Kim (Migration) - [2022] AATA 2970

Kim (Migration) [2022] AATA 2970 (26 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Bokyoung Kim
Mr Seunghoon Lee
REPRESENTATIVE:  Ms Shalini Vellapandian (MARN: 0743002)
CASE NUMBER:  1923353
HOME AFFAIRS REFERENCE(S):          BCC2019/2863060
MEMBER:Katie Malyon
DATE:26 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations
·cl 485.222 of Schedule 2 to the Regulations.

Statement made on 26 July 2022 at 1:50 pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Chef – Australian study requirement – Advanced Diploma in Hospitality Management – courses closely related to skilled occupation – courses are a pathway leading to a career of Chef – decision under review remitted
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Prasad v MIAC [2012] FCA 591
Setiya v MICMSMA [2021] FCCA 544
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [2015] FCAFC 115
Uddin v MIAC [2010] FCA 1281
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2019 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, Korean nationals Mrs Bokyoung Kim and Mr Seunghoon Lee, applied for the visas on 4 June 2019. At the time of lodgement of the visa applicants, Class VC contained Subclass 485 only. The criteria for the grant of a Subclass 485 visa are set out in Part 485 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.
The delegate refused to grant the visas on the basis that the primary visa applicant, Mrs Kim, did not satisfy cl 485.222 of Schedule 2 of the Regulations because the delegate was not satisfied that her Advanced Diploma of Hospitality Management completed at the Apex Institute of Education (Apex) is closely related to her nominated skilled occupation of Chef ANZSCO 351311. Additionally, the delegate was not satisfied that Mrs Kim could use her Advanced Diploma of Hospitality Management to satisfy the Australian study requirement as required to meet reg 1.15F(c).
On 19 July 2022, the applicants’ representative Ms Shalini Vellapandian of Focus Migration provided submissions and evidence in support of the review application.
In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicants based in the material before it, pursuant to s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary applicant Mrs Kim is seeking to satisfy criteria for grant of a Subclass 485 visa in the Graduate Work stream which includes cl 485.221 and cl 485.222 of Schedule 2 to the Regulations. These provisions require that not only must the applicant have satisfied the ‘Australian study requirement’ in the 6 months immediately before the day the visa application was made (cl 485.221) but the applicant’s degree, diploma or trade qualification used to satisfy that requirement must also be closely related to their nominated skilled occupation (cl 485.222).
The issue in the present case is whether the primary applicant, Mrs Kim, meets those requirements.
Does the applicant meet the Australian study requirement?
Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
(a) that are registered courses; and,
(b) that were completed in a total of at least 16 calendar months; and,
(c) that were completed as a result of a total of at least 2 academic years study; and,
(d) for which all instruction was conducted in English; and,
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are defined terms: see regs 1.03, 1.15F and 2.26AC(6) of the Regulations and cl 485.111 of Schedule 2 to the Regulations. The term ‘completed’ in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award: reg 1.15F(2). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 LIN 19/085.
Based on evidence provided, the Tribunal is satisfied that Mrs Kim has undertaken the following qualifications at Apex:
1)a Certificate IV in Commercial Cookery completed on 8 April 2019; and,
2)an Advanced Diploma in Hospitality Management completed on 11 February 2018.
Having reviewed the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal is satisfied that the courses undertaken by Mrs Kim are both registered courses completed at a CRICOS registered institution.[1]
[1] Courses at Location - NSW - NSW - Apex Institute of Education (Goulburn Street, Sydney) (RTO and ELICOS Operations)
Mrs Kim commenced her Advanced Diploma in Hospitality Management on 11 April 2016 and completed the course nearly 2 years later on 11 February 2018. On 9 April 2018, she Kim commenced a Certificate IV in Commercial Cookery which she completed a year later on 8 April 2019. Based on evidence provided, the Tribunal is satisfied that courses undertaken by Mrs Kim were completed in a total of at least 16 calendar months and that they were completed as a result of at least 2 years academic study. Further, information publicly available on the CRICOS Register confirms that the language of instruction for each of these courses was English.[2]
[2] Course Details - Apex Institute of Education Pty Ltd - Advanced Diploma of Hospitality Management; Course Details - Apex Institute of Education Pty Ltd - Certificate IV in Commercial Cookery
In addition, the Department’s Movement Records confirm that Mrs Kim was the holder of a Subclass 572 Student visa whilst undertaking her Advanced Diploma in Hospitality Management and, subsequently, she held a Student Subclass 500 visa when studying for her Certificate IV in Commercial Cookery. Accordingly, the Tribunal finds that Mrs Kim undertook her courses while in Australia is the holder of a visa authorising her to study.
