Kim (Migration)

[2021] AATA 888

Kim (Migration) [2021] AATA 888 (19 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sunae Kim
Mr Jungsik Kim

CASE NUMBER:  1818484

HOME AFFAIRS REFERENCE(S):          BCC2018/1721609

MEMBER:Ian Berry

DATE:19 January 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 19 January 2021 at 3:30pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Australian study requirement met – qualification was not closely related to the nominated occupation –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 485.221, 485.222

Education Services for Overseas Students Act 2000

CASES

Bhanot v Minister for Immigration and Border Protection [2014] FCA 848
Constantino v Minister for Immigration and Border Protection [2013] FCA 1301
Talha v MIBP [2015] 235 FCR 100

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 on 6 June 2018 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 18 April 2018. Visa Class VC contains Subclass 485. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.485.222 of Schedule 2 to the Regulations because the Diploma in Business (the Diploma) was not closely related to the applicant’s nominated occupation of Chef ANZSCO code 351311. 

4. The applicant appeared before the Tribunal on 19 November 2020. The applicant did not attend the second day of the hearing on 4 December 2020. For reasons set out in this decision, the Tribunal decided to proceed with the hearing. The Tribunal exercised its discretion to hold the hearings by telephone. During the COVID-19 pandemic, special circumstances exist for the telephone hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by telephone achieved this end.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicants were represented in relation to the review by their registered migration agent Mr N Joo MARN[1] 1173091 of Cornerstone Migration, who appeared by telephone with the applicant at the first hearing.  At the second hearing, for reasons detailed in this decision, the applicant did not to attend. The representative did attend.

   [1] Migration Agent Registration Number

7. The applicant was asked as to whether she understood the reason for the delegate’s decision. She confirmed she understood the reasons provided by the Delegates decision record.

   The Second Hearing

8. At the secondary convened hearing on 4 December 2020, the applicant answered the Tribunal officer’s telephone call to her mobile, immediately preceding the commencement of the hearing.  The applicant informed the Tribunal officer she was at a hospital because she had and was having a panic attack.  The connection to the applicant’s mobile was broken and attempts to call her were to no avail. The applicant’s telephone call was in the presence of the Tribunal Member.

9. The applicant’s evidence had already been given at the first hearing. The Tribunal convened the second day hearing believing the applicant intended for her employer Mr Jaesung Kim and a fellow employee Mr Jiman Bae to give evidence. Because of time restrictions on the first hearing; the interpreter had another engagement and could not extend her time with this hearing. On this second day of the hearing, the applicant’s migration agent was in attendance. The Tribunal was informed that it was not intended for any other witness’ be called.

10. The Tribunal considered adjourning the hearing to another date, but as the applicant’s evidence had already been given, and the applicant did not intend to call the witnesses who were to give evidence, the Tribunal invited the applicant’s migration agent to make further or expand on submissions and arguments orally. While the applicant’s evidence was forthright and addressed the questions directly, the Tribunal considered the applicant’s current panic attack on the morning of the second hearing, it would better serve the  mental health of the applicant who may well suffered by having a panic attack in listening to the submissions. The Tribunal considered it appropriate to proceed on this day to conclude the hearing and advised the applicant’s representative, the course the Tribunal will be taking.

11. To ensure fairness to the applicant and her representative, the Tribunal allowed the applicant 14 days to make new or further submissions in writing and give other documentary evidence or information as the applicant or representative considered as appropriate. The applicant (through her representative) availed herself of that extension by providing a further written submission received at the Tribunal on 2 December 2020.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which include cl.485.221 and 485.222 of Schedule 2 to the Regulations. These require that the applicant must have satisfied the ‘Australian study requirement’ in the 6 months immediately preceding the day the visa application was made (cl.485.221); and secondly, that each degree, diploma or trade qualification used to satisfy that requirement must be closely related to the applicant’s nominated skilled occupation (cl.485.222). The issue in the present case is whether the applicant meets those requirements.

