal further notes that the ANZSCO occupational description for a Chef does not specify that the 3 years of relevant experience must have been on a full time basis.

3. The Tribunal has reviewed the applicant’s relevant employment experience prior to 15 March 2019, which indicates the following:

   ·Royce Hotel: 21 January 2014 – December 2016 | Chef | 2yrs 11 months part-time

   ·Belle’s Diner: 3 September, 2014 – 1 April, 2015 | Cook and Chef | 4 months part-time

   ·Arbory Pty Ltd: 13 April, 2015 – 2 August, 2015 | Chef | 7 months part-time

   ·1961CoffeeHead: 15 August 2016 – 12 November, 2016 | Chef | 3 months part-time)*

   ·Ginger Baker Wine Bar and Café 10 January, 2017 – 15 March, 2019 | 2 years 2 months part-time

4. The Tribunal notes that the applicant has now provided documentary evidence (in the form of references from Ginger Baker and the Royce, PAYG summary statements, bank statements showing salary deposits and HOST superannuation statements showing super payments made by his employers in the relevant periods) to substantiate the above employment. The Tribunal therefore accepts the applicant’s evidence in relation to this work experience.

5. On the Tribunal’s calculations, the above amounts to approximately 75 months of part time work by the applicant prior to the date of the visa application on 15 March 2019.

6. The Tribunal notes that the relevant section of the Department’s PAM3 guidelines (as at 15 March 2019) recognised that part time work experience could potentially satisfy the ANZSCO requirement for 3 years of relevant experience (Tribunal emphasis in underlined font):

   …

   8.13.1.4 Work experience

   The ANZSCO framework provides that for certain occupations, a specific number of years of relevant experience may substitute for the formal qualifications.

   If the applicant is relying on Australian or overseas work experience to meet the skill requirement, officers must assess whether the work experience is relevant and equates to the corresponding formal qualification. The applicant may be required to submit verifiable evidence of previous work experience including appropriate references from previous employers.

   If the applicant is nominated in a trade occupation, only Australian work experience can be counted towards the two years of post-qualification work experience (where required), or as a substitute for the formal qualifications, as per ANZSCO and 187.234(c). Any overseas experience in a trade occupation cannot be used as a substitute for overseas qualifications under 187.234(b).

   The ANZSCO dictionary provides guidelines on equivalence of relevant work experience that should be applied in assessing skills based on work experience. As an example, the ANZSCO dictionary equates 3 years of relevant work experience to a formal AQF qualification for occupations at ANZSCO skill level 2.

   RSMS recognises that in addition to full-time work there now exists a range of variable employment arrangements. Citizens of numerous countries depend on multiple income earning strategies to make a living. In Australia, part-time work arrangements and variable working hours are increasingly common. This will impact on how work experience is calculated. If work experience is to be expressed in full-time terms, then for part-time workers this can be calculated pro-rata. This means that if the requirement is for 3 years of relevant full-time work experience, then where part-time work is at 50% of a full-time load, the applicant must be able to demonstrate they have worked in that occupation on a part-time basis for 6 years. If officers believe that claims of overseas work experience need to be tested, they may refer relevant work references to the appropriate overseas post for verification, under established case referral procedures. Refer to PAM3: GenGuideA - Global working - Output 1.1 - Case referral management.

   …

7. This remains the position expressed in the relevant section of the January 2023 version of PAM3.

8. As noted above, the Tribunal is satisfied that the applicant had 75 months (6 years and 3 months) of part time work prior to making his subclass 187 visa application. It is therefore satisfied that he had 3 years (when taken on a pro rata basis) of relevant experience prior to making his visa application, and that this should be taken as substituting for formal qualifications, as allowed for in ANZSCO.

9. The applicant therefore meets cl.187.234(c)(ii).

   Work experience

10. In addition to the above, the Tribunal must be satisfied that the applicant had been employed in the occupation for at least 3 years, on a full time basis, at the skill level required for the occupation, at the time he made the visa application, as per cl.187.234(c)(iii).

