Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1404
•24 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1404
File number: MLG 89 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 24 June 2021 Catchwords: MIGRATION – Temporary Graduate visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a relevant consideration – whether the Tribunal failed to consider material “provided” by the applicant – whether the Tribunal incorrectly applied the law – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), s 476
Migration Regulations 1994 (Cth), regs 1.03 and 1.15I, cll 485.221 and 485.222 of Schedule 2
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Home Affairs [2020] FCA 203
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 62 Date of hearing: 22 June 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Flynn Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 89 of 2019 BETWEEN: MUKTAFE REZA KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
The applicant is a citizen of Bangladesh. He arrived in Australia on a student visa in November 2012 (Court Book (“CB”) 24).
On 29 September 2016, the applicant applied for a Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 16-53). The applicant indicated that his nominated occupation was as a chef (CB 25).
On 17 December 2016, the then Department of Immigration & Border Protection requested that the applicant provide further information in the form of a completion letter regarding his Australian qualifications (CB 59-63). The applicant responded on 19 December 2019 with a letter headed “TRA Provisional Skills Assessment Application Result” (CB 67).
On 13 January 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 72-74). The delegate found that the applicant did not meet cl 485.222 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the relevant qualification (a Diploma in Management) was not closely related to his nominated occupation of “Chef”.
The applicant applied for review of the delegate’s decision by the Administrative Appeals Tribunal (the “Tribunal”) on 19 January 2017 (CB 75-76).
The applicant attended a hearing before the Tribunal on 17 December 2018 (CB 179-181). Numerous supporting documents were provided. These included proposed menu items for a café, a provisional letter of offer from a café, employment documents, academic documents and country information (CB 91-178).
On 18 December 2018, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa (CB 186-191).
On 11 January 2019, the applicant applied to this Court for judicial review of the Tribunal’s decision. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal fell into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is six pages long and spans 24 paragraphs.
The Tribunal began by identifying the type of visa that is under review. It summarised the delegate’s decision and confirmed that the applicant had attended a hearing before the Tribunal (at [1]-[3]).
The Tribunal explained that the applicant was required to have satisfied the “Australian study requirement” in the six months prior to the day that he applied for the visa and that the qualification must be closely related to his nominated skilled occupation (at [4]). It was also noted that a “skilled occupation” is an occupation which accords with the matters in regs 1.03 and 1.15I of the Regulations (at [5]).
The Tribunal noted that the applicant had indicated that he had completed the following qualifications (at [6]):
11/12 – 11/13 Cert III in Hospitality (Commercial Cookery)
11/13 – 05/14 Cert III in Patisserie
07/14 – 11/14 Cert IV in Hospitality (Commercial Cookery)
02/15 – 06/15 Diploma of Hospitality
09/15 – 09/16 Diploma of Management
The Tribunal identified that the applicant had nominated the occupation of “chef” and had provided evidence of a skills assessment and evidence of study (at [7]).
The Tribunal then explained that the only course that the applicant had completed in the six months immediately prior to applying for the visa was a “Diploma of Management” and that the Tribunal had to be satisfied that that course was “closely related” to his nominated occupation of a “chef” (at [8]).
The Tribunal noted that, a few hours prior to the Tribunal hearing, the applicant had sent through a large bundle of documents. It explained that neither the applicant nor his representative had provided an explanation about the relevance of the documents (at [9]).
The Tribunal continued:
10. The applicant provided to the Tribunal an offer of employment from Driftwood, located in Dhaka and the employment contract refer to the applicant’s employment commencing in September 2020. The Tribunal has considerable concerns about the authenticity of such documents as the Tribunal is not convinced that an operational business would wait for nearly two years to employ a chef to operate its kitchen. However, even assuming that the applicant intends to work for that business, it is unclear how the applicant’s employment in Bangladesh, and the nature of his duties and responsibilities, could establish the close relationship between the applicant’s qualifications and his nominated occupation. Following the hearing, the applicant provided to the Tribunal general information about the hospitality industry and the broader situation in Bangladesh, including economic reports. The Tribunal acknowledges that evidence but its relevance is also unclear. At best, it may establish that the applicant will be gainfully employed in his home country. It is difficult to see how the applicant’s situation, the nature of his future employment or the general country information can establish the close relationship between the applicant’s qualification and the nominated skilled occupation.