14. The applicant is a Korean citizen who entered Australia on 28 June 2011 after being granted a TZ-417 commonly known as a working visa. On 23 December 2013, the applicant was granted a Class TU Subclass 500 visa allowing her to study in Australia. That visa’s expiry date was 25 April 2018.  She is married and employed as a chef in an inner-city Brisbane restaurant.  Her evidence is that the restaurant in which he is presently employed has kitchen staff of about 15 employees including a head chef, 3 section chef’s and other assorted employees.  Presently, the applicant is a section chef.

    The applicant’s medical condition

15. On 16 July 2020, the Tribunal wrote to the applicant’s representative inviting the applicant to attend the Tribunal hearing set for 10 August 2020 at 10 am.  The applicant responded, as she did with all communications with the Tribunal, through her representative, by an email of 31 July 2020.  The representative was instructed to apply for an adjournment.  The reasons for the adjournment were:

    (a) On 20 December 2018, the applicant was assaulted by several teenagers after she had finished work.  The unprovoked assault consisted of the applicant being randomly kicked and punched in the head several times.  She says that she suffered significant injury to her face and briefly lost consciousness.

    (b) Following the assault, the applicant was admitted to hospital.  She developed Post traumatic stress disorder.  The assault had been reported to the police.

    (c)The applicant suffered another injury in March 2020, which is not specified but led to an operation on her wrist. It was a work-related injury.

    (d)The representative, in order to prepare for the hearing, attempted to obtain instructions in order to prepare a written submission, without success.

    (e)The applicant’s representative states that the applicant relies on her ability to demonstrate that her latest qualification is closely related to the occupation of Chef, thus supporting the reason as to why the applicant ought to be at a hearing which should be adjourned.

    (f)the applicant has consulted the clinical psychologist and is taking daily medication which was not specified.  Her current mental health care plan is due to be reviewed on 26 October 2020.

16. The applicant’s representative attached a general practitioner referral letter and prescription, medical certificates considering the workplace injury and operational, a letter from the supporting clinical psychologist and a witness statement concerning the assault (Queensland police service)

17. The work capacity certificate – workers compensation states that an examination occurred on 20 July 2020 concerning her wrist for which she obtain treatment from 20 July 2020 to 20 September 2020.  The clinical psychologist Nam-Hee  Pellegrin provided a report addressed to the Department of home affairs dated 30 July 2020.  The clinical psychologist is based at level I, 134 Willoughby Road Crows Nest NSW 2065.

18. A consent form from Dr Greg Couzens confirmed the applicant having an interaventional procedure at the Sunnybank Private Hospital on 9 March 2020. This procedure is an Arthroscopy  and TFC repair to the applicant’s left wrist.

19. A letter of referral by Dr Sea Jin Eum of the Mt Gravatt Medical Centre dated 18 July 2020, to Doctor at the Apollo Specialist Centre, which stated:

    Current medications – no long-term medications

    Thank you for seeing Mrs Sunae Kim aged 35 years.  I seek your opinion – anxiety/depression post trauma history 2 years ago – insomnia/anxiety/panic attack keen for review with psychiatrist for clarification of diagnosis – PTSD/anxiety.

    Patient does not have Medicare – keen for earliest appointment with psychiatrist.

    Thank you for your care and assistance.  I shall await your reply.

    Doctor Sea Jin Em

20. A similar letter was tendered by the applicant addressed to Dr Terence Teh of the Belmont Private Hospital.  The letter was dated 28 July 2020.

21. A letter dated 25 July 2020, was sent by Dr Robina Shamas to Mrs Karina Bradley for an opinion and psychological management of her depression/anxiety under MHCP. Test results accompanied the letter.

22. By letter dated 31 July 2020, Dr Maimuna Akbar certified that the patient’s medical records were reviewed.  The report stated ‘she is under the care of orthopaedic specialist for left wrist pain and consulting Nam-Hee Pellegrin for psychotherapy.  Patient states that she is being treated for PTSD and Major Depressive Disorder.  Would you please consider her application regarding extension of her visa.’

23. The applicant’s 31 July 2020 letter invited the Tribunal to adjourn the hearing to mid November 2020 subject to further assessment and clearance from her treating psychologist.  The representative sent ‘this will allow our office to have ample time to seek instructions from the client wants her medical conditions stabilised’.