Clause 485.221 requires the qualifications to be relied on to satisfy the Australian study requirement be completed within 6 months immediately before the day the application is made. Together, the courses completed by Mrs Kim confirm that she meets the Australian study requirement in the period of 6 months immediately before the day the applicants applied for their Subclass 485 visa on 4 June 2019.
Accordingly, the Tribunal finds that Mrs Kim meets cl 485.221 of Schedule 2 to the Regulations.
Is the qualification ‘closely related’ to the nominated occupation?
Clause 485.222 of Schedule 2 to the Regulations requires that each qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
As noted above, the delegate was not satisfied that Mrs Kim’s Advanced Diploma of Hospitality Management completed at Apex is closely related to her nominated skilled occupation of Chef ANZSCO 351311 and, therefore, she did not meet cl 485.222 of Schedule 2 to the Regulations.
An occupation is a ‘skilled occupation’ in relation to a person if: it is specified by the Minister as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and, it is applicable to the person in accordance with the specification of the occupation: regs 1.03 and 1.15I.
In this case, Mrs Kim nominated the occupation of Chef ANZSCO 351311 which is a skilled occupation specified in IMMI 19/051. Mrs Kim relies on both her Advanced Diploma in Hospitality Management and her Certificate IV in Commercial Cookery to meet the Australian study requirement. Therefore, the issue for the Tribunal to consider is whether each qualification used to satisfy the Australian study requirement is closely related to Mrs Kim’s nominated occupation of Chef.
The term ‘closely related’ is not defined in the Regulations. However, the term has been considered in a number of cases including the Full Federal Court of Australia’s decisions of MIBP v Dhillon[3] and Talha v MIBP[4] as well as the Federal Court of Australia’s decision in Constantino v MIBP[5] and, more recently, the Federal Circuit Court of Australia in Setiya v MICMSMA.[6] The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:
·while the words ‘closely related’ are not defined in legislation they do require and call attention to the connection between 2 things. And, although the words ‘closely related’ do not require an exact correspondence,[7] the relationship must be more than merely complementary.[8]
·in making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation.[9]
·it is appropriate to objectively consider the relationship of the applicant’s qualification to the ANZSCO definition of the occupation rather than relying on the applicant’s own (subjective) description of what the occupation entails, or the applicant’s own view of the proximity of the qualifications to the nominated occupation.[10]
·it is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation[11] and, in carrying out the evaluative exercise, it is critical that the Australian studies be compared with the whole of the nominated occupation.[12]
[3] (2014) 227 FCR 525.
[4] [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ.
[5] [2013] FCA 1301, Jacobson J.
[6] [2021] FCCA 544, Jarret J
[7] MIBP v Dhillon (2014) 227 FCR 525 at [20]. See also Constantino v MIBP [2013] FCA 1301, Jacobson J at [33] quoting with approval Prasad v MIAC [2012] FCA 591, Logan J at [33].
[8] Uddin v MIAC [2010] FCA 1281, North J at [10] - [12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].
[9] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56]; Setiya v MICMSMA, Jarrett J at [25] [2021] FCCA 544.
[10] Chawdhury v MIAC [2010] FMCA 275, Raphael FM at [12]. See also Kabir v MIAC [2010] FMCA 577, Scarlett FM at [70], Shafiuzzaman v MIAC [2011] FMCA 874, Nicholls FM at [48] – [67] where the Court held that the Tribunal was correct in applying an objective test instead of a subjective test by the applicant that the term ‘closely related’ should be read as ‘complementary’ or ‘useful’ to the nominated occupation.
[11] Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53]
[12] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].
Accordingly, the Tribunal has been guided by these cases in its consideration of the issue presented in Mrs Kim.
In considering whether the qualifications that the applicant relies on are closely related to Mrs Kim’s nominated skilled occupation of Chef, the Tribunal has observed the hierarchies and groupings in ANZSCO. The nominated occupation of Chef ANZSCO 351311 is the only occupation in ANZSCO Unit Group 3513. The description for this Unit Group states:
Chefs plan and organise the preparation and cooking of food in dining and catering establishments.