11. In oral evidence to the Tribunal the applicant states that being a chef is not only about cooking but also about managing the entire kitchen. The applicant states that he needs management skills so that he can supervise people working under him and ensure that everyone adheres to company policies. He also needs to manage the human resource aspects, including visa issues if he hires staff from overseas, hiring and firing. He needs to supervise food safety and OH&S. The applicant states that as a head chef, he would be in charge of these responsibilities. The applicant states that as a chef, he must have a good relationship with food supplies and run the kitchen effectively. He needs to manage the work and ensure that everything runs efficiently. The applicant states that the management course teaches him how to manage himself and manage those working under him. He also needs to maintain appropriate stock levels and manage the financial aspects of kitchen operations. The applicant told the Tribunal that he presently works as a commis chef but as he ‘goes up the ladder’, he would have additional responsibilities and his job is not just about cooking. The applicant states that junior chefs may not have management responsibilities but the more senior the position, the more management responsibilities he would have. He intends to become a head chef and would be responsible for managing the kitchen and for that he needs management skills.
The Tribunal continued:
12.The Tribunal notes, however, that the applicant has nominated the occupation of a chef, not that of a head chef or a restaurant manager. While the applicant may well wish to have a more senior role in the future, the Tribunal must consider the applicant’s nominated occupation and not the occupation he plans to engage in 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.Although the Court in that case considered a different legislative provision, the same reasoning applies in relation to the clause in question.
The Tribunal found as follows:
14.The Tribunal has considered the applicant’s evidence about the nature of the tasks performed by a chef and the applicant’s claim that the more senior chefs are primarily involved in management rather than hands-on cooking. The Tribunal is not prepared to accept that evidence. 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.
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:
•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
The Tribunal then determined as follows:
16.In the Tribunal’s view, there are very few, if any, management responsibilities that form part of the job. The Tribunal acknowledges that some staff selection and training are part of the work of a chef as described in ANZSCO, however, the Tribunal is not satisfied that management skills – which the applicant would have acquired as part of his Diploma of Management - are associated with carrying out the occupation of a chef. As the court confirmed in Walia v MIBP [2015] FCCA 1949, 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 management skills form part of the whole of the nominated skilled occupation.
17.The applicant submits that ANZSCO should not be ‘taken religiously’ and it is only a guide which may not provide an accurate description of what chefs are expected to do. The Tribunal notes, in that regard, Raphael FM’s comments in Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 at 12:
If the Tribunal was required to look at each individual’s specific job description then the requirements for the grant of the visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. It should not lightly be replaced by an applicant’s definition based upon his own employment conditions.
The Tribunal continued:
18.The Tribunal also relies on the reasoning in Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115 which emphasize the significance of ANZSCO in determining the close relationship. The Tribunal thus prefers the description for the occupation set out in ANZSCO rather than the applicant’s own description of what he does in the course of his employment. Importantly, the Tribunal must consider the objective standard for the occupation and not what the applicant himself does, or intends to do, in his role. While the Tribunal accepts the applicant’s evidence that the management qualification will provide him with job opportunities, including those in Bangladesh, the issue before the Tribunal is the close relationship with the nominated occupation and not the applicant’s future intention and job aspirations.
19. The applicant states that he wants to learn from the Australian environment to be able to run a restaurant properly in Bangladesh. Learning managing skills in Australia would help him to do that. The applicant states that Australia is advanced in the field and he wants to acquire the skills to be able to work as a chef or a head chef in Bangladesh. He had to acquire the management skills in order to know and understand the different roles in the kitchen and to be able to manage the kitchen effectively in the future. The applicant states that hospitality industry in Bangladesh is booming and if he is familiar with the Australian standards, he will be able to disseminate his skills and knowledge to the industry in his home country. In the Tribunal’s view, the applicant may have established, at best, that the management skills may be helpful in his future role of a head chef. However, being helpful is not sufficient. There must be a close relationship between the qualification and the nominated occupation. In the Tribunal’s view, the fact that the applicant may utilise management skills when running his own business goes no further than establishing, at best, the usefulness of the management qualification to the occupation. However, the legislation requires something more. It needs to be more than complementary or useful. It needs to be closely related. 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.