24. On 3 August 2020, after carefully considering the applicant’s submission and accompanying medical reports, the Tribunal agreed to reschedule the hearing to a date on or after mid November 2020.

25. On 24 August 2020, the Tribunal mistakingly sent to the applicant a hearing date for hearing on 11 September 2020 at 10 AM.  The representative responded confirming that the applicant’s case was to proceed for hearing in November.

26. On 10 September 2020, the Tribunal confirmed that it had not received any request to postpone the hearing in September 2020.  By email on 10 September 2020, advice was received from the representative’s firm that Mr Chau no longer represents Cornerstone and a request for an adjournment was made.

27. It appears the Tribunal set the matter for hearing 11 September 2020 and was in error.  The Tribunal confirmed that a new hearing date would be scheduled for November 2020.  The representative would be advised once that hearing date is available.  On 26 October 2020, the Tribunal invited the applicant to appear at the hearing on 19 November 2020 at 10 AM.

28. On 3 November 2020, the applicant’s representative request a further adjournment.  In support of that adjournment the applicant provided the Tribunal with the following documentation:

    (a)Appointment details for the applicant to see a Dr Ambica Prasad Jha.  The doctor’s specialty were not provided and the only information was received was for an appointment for the applicant to see this doctor on Friday, 27 November 2020 at 10:30 AM.

    (b)Report from Clinical Psychologist Pellegrin dated 29 September 2020 stating:

    Ms Kim is a 35yr year old woman who reported being a victim of violent physical assault on 20 December 2018, which occurred just outside her work on the way to go home.

    Ms Kim indicated that since the incident, she experiences a high level of anxiety and depressed mood. She described experiencing nightmares 3-4 times a week; significant mood swings; unable to leave her house; and when she has to go out for medical appointments, she avoids places and people who reminds her of the attackers; she is no longer able to take public transport for fear of meeting people whom she does not feel safe; deliberately "looking out for" Aboriginal people in the street; "jumps" at slight noise; heart palpitation, breathlessness and tension when she meets strangers, or they start to talk to her, and does not pick up phone calls when she does not recognise the phone numbers. She reported that these symptoms have been developing since 2019 and have been observed to be getting worse, where she has stopped going to work since March 2020.

    A self-reported questionnaire, Depression Anxiety Stress Scale (DASS), was used to assess Ms Kim’s level of depression, anxiety and stress. The results obtained in the first session showed Extremely Severe level on scale of depression and anxiety and Severe level on scale of stress compared to the normal population. The results obtained in the 5th session showed no changes in the level on all scales.

    A self-reported questionnaire, Post Traumatic Stress Disorder (PTSD) Checklist (PCL-5), was used to assess the presence and severity of PTSD symptoms. The client results indicated symptomatic of PTSD and the score continues to indicate a high level of symptoms present.

    These results appear to be consistent with Ms Kim’s verbal reports. She seems to be experiencing symptoms consistent with Post Traumatic Stress Disorder with Panic attacks, including avoidance of places and people that reminds her of the traumatic event, sleep difficulties where she is waking up frequently at night, checking on noises, nightmares present, hyper-vigilant, irritability, difficulties with concentration and memory, checking and re-checking information, low mood, feelings of excessive guilt and shame for not able to work, being home bound, being dependent on others for support, to go out, presence of low motivation, easily teary, and experiences panic attacks where she reports having heart palpitations and breathlessness when she sees strangers and Aboriginal people.

29. Clinical psychologist Pellegrin practices at Crows Nest in New South Wales and has been the applicant’s clinical psychologist only since early this year.  The report from the clinical psychologist does not detail as to how the soft testing leads to the conclusions reached by the clinical psychologist.  There is no evidence of the applicant actually consulting the clinical psychologist.  Whether it was a personal visit or by telephone is unknown to the Tribunal.

30. The applicant returned the completed response to hearing invitation dated 31 October 2020 which did comment ‘Sunae is still experiencing part of PTSD symptoms as difficulties with concentration and memory’ the applicant did indicate that she believed that she will experience difficulty participating in the hearing by telephone or videoconference or the hearing cannot be conducted by telephone or videoconference.