11. As noted above, the Tribunal is satisfied that as at 15 March 2019, the applicant had worked part time for 75 months (approximately 6 years and 3 months).

12. The Department’s PAM3 guidelines (as at 15 March 2019) provided the following on this issue:

    …

    8.12.4 Must have been employed in the nominated occupation for 3 years

    Clause 187.234(b)(vii) refers:

    At the time of application the applicant must have been employed for at least 3 years in the occupation on a full time basis and at the level of skill required for the occupation for which they have been nominated.

    The applicant must have worked full-time for at least 3 years before the date of application. Policy intends for the work experience to be recent, however the period of work does not have to be continuous, or be immediately before the visa application was made. In order for the work to qualify as full-time, the applicant should have worked for at least 35 hours per week.

    Any period of employment during which an applicant changed careers (gained employment in another occupation), was unemployed, or took extended leave without pay should be excluded when calculating the period of employment, see Periods of absence.

    The information provided by the applicant in their visa application and supporting documents will generally be sufficient to enable delegates to decide whether the applicant has worked full-time for at least 3 years. If required, delegates should seek clarification or additional documentation from the applicant before deciding whether the requirements of 186.234(b)(vii) have been satisfied.

    8.12.5 Employment in the nominated occupation

    Clauses 187.234(b)(vii) and 187.234(c)(iii) refer. The applicant must be able to demonstrate that the tasks of the occupation they performed during the required three years are the same as or closely related to the tasks of the nominated position. The tasks must have been performed to the same level of complexity and with at least the same level of responsibility. The focus should be on tasks of the occupation rather than the title.

    8.12.6 Employment at the relevant skill level

    Clauses 187.234(b)(vii) and 187.234(c)(iii) refer. Applicants need to demonstrate that they have been employed at the level of skill required for the occupation. That is, the applicant must have been employed and actively performing the duties of the nominated occupation for a period of at least 3 years after obtaining any qualifications that would allow them to work without restriction in the occupation. They must have been fully skilled to perform the duties specified for the occupation. Any periods of work performed in any occupational training capacity (for example, an apprentice, trainee or assistant) do not count towards the 3 year full-time work experience.

    8.12.7 Employment should be full time

    RSMS recognises that, in addition to full-time work, there now exists a range of variable employment arrangements. Citizens of numerous countries depend on multiple income earning strategies to make a living. In Australia, part-time work arrangements and variable working hours are increasingly common. This will impact on how work experience is calculated. If work experience is to be expressed in full-time terms, for part-time workers this can be calculated pro-rata. For example, if the requirement is for 3 years of relevant full-time work experience, if part-time work is at 50% of a full-time load, the applicant must be able to demonstrate they have worked in that occupation on a part-time basis for 6 years

    The work experience requirement can be satisfied by any combination of overseas and Australian employment.

    If a delegate believes that claims of overseas employment experience need to be tested, they may refer relevant work references to the appropriate overseas post for verification, under established case referral procedures

    …

13. Again, this appears to be the position expressed in the relevant section of PAM3 as at January 2023.

14. The Tribunal has already found that the applicant had approximately 6 years and 3 months of work experience on a part time basis in positions titled Chef at the time he made his visa application on 15 March 2019. The issue is at what point during this period can the applicant be said to have been working at the skill level required for this occupation, and how much of this experience can be counted for the purposes of cl.187.234(c)(iii)?

15. (The Tribunal has not counted the applicant’s claimed work experience in Nepal with Bhramathani Food Produce from 2011 to December 2013 as a Produce Manager (part-time) as he was not working as a Chef in this job and the duties of the Produce Manager do not appear to be those principally associated with a Chef).

16. As previously noted, the skill level listed for a Chef in ANZSCO is a Diploma or higher qualification, or at least 3 years of relevant work experience. This suggests that for the applicant, only employment post being awarded a Diploma or having at least 3 years of relevant experience could be counted for the purposes of cl.187.234(c)(iii), as it is only at that point that he might be said to be working at the skill level of a Chef.