20. The applicant argues that Diploma of Hospitality Management was not available at the time he was undertaking his studies, otherwise he would have completed that course. In his case, he had to complete two separate courses, the Diploma of Hospitality and the Diploma of Management. The applicant states that the Diploma of Management was designated for the hospitality industry. The applicant states that the Diploma of Hospitality Management is normally accepted as being closely related to the occupation of a chef. The applicant states that the units in the Diploma of Hospitality Management would be similar to those he had undertaken in the management course. In the Tribunal’s view, it is unhelpful to undertake a comparison of a qualification which the applicant had not completed (Diploma of Hospitality Management) to the qualification which he did complete (Diploma of Management). The close relationship must exist between the applicant’s qualification and the nominated occupation, not between the applicant’s qualification and a different qualification which may or may not be relevant to the nominated occupation.
The Tribunal was not satisfied that the management skills that the applicant acquired via the Diploma of Management formed any meaningful part of the skills associated with being a chef (at [21]).
Accordingly, the Tribunal found that the Diploma of Management was not “closely related to the nominated occupation of a chef” and the applicant did not meet cl 485.222 of the Regulations (at [22]).
On the basis of the above, the Tribunal refused to grant the applicant the visa (at [23]-[24]).
PROCEEDINGS IN THIS COURT
The applicant’s judicial review application filed on 11 January 2019 contains three grounds of review, as follows:
1. Natural Justice was not given to me as AAT only looked into one aspect, i.e. nominated occupation and did not look into study aspect.
2. AAT just referred ANZSCO for the nominated occupation, but did not refer training guide to see the clear picture.
3. I firmly believe that law is incorrectly applied as the AAT did not see both the aspects.
Therefore, I am attaching the detailed explanation with the evidences along with this form.
The applicant also filed an affidavit sworn on 11 January 2019. That affidavit included various attachments – including his academic documents and skills assessment. Those materials appear in the Court Book. “Exibit B” of the affidavit is a “submission”. The Court will refer to the content of these submissions, where relevant, when addressing grounds 2 and 3 below.
The materials before the Court are thus limited to those described above, a Court Book numbering 191 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 11 June 2021.
The applicant appeared before the Court without legal representation. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him an opportunity to elaborate on his grounds of review and to outline any other concerns that he had with the Tribunal’s decision. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant stated that the Tribunal did not fully assess what a chef does and adopted an approach that was “too theoretical when determining what a chef does”. These submissions are addressed below when assessing the applicant’s grounds of review.
CONSIDERATION
Ground 1
Ground 1 states:
Natural Justice was not given to me as AAT only looked into one aspect, i.e. nominated occupation and did not look into study aspect.
While the applicant frames this ground of review as a denial of natural justice, he appears to be arguing that the Tribunal did not consider a relevant consideration.
Contrary to what the applicant states, the Tribunal did consider the “Australian study requirement” (the “study aspect”) at [8].
The Tribunal noted that the only course the applicant had completed in the six months immediately prior to the application being filed was the Diploma of Management. That was the only course that met the Australian study requirement. That was the “study aspect” that the Tribunal was required to consider.
If the applicant is suggesting that the Tribunal should have relied on the other courses the applicant had completed, whether or not that is the case, the applicant was still required to rely upon the Diploma of Management. The Tribunal still needed to consider whether the Diploma of Management was relevant to the nominated occupation as it was that qualification which was used by the applicant to satisfy the Australian study requirement in cl 485.221 of the Regulations. In this regard, the Tribunal did what it was required to do.
No error arises in this regard. Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
AAT just referred ANZSCO for the nominated occupation, but did not refer training guide to see the clear picture.
It is not true that the Tribunal just referred to the ANZSCO description for the nominated position. The Tribunal also referred to the applicant’s own evidence (at [14]). However, it found that it must consider an “objective standard” and not the applicant’s own subjective description.
The applicant makes reference to a “training guide”. In the applicant’s “submission”, he states:
2. Registered Training Organisations (RTOs) who have the approved scope to deliver Nationally Recognised Training, as required by national and jurisdictional legislation within Australia.
(Document Attached)
Nationally Recognised Training components are classified under Australian Bureau of Statistics (ABS) standards for ANZSCO occupations and ASCED fields of education.
(Document Attached)
I have Completed Diploma of Hospitality from Melbourne Polytechnic from Feb 2015 to June 2015.