31. On 4 November 2020, addressing the applicant’s request for an adjournment of the hearing set for 19 November 2020 at 10 AM, the Tribunal set up the history relating to the adjournment requests of the hearings and advised that the Tribunal refuses to adjourn the hearing and for the hearing to proceed on 19 November 2020 at 10 a.m.

32. On 16 November 2020 at 3:14pm the applicant’s representative advises that ‘as the condition that soon a Kim suffers from is invisible by appearance, the GP is were reluctant to provide the letter requested.’  That letter was accompanied by a static toy declaration of the applicant where she sets out her medical history.  The Tribunal notes that the applicant’s medical history is from 25 July 2022 now.  She did not provide any reports relating to her medical condition from the occurrence of the event and 2018 to July 2020.

33. Notwithstanding, the applicant had already given her evidence on the first hearing date.  The second hearing date related to her witnesses giving evidence if that was the applicant’s intent and to receive further argument from her representative.  At the first hearing, the Tribunal was told by the applicant that since the assault event she had been working as a chef though not working at the time because of work related wrist injury which is reported in this decision.  The applicant stated that she could not attend the hearing of 16 November 2020 because she was at a hospital.  The applicant has not provided any evidence of that occurrence.

34. In support of the applicant not attending the hearing, the applicant provides a referral report dated 6 October 2020 from Du Zubair Bhatti to Dr Raguraman Janakiraman.  The specialties of each of those doctors was not given.  The report states that the applicant had been working as a chef was attacked by three aboriginal youths on 20 December 2018 and sustained facial injuries.  She was seen by Dr John Chalk though not described, is a psychiatrist in Brisbane.  The letter states that the applicant had seen Doctor Chalk on one consultation, but she was not happy to see him in the future.  The date, or times when the applicant consulted Dr Chalk are not stated.  Further, the applicant in her evidence before the Tribunal of the first hearing said that she is and has been working full-time as a Chef.  She was not working at the time because she had a work-related injury.  The applicant’s submission received by the Tribunal on 2 December 2020 confirms the applicant is an employment as a chef in Brisbane.

    Has the applicant satisfied cl.485.221?

35. In her visa application, the applicant nominated her occupation as Chef ANZSCO 351311.

36. The applicant completed the following CRICOS registered courses:

    ·Certificate IV in Commercial Cookery commenced 13 July 2015 and completed on 18 November 2016.

    ·Diploma of Hospitality commenced 31 January 2017 and completed on 16 June 2017.

    ·Diploma of Business Commenced 4 September 2017 and Completed on 25 March 2018.

37. The applicant explained the reason she undertook the Diploma of Business on the advice of her then migration agent she had previously consulted.  This course was completed in the 6 months immediately before making her application.

38. Clauses 485.221 and 485.222 state:

    Cl.485.221

    The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.

    Cl.485.222

    Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.

    Does the applicant meet the Australian study requirement?

39. 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 one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

    ·that are registered courses; and

    ·that were completed in a total of at least 16 calendar months; and

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

    ·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

1. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000 (IMMI 09/040).

2. The applicant completed commenced her studies on 31 July 2015 and completed all her studies on 23 March 2018, a period of at least 16 months.  The courses selected by the applicant and undertaken by her were all CRICOS[2] registered.  All courses were taught in English.  The Certificate IV in Commercial Cookery was designated 75 weeks in duration.  The Diploma of Hospitality was of 52 weeks in duration and the Diploma of Business 54 weeks in duration.  In all, totalling 181 academic weeks.  As previously stated, the applicant held a visa allowing her to study.

   [2] Commonwealth Register of Institutions and Courses for Overseas Students

3. The Tribunal finds that the applicant did satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application.

4. Therefore, the applicant meets cl.485.221.

   It is the qualifications ‘closely related’ to the nominated occupation?

5. The words ‘closely related’ are not defined in the Act or Regulations though they have been considered in several decisions and often called upon to give meaning to those words as used in cl.485.222.

