KIM (Migration)

[2018] AATA 126

KIM (Migration) [2018] AATA 126 (1 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nari KIM

CASE NUMBER:  1705490

DIBP REFERENCE(S):  BCC2016/4407205

MEMBER:Stavros Georgiadis

DATE:1 February 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations; and

·cl.485.222 of Schedule 2 to the Regulations.

Statement made on 01 February 2018 at 5:27pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Skilled Graduate) – Satisfied the ‘Australian study’ requirement – Skills requirements – Qualifications 'closely related' to the nominated occupation

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15F, 1.15I, 2.26AC(6), Schedule 2 cls 485.111, 485.221, 485.222

CASES

Chawdhury v MIAC [2010] FMCA 275

Constantino v MIBP [2013] FCA 1301

MIBP v Dhillon (2014) 227 FCR 525

Prasad v MIAC [2012] FCA 591

Talha v MIBP [2015] FCAFC 115

Uddin v MIAC [2010] FCA 1281

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 March 2017 to refuse to grant the applicant a Skilled (Provisional) Temporary Graduate (Class VC) (Graduate Work) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 December 2016. At the time the visa application was lodged, Class VC contained two subclasses, 485 and 487. The completed application form indicates that the relevant subclass in this case is Subclass 485, the criteria for which 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 visa because he considered the applicant did not satisfy Schedule 2 to the Regulations as the applicant’s Diploma of Food Processing from TAFE SA was completed more than 6 months prior to lodging the visa and the delegate found the applicant therefore failed to meet the requirements of cl.485.221; and because the delegate considered the applicant’s Diploma in Leadership Management is not study ‘closely related’ to the applicant’s nominated skilled occupation of Chef (ANZSCO 351311) to meet the ‘Australian study’ requirement under cl.485.222.

4. The applicant appeared before the Tribunal on 1 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies 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).

   Does the applicant meet the ‘Australian study’ requirement?

8. Under r.1.15F(1) of the Regulations, a person satisfies the 'Australian study’ requirement if the person satisfies the Minister (or this Tribunal on review) 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.

9. '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, '2 academic years' is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000 (ESOS Act).

10. The applicant has provided evidence of completing a Diploma of Food Processing from TAFE SA (20 August 2012 to 5 July 2013) with her qualification parchment issued on 1 November 2013 and also a Diploma of Leadership and Management from Salford College (26 October 2015 to 22 November 2016) with her qualification parchment issued on 7 December 2016.  She had earlier completed other (Certificate III and IV) courses of study commenced from Semester 1 in 2011, some units of which were given status recognition towards her Diploma of Food Processing.

11. Based on evidence set out on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds that the Diploma of Food Processing (Specialising in Baking - FDF50110) undertaken by the applicant is registered for 52 weeks and that all instruction was in English.

12. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years study - that is, at least 92 weeks of study consistent with the relevant instrument IMMI 09/040, the Tribunal finds that relying on her Diploma of Food Processing course alone, the applicant would not satisfy the 'Australian study’ requirement in the 6 months immediately preceding the day her Subclass 485 visa application was made on 30 December 2016 as required by cl. 485.221 of Schedule 2 to the Regulations.

13. However, the 'Australian study’ requirement does not require visa applicants to have completed a single course of study of 2 academic years' duration. Accordingly, it is necessary to consider whether the applicant can additionally rely on her Diploma of Leadership and Management from Bandicoot Group trading as Salford College (088677E) to meet the 'Australian study’ requirement. The CRICOS website confirms that the Diploma of Leadership and Management course is registered for 54 weeks and that all instruction is in English. Accordingly, the Tribunal finds that the above registered courses undertaken by the applicant at TAFE SA and at Salford College have a total registered duration of 106 weeks - i.e. in excess of the requisite 92 weeks.  The Tribunal accepts that both courses were in English instruction.

14. Departmental records confirm that during material times the courses were undertaken, the applicant was the holder of Student (Class TU 572) visas authorising her to study in Australia.

15. Based on the evidence outlined above, the Tribunal finds that the applicant satisfies the 'Australian study’ requirement in the 6 months immediately preceding the date of her Subclass 485 visa application.

16. Therefore, she meets cl. 485.221 of Schedule 2 to the Regulations.

    Are the qualifications 'closely related' to the nominated occupation?

17. Clause 485.222 requires that each of the qualifications used to satisfy the ‘Australian study’ requirement is ‘closely related’ to the applicant's nominated skilled occupation. An occupation is a 'skilled occupation' 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 that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I).

18. The applicant nominated the skilled occupation of Chef (ANZSCO 351311) which is a skilled occupation specified in the relevant legislative instrument. The remaining issue, therefore, is whether each of the applicant's Diploma of Food Processing from TAFE SA and her Diploma of Leadership and Management from Salford College are ‘closely related’ to her nominated skilled occupation.

19. The term 'closely related' is not defined in the Regulations. However, the term has been considered by the Full Federal Court of Australia in the decisions of MIBP v Dhillon and Talha v MIBP as well as the Federal Court of Australia's in its decision in Constantino v MIBP. Accordingly, the Tribunal has been guided by these cases in its consideration of the issue presented in the applicant's case. [Citations provided at the end of this decision.]

20. 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 two things. Although the words 'closely related' do not require an exact correspondence, the relationship must be more than merely complementary.

21. In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the Australian and New Zealand Standard classification of Occupations (ANZSCO) and has read ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.