As per the training package, if someone has completed this course can have possible job titles;
•banquet or function manager
•chef de cuisine
•chef patissier
•executive housekeeper
•front office manager
•gaming manager
•kitchen manager
•motel manager
•restaurant manager
•sous chef
•unit manager (catering operations).
Clearly stating that Diploma of Hospitality is closely related to nominated skill (in this case it is chef). (Please refer to page no. 2 of training package)
Since I had done this course a while ago, therefore to meet the department's requirements (The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.), I did diploma of management, which is also closely related to the nominated skill.
Furthermore, training package states the list of numerous units that falls in Diploma of hospitality.
(Please refer to page number 6 of training package)
And in Diploma of Management, I studied the following units;
1. Manage quality customer service
2. Support the recruitment, selection and induction of staff
3. Develop a workplace learning environment
4. Manage risk
5. Develop workplace policy and procedures for sustainability
6. Ensure a safe workplace
7. Manage personal work priorities and professional development
8. Ensure Team effectiveness
All the units that I have done in management course are directly or indirectly falls in Hospitality package
Please see below the explanation of each and individual units;
SITXCCS501 Manage quality customer service core
SITXHRA1501 Recruit, select and induct staff group c
Develop a workplace learning environment (closely related to unit mentioned in Hospitality training package - Restaurant manager in a fine dining restaurant BSBINN502A Build and sustain an innovative work environment)
BSBRSK501B Manage risk group c
BSBSUS501A Develop workplace policy and procedures for sustainability group c
Ensure a safe workplace (closely related to unit mentioned in Hospitality training package Work Health and Safety SITXWHS301 Identify hazards, assess and control safety risks)
Manage personal work priorities and professional development (closely related to unit mentioned in Hospitality training package
Quality and Innovation
BSBCRT301A Develop and extend critical and creative thinking skills
BSBCRT501A Originate and develop concepts
BSBINN201A Contribute to workplace innovation
BSBINN301A Promote innovation in a team environment
BSBINN501A Establish systems that support innovation
BSBINN502A Build and sustain an innovative work environmentBSBMGT516C Facilitate continuous improvement)
Ensure Team effectiveness (closely related to unit mentioned in Hospitality training package - Communication and Teamwork
BSBCMM401A Make a presentationSITXCOM301 Address protocol requirements)
4 units are directly taken from hospitality package and the remaining 4 are closely related to the hospitality package (unit name varies, but the course content are closely related).
Here I also would like to stress upon the very important factor
Hospitality Packaging Rule states that;
28 units must be completed:
•13 core units
•15 elective units, consisting of:
•1 unit from Group A
•1 unit from Group B
•8 units from Group C
•5 units from Group C, elsewhere in SIT12 Training Package, or any other current Training Package or accredited course (Which means any other current training package or accredited course- Diploma of management is also an accredited course, which means, even if you have done any other accredited qualification, you will get credit of 5 units to get the Diploma of Hospitality
Therefore, if units are falling in Hospitality package, it proves that, Diploma of management is closely related to the nominated occupation.
Hence meeting the criteria of closely related qualification.
Where the applicant says “document attached” or “please refer to training guide”, no document is attached. Relevantly, no training guide is attached.
Placing this aside, what ground 2 and the applicant’s submissions are purporting to do is advance an argument that was never put to the Tribunal and explain (or explain in more detail), having regard to a document that does not appear to have been put to the Tribunal, why the courses are “closely related”. This invites the Court to engage in impermissible merits review.
The applicant says that if the Tribunal had looked at the “training guide” (instead of “just” the ANZSCO description) then the Tribunal would have had a “clear picture” of why the Diploma of Management was “closely related”.
The applicant did not ask the Tribunal to look at the training guide or put this document before the Tribunal for consideration.
In circumstances where the applicant did not refer to any training guide and the applicant was on notice (by virtue of the delegate’s decision) that the ANZSCO description did not suggest that the course and occupation were “closely related”, there is no error in the Tribunal considering the ANZSCO description and not undertaking any further comparison or inquiries.
Ground 2, and the applicant’s submissions, are, accordingly, dismissed.
Ground 3
Ground 3 provides:
I firmly believe that law is incorrectly applied as the AAT did not see both the aspects.
For the reasons stated above in relation to ground 1, the Tribunal did address the “study aspect”.