17. It is not disputed that the applicant does not hold a Diploma.

18. While the current PAM3 policy is silent on how the work experience in (ii) and the period of employment in (iii) are to be read, the version of PAM3 issued in 2019 states that the work experience requirements under cl 187.234 can be served concurrently. It reads:

    …the work experience requirement under 187.234(c)(iii) can be served concurrently when work experience substitutes for the formal qualifications as per ANZSCO under 187.234(c)(ii), In other words, in cases where there is 'overlap' between regulations 187.234(c)(ii) and 187.234(c)(iii), the applicant will only require three years of work experience rather than six years, or five years of work experience rather than eight years, depending on the occupation and the relevant ANZSCO provision.

19. The above policy is what was referred to in the case of Milocani which was provided by the applicant’s agent. That policy was current at the time of application in that matter, but has since been superseded - as noted above, the current version of PAM3 provides no guidance on this specific issue.

20. The Tribunal has reviewed the earlier Tribunal (differently constituted) decision in Milocani (Migration) [2022] AATA 3666 (14 September 2022), and notes that it involved a Dance Teacher who had 5 years of experience in their field overseas prior to making their subclass 187 visa application, but who did not have the formal qualifications listed in the ANZSCO dictionary for that occupation. The Tribunal in that case found that this work experience amounted to the 5 years required in ANZSCO to substitute for a formal qualification (and thus met cl.187.234(c)(ii), and then posed the question of ‘whether the applicant's 3 years full-time employment was at the level of skill required for the occupation. Does the applicant need to have 5 years' experience to meet the ANZSCO Skill Level 1 requirement prior to the 3 years full-time employment criterion, or can they both occur concurrently?’ The Tribunal went on to conclude that:

    “The Department’s policy provides guidance in relation to this question: “... the experience requirement under 187.234(c)(iii) can be served concurrently when work experience substitutes for the formal qualifications as per ANZSCO under 187.234(c )(ii)...”. The Tribunal has no reason to stray from the Department’s policy position in this matter and is satisfied that the three years of full-time work experience meets the requirements of cl 187.234(c )(iii).”

21. Tribunal decisions do not have precedential value on other Tribunal Members, although they may be relevant to have regard to, in order to foster consistency where possible. In this case, as noted above, the policy referred to by the Tribunal Member in Milocani no longer specifically states that work experience for the purposes of cl.187.234(c)(ii) and (iii) can be considered concurrently. PAM3 is currently silent on this issue.

22. The Tribunal nevertheless considers it appropriate in this case to take a similar approach to that set out in the previous version of PAM3 and in Milocani, for the following reasons:

    ·at the time of his visa application in March 2019, the applicant had over 5 years of employment experience as a Cook or Chef, including working as a Chef from 21 January 2014 for Royce Hotel and from 10 January 2017 to date for his nominating employer, initially as a Chef and now as Head Chef;

    ·the written employment references from these employers, and the oral evidence of Ms Hoedemaker at hearing, clearly demonstrate that the applicant was performing at the skill level required of a Chef at the time that he was employed by them, and that they considered him to have the skills of a Chef, as set out in ANZSCO, when he was hired, and was not learning on the job; and

    ·the occupation of Chef is one in which practical experience is valued at least as highly, if not more so, than formal qualifications, by Australian employers.

23. The Tribunal finds that the applicant was working as a Chef at the skill level required for this occupation from January 2014, a period of approximately 5 years and 3 months as at the time of his visa application in March 2019. Although this employment was undertaken on a part time basis, the Tribunal is satisfied that taken on a pro rata basis, this should be taken to be equivalent of 3 years of full time work in his occupation at the required skill level, given that the applicant was permitted to work more than 20 weeks during his semester breaks while holding a student visa.

24. Accordingly, the Tribunal finds that the applicant meets cl.187.234(c)(iii). He therefore satisfies cl.187.234(c) and thus meets cl.187.234 as a whole.

25. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    decision

26. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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

    Extract from Part 187 of Schedule 2 to the Migration Regulations (1994)

    (as at 15 March 2019):

    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;

    (vii)  the applicant has 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; or

    (c)  all of the following requirements were met:

    (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;

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

    (iii)  the applicant has 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.