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, Dieticians 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.
The Tribunal has considered the Mrs Kim’s Academic Transcripts for her Advanced Diploma of Hospitality Management and her Certificate IV in Commercial Cookery completed at Apex. The Tribunal has reviewed all of the subjects undertaken by Mrs Kim during her study for both courses and compared these with the whole of the nominated occupation. Having considered evidence provided, the Tribunal is satisfied (as was the delegate) that Mrs Kim’s Certificate IV in Commercial Cookery is closely related to the nominated occupation of Chef.
Mrs Kim’s Advanced Diploma in Hospitality Management requires closer consideration. As noted above, the delegate found the Advanced Diploma in Hospitality Management completed by Mrs Kim is not closely related to her nominated occupation of Chef. The delegate found that the ANZSCO description for the occupation as set out above does not refer to hospitality management related activities as benefiting the nominated occupation. For the reasons outlined below, the Tribunal takes a different view as it is evident that the role of a Chef within a commercial kitchen is typically a senior role requiring management skills on a regular basis.
In a submission lodged with the Tribunal, Mrs Kim’s representative addresses the relationship between the ANZSCO description of Chef and the units studied by Mrs Kim in her Advanced Diploma of Hospitality Management with Apex. Units undertaken by Mrs Kim in her Advanced Diploma relevant to the ANZSCO description include the following:
·     Use hygiene practice for hospitality service;
·     Identify hazards, assess and control safety risks;
·     Receive and store stock;
·     Participate in safe work practices;
·     Manage conflict;
·     Manage diversity in the workplace;
·     Manage risk;
·     Monitor work operations
·     Lead and manage people;
·     Monitor staff performance;
·     Recruit, select and induct staff;
·     Establish and maintain a work health and safety system;
·     Research and comply with regulatory requirements;
·     Work effectively in hospitality service.
The Tribunal accepts that the subjects outlined above completed in Mrs Kim’s Advanced Diploma in Hospitality Management contain information and guidance in implementing managerial skills that are highly referable to, and expected to be undertaken by, a Chef in a commercial kitchen.
In her submission, the representative opines that the delegate did not closely review the subjects undertaken by Mrs Kim in her Advanced Diploma and nor was consideration given as to how many of the subjects completed are relevant to Mrs Kim’s future career as a Chef. She also referred to the Hospitality Course page from the Apex website which states both its Advanced Diploma of Hospitality Management and its Certificate IV in Commercial Cookery are suitable courses for a career as a Chef.[13] In addition, the representative notes that the same information about an Advanced Diploma of Hospitality Management as a pathway leading to a career as a Chef can be found on the Australian Government’s training.gov.au website.[14]
[13] Courses - APEX Institute of Education (apexaustralia.edu.au)
[14] training.gov.au - SIT60316 - Advanced Diploma of Hospitality Management
It is the Tribunal’s view that an Advanced Diploma of Hospitality Management is a course which enhances a Chef’s understanding and appreciation of kitchen operations and is, therefore, closely related to Mrs Kim’s nominated occupation of Chef. The position of Chef is regarded as a leadership role that can be distinguished from the occupation of Cook which requires work to be performed under instruction. The Tribunal accepts that, as a Chef, Mrs Kim would be required to display leadership in planning as well as organising the preparation and cooking of food in a dining establishment as described in ANZSCO. As such, it accepts that an Advanced Diploma in Hospitality Management is closely related to the occupation of Chef. In passing, the Tribunal notes that its position in this regard is reflective of decisions in Agustin [2022] AATA 1808 and Reyes [2021] AATA 1588.
On the basis that both Mrs Kim’s Certificate IV in Commercial Cookery and her Advanced Diploma in Hospitality Management are closely related to the nominated occupation of Chef, the Tribunal is satisfied that the requirement in cl 485.222 of Schedule 2 to the Regulations is met.
Based on the above findings, the Tribunal finds that the Mrs Kim meets the requirements of cl 485.221 and cl 485.222 of Schedule 2 to the Regulations.
DECISION
The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.221 of Schedule 2 to the Regulations
·cl 485.222 of Schedule 2 to the Regulations.
Katie Malyon

Member