6. Clause 485.222 requires the applicant’s qualifications would satisfy the Australian study requirement (ASR) in cl.485.222  to be closely related to the applicant’s nominated occupation.  The applicant’s nominated occupation in her visa application is that of a Chef having the  ANZSCO[3] code of 351311.  IMMI 18/051 designates that a chef is a skilled occupation.  An occupation is a ‘skilled occupation’ if it is specified by the Minister as a skilled occupation; if a number of points are specified in the instrument has been available – for which the number of points are available and is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I)

   [3] Australian New Zealand Standard Classification of Occupations

7. The words closely related requires and calls attention to the connection between two things, and although these words do not require an exact correspondence, the relationship must be more than merely complimentary[4]

   [4] MIBP v Dhillon [2014] FCAFC 157 at [20] (Dhillon)

8. In assessing the words closely related, the nature of the nominated occupation must be determined by reference to ANZSCO; meaning looking at all the hierarchical levels and the tasks at each level.  It needs to be read with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation[5] in order for it to be compared with the whole of the applicant’s qualifications to determine if it is closely related to the nominated occupation.

   [5] Talha v MIBP [2015] 235 FCR 100 (Talha).

9. Objectivity is required when considering the relationship of the applicant’s qualifications to ANZSCO’s occupation hierarchy.  It is irrelevant to rely on the applicant’s own description of what the occupation entails, to the applicant’s view of the proximity of the qualification, to the usefulness of that qualification or to the nominated occupation.

10. Ultimately, it is for the decision-maker to decide whether an applicant’s Australian qualifications are closely related to the nominated skilled occupation (Talha).  In carrying out this evaluation, it is critical for the whole of the Australian studies be compared with the whole of the nominated occupation (Talha, Dhillon and Constantino[6])

    [6] Constantino v MIBP [2013] FCA 1301 at [26]

11. Talha v MIBP [2015] 235 FCR 100 at [53] had this to say about the close relationship of the nominated skilled occupation and the applicant’s Australian studies:

    53 Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it 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”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal. (Emphasis added).

12. ANZSCO has five hierarchical levels - major group, sub-major group, minor group, unit group and occupation. The Unit Group category (ANZSCO code 3513) includes the most detailed level of the classification 'Occupations' (ANZSCO code 351311). An Occupation is defined as a set of jobs that require the performance of similar or identical sets of tasks.  In practical terms, an occupation is a set of jobs whose main tasks are characterised by a high degree of similarity.

13. The similarity of tasks is defined in ANZSCO as a function of the level and specialisation of skill required to perform those tasks. Skill is defined as the ability to competently perform the tasks associated with an occupation. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of an occupation to a particular skill level should be seen as indicative only and should not be used prescriptively. In ANZSCO, skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation. The greater the range and complexity of the set of tasks, the greater the skill level of an occupation. Skill level is measured operationally by:

    • The level or amount of formal education and training.

    • The amount of previous experience in a related occupation.

    • The amount of on-the-job training.

14. In general, the greater the range and complexity of the set of tasks involved, the greater the amount of formal education and training, previous experience and on-the-job training required to competently perform the set of tasks for that occupation. Formal education and training refer to the level and amount of education and training required for competent performance of the tasks required in an occupation. It is measured in terms of educational qualifications as set out in the Australian Qualifications Framework (AQF).

15. Previous experience refers to the time spent gaining work experience in related occupations or activities required for the competent performance of the tasks in an occupation. It is measured in months or years. On-the-job training refers to the amount of training required after commencing work in an occupation for competent performance of the tasks in that occupation. It is measured in months or years and may be undertaken at the same time as formal training.

16. ANZSCO does not measure the skill level of an individual, rather it refers to the level of skill that is typically required to competently perform the tasks of an occupation. Skill level is an attribute of occupations, not of individuals in the labour force or of jobs. It is irrelevant whether a individual working in a job in a particular occupation, has a certain amount of training or a particular level of competence or not. For example, a person who spreads mortar and lays bricks for a living has the occupation Bricklayer, regardless of whether he or she is an exceptionally competent bricklayer with many years of experience and post-trade qualifications, or an inexperienced bricklayer with no formal qualifications and a low level of competence. The skill level of the occupation Bricklayer is determined based on that typically required for competent performance.