The second relevant aspect for consideration is the “nominated occupation”. The Tribunal considered this aspect in significant detail (at [12]-[21]). The Tribunal considered the applicant’s evidence and the arguments raised by him, together with the ANZSCO description when determining whether the Diploma of Management was “closely related” to the nominated occupation of a “chef”.
In effect, ground 3 simply expresses disagreement with the Tribunal’s finding that the occupation of chef was not “closely related” to the Diploma of Management.
Disagreement does not evidence jurisdictional error. Here, the Tribunal considered all that it was required to consider. Importantly, it considered “both aspects”.
In relation to the suggestion that the Tribunal “incorrectly applied the law”, the Court disagrees.
The applicant was found not to have met cl 485.222 of the Regulations which provides:
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
In Singh v Minister for Home Affairs [2020] FCA 203, the Federal Court summarised the principles in relation to the meaning of “closely related” as follows:
23.As is apparent from the Tribunal’s reasons, it considered the trio of relevant cases in this Court on the meaning of “closely related”: Minister for Immigration and Border Protection v Dhillon & Anor (2014) 227 FCR 525 (Dhillon); Talha v Minister for Immigration and Border Protection & Anor (2015) 235 FCR 100 at [53] and Constantino v Minister for Immigration and Border Protection & Anor (2013) 139 ALD 567 at [26].
24.The principles to be derived from those three cases are not in issue. They are:
(a) The words “closely related” require a consideration of the connection between two things, being the relevant course of study and the occupation the subject of the visa application.
(b) The comparison does not require a finding of an exact correspondence between the course of study and the occupation but does require that “the whole of the qualification” must be compared with the “whole of the occupation” to determine whether the necessary close relationship exists.
(c) A conclusion that the qualification and the occupation are “closely related” requires more than a conclusion that the two things are complementary, or that the qualification might be applied or utilised in the course of the nominated profession.
25.As the Tribunal noted, the nature of the nominated occupation is to be determined by reference to the “Australian and New Zealand Standard Classification of Occupations” (ANZSCO), which needs to be read as a whole and with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation. In considering the comparison between the course of study and the occupation, it is not appropriate to rely upon the applicant’s view or description of what the occupation entails or the applicant’s view of the degree of any relevant connection: Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 at [12]; Kabir v Minister for Immigration and Citizenship & Anor (2010) 244 FLR 25 at [70]; Shafiuzzaman v Minister for Immigration & Anor [2011] FMCA 874 at [58].
Here, the Tribunal’s application of the principles was sound.
The Tribunal informed itself about the nature of the nominated occupation by considering the ANZSCO and the applicant’s evidence about what is required of a chef. It accepted that the applicant would have obtained management skills as a part of his Diploma of Management. It expressly noted that staff selection and training are part of the role of a chef (and could be considered management responsibilities). However, the management skills which the applicant had obtained (and which were the “whole of the qualification”) were not relevant to the “whole of the occupation”. Rather, it was determined that there were few management responsibilities included in the role expected of a chef (at [16]).
Further, after careful consideration, the Tribunal did find that the applicant’s management skills (which he had obtained through the Diploma of Management) would be “useful”. The Tribunal noted the skills were relevant, on the applicant’s own evidence, to a future occupation (as, perhaps, a head chef). However, their relevance or usefulness to the “nominated occupation” was not readily apparent. Nor did the evidence indicate that the skills obtained in the Diploma of Management were such that they played a meaningful part in relation to the tasks required of a chef.
The Tribunal’s application of law to the facts in this scenario was entirely sound.
To the extent that the applicant now says that the Tribunal’s approach in this regard is “theoretical”, rather than “practical” (as was raised by the applicant in his oral submissions before this Court), the Court disagrees. It cannot be said here that the Tribunal’s findings were not open to it on the evidence. While this Court might have determined differently, that is not the relevant test on review. Here, as correctly argued by the Minister (at [43]) the Tribunal’s decision cannot be described as illogical or irrational in the sense that the Tribunal formed a view that no rational or logical decision maker could have arrived at on the same evidence: SZMDS at [130].
Ground 3, and the applicant’s submissions that the “AAT decision is wrong in law” and/or “too theoretical” are, accordingly, dismissed.
CONCLUSION
The application for judicial review and the applicant’s affidavit (containing his “submissions”) fail to identify any jurisdictional error. The Court has otherwise been unable to identify any error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 24 June 2021
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