17. ANZSCO prescribes as relevant to a chef ‘plans and organises the preparation and cooking of food in a dining or catering establishment’.  The chef has a skill level 2.  At Unit Group level 3513, chef’s 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.   The Tasks at Unit Group level 2513 include:

    a.Planning menus, estimating food and labour costs, and ordering food supplies.

    b.Monitoring quality of dishes at all stages of preparation and presentation.

    c.Discussing food preparation issues with managers, dietitians and kitchen and waiting staff.

    d.Demonstrating techniques and advising on cooking procedures.

    e.Preparing cooking food.

    f.Explaining and enforcing hygiene regulations.

    g.May select and train staff.

    h.May freeze and preserve foods.

18. In applying cl.485.222, the Tribunal must consider each of the applicant’s degrees, diplomas or trade qualifications used by her to satisfy the cl.485.221.  In respect of each degree, diploma or trade qualification which are closely related to the applicant’s nominated skilled occupation, only the Diploma of Business was completed within six months immediately before the making of her application.

19. The applicant provided the following relevant course documents in respect each of the qualifications completed by her:

    a.Certification from TAFE Queensland dated 7 November 2017 certifying that the applicant was enrolled as a full-time, full fee-paying international student and successfully completed the Certificate IV in commercial cookery between 13 July 2015 and 23 November 2016; the Department of Hospitality between 30 January 2017 and 16 June 2017.

    b.Certificate IV in Commercial Cookery dated 23 November 2016.

    c.Diploma of Hospitality certificate dated 16 June 2017.

    d.TAFE Queensland record of results for Certificate IV in Commercial Cookery and Diploma of Hospitality.

    e.Australian College of Technology and Business Pty Ltd Record of Results in the Diploma of Business course dated 22 March 2018.

20. The applicant’s submission[7] received 2 December 2020 set out the employment and educational history of the applicant.  This submission set out the units of competence in her Diploma in Business (the Diploma).  The submission confirmed the applicant did undertake  the Diploma at the Australian College of Technology and Business Pty Ltd as ‘she thought it was an essential in fulfilling her duties’.

    [7] Tribunal file Folio 7903255 created 3 December 2020.

21. In her submission, the applicant provided the Tribunal with the Units of Competence of the Diploma course from the Australian College of Technologies and Business Pty Ltd.  The Diploma set out those units detailed below:

    a.Interpret market trends and developments.

    b.Design and develop an integrating marketing communication plan.

    c.Manage people performance

    d.Manage recruitment, selection and induction process.

    e.Lead and manage team effectiveness.

    f.Manage meetings.

    g.Undertake project work.

    h.Manage risk.

22. At the first hearing, the applicant was asked by the Tribunal to comment about, what she understands, is the connection between the Units of Competence and the tasks of a chef as detailed in ANZSCO[8].

    [8] Australian New Zealand Standard Classification of Occupations

23. The Tribunal asked the applicant about each Unit of Competence to which the applicant responded by saying that as a chef in her employment, she is part of the ‘back of house’ in the restaurant, which develops and planning menus including the consideration of the  ingredients.  The chef is involved in employing kitchen staff and interviewing applicants.  She has been with her present employer for approximately three years.  The head chef is the person to whom she is answerable, and he also has been employed for a little over three years, that is about one month ahead of the applicant.  The applicant concedes she is not directly involved in the hiring but does see the candidates’ CVs and has discussions with the head chef.

24. The Diploma course units (by their description) are management intensive. That is their scope and depth are more in line with managing an organisation rather than a small unit or section such as a kitchen. Managing recruitment, selection and induction, leading and managing team effectiveness, and managing meetings are all relevant to a business which is either an organisation or a large section of that business. By the very nature of the course descriptive headings, it is envisaged that the number of employees is significantly different. In contrast, the chef’s main function is preparation and cooking. Complimentary to that a chef may delegate sub-tasks to chefs with less experience or cooks.

25. The Diploma is more in line with a chef who having the Diploma qualification and experience wishes to integrate to the management position in the organisation.

26. The Tribunal is not satisfied that the Diploma of Business is closely related to the occupation of chef, for the reasons above.

27. As the applicant’s Diploma qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

28. Based on the above findings, the applicant does not satisfy the criteria for the grant of a Subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Ian Berry
    Member