22. The Tribunal has proceeded on the basis that it is appropriate to objectively consider the relationship of the applicant's qualification (or, in this case, two qualifications) to the ANZSCO definition of the occupation rather than relying on the applicant's own description of what the occupation entails, or the applicant's own view of the proximity of the qualifications to the nominated occupation. Ultimately, the Tribunal has decided whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation by carrying out an evaluative exercise of the whole of the Australian studies compared with the whole of the nominated occupation.

23. The Tribunal accepts from the applicant’s submissions and the unit courses undertaken, that the applicant's Diploma of Food Processing (Specialising in Baking) completed with TAFE SA on 5 July 2013 is closely related to her nominated occupation of Chef.

24. Turning to the applicant’s Diploma of Leadership and Management, as noted above the delegate found that this qualification was not closely related to the applicant’s nominated skilled occupation of Chef.  The delegate considered that although these qualifications may possibly assist the applicant in her future career plan, the regulation states that the course must be closely related to her nominated skilled occupation and does not specify any assessment consideration by the delegate towards future career plans.

25. The Tribunal raised the issue as to whether the qualification meets the requirements of being closely related to the nominated occupation of Chef having regard to higher hierarchies and groupings in ANZSCO of which the occupation forms part. The Tribunal discussed this issue with the applicant at the hearing. Her oral evidence and submission is essentially that the knowledge and skills gained as a result of undertaking the Diploma of Leadership Management course are more than merely complementary to the role of Chef. The submission is that the skills and knowledge gained from the course are used in the professional life of a Chef and gave the example of having learned how to deal with conflict situations between staff in the kitchen as well as gaining knowledge and skills in the important aspects of restaurant management to the extent that a Chef is normally engaged.  This includes: customer service and satisfaction, recruitment and developing staff including performance of kitchen staff, planning and ordering supplies such as raw materials, assisting management in the costing and budgeting of meal options, planning and marketing and other administrative support systems essential for the successful running of a restaurant or food establishment.

26. The Full Federal Court's decision in Talha v MIBP referred to above notes that ANZSCO comprises a system of 5 hierarchies for classifying occupations. At the lowest level of this hierarchy, ANZSCO has a list of 'Occupations'. The next level of hierarchy is known as a 'Unit Group'. The next step up the ladder of the ANZSCO hierarchy is known as a 'Minor Group'. Minor Groups are then aggregated to form 'Sub-Major Groups' which, in turn, step up and are aggregated at the highest level to form 'Major Groups'.

27. ANZSCO 351311 states that Chefs ‘plan and organise the preparation and cooking of food in dining and catering establishments.’ The applicant's nominated occupation forms part of a broader Unit Group 351 ‘Food Trades Workers’, and Group 3 ‘Technicians and Trades Workers’.  ANZSCO sets out that Technicians and Trades Workers: ‘perform a variety of skilled tasks, applying broad or in-depth technical, trade or industry specific knowledge, often in support of scientific, engineering, building and manufacturing activities.’  Although there is no specific mention in ANZSCO relating to ‘management’ duties there is clear reference to monitoring quality of dishes which in turn would involve discussion and performance management of staff as well as discussing food preparation issues with managers, dietitians, kitchen and waiting staff. 

28. The Tribunal considers that the tasks of explaining and enforcing hygiene regulations, workplace safety and other tasks involving the selection, training and development of kitchen staff are essential elements of the role of Chef.  Indeed the applicant’s evidence is that she has been engaged as Pastry Chef to food establishments including a winery restaurant for some two years following completion her qualifications where she utilises all the aforementioned skills, knowledge and training to carry out the tasks of Chef.  The Tribunal accepts the submission that, by completing the Diploma of Leadership and Management the applicant has gained administrative, management and technical skills and knowledge relevant to the duties of a Chef.The Tribunal also accepts that, as Chef, she would be required to display leadership in the technical areas of planning and organising the preparation and cooking of food in dining establishments as described in ANZSCO.

29. Having identified information in ANZSCO in relation to the occupation of Chef, the Tribunal has considered the applicant's unit studies in the Diploma of Leadership and Management and compared these to the specific tasks of Chef to determine if they are more than merely complementary.  In considering whether these qualifications are ‘closely related’ to an applicant's nominated occupation, the Tribunal is not undertaking an assessment of whether any skills obtained from the qualification would benefit the applicant or be useful in a particular business context. Rather, the Tribunal has considered objectively whether the qualification itself is 'closely related' to the nominated occupation having regard to ANZSCO and the requisite duties as a whole.

30. From a consideration of the academic transcript of units undertaken as part of the Diploma of Leadership and Management course, the Tribunal accepts that the applicant’s studies have included: managing operational plans, customer service, workplace safety and risk, leading and managing teams and human performance, communicating with influence, managing budgets and financial plans, and other relevant units - readily transferable and applicable to the tasks of Chef described in ANZSCO. The Tribunal concludes that the majority of specific unit courses undertaken as part of the Diploma of Leadership and Management course amount to that course being more than merely complementary to the job tasks of Chef as outlined in ANZSCO 351311.

31. Having carefully considered all of the evidence before it and comparing the whole of the applicant’s Australian studies with the whole of the nominated occupation, the Tribunal accepts that the applicant's Diploma of Food Processing and Diploma of Leadership and Management qualifications are both closely related to her nominated occupation of Chef for the purposes of also meeting the criteria in cl.485.222 of Part 485 of Schedule 2 to the Regulations.

32. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the grant of a Subclass 485 visa.

    DECISION

33. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations; and

    ·cl.485.222 of Schedule 2 to the Regulations.

    Stavros Georgiadis
    Member

    
    

    References and Citations

    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].

    Uddin v MIAC [2010] FCA 1281, North J at [10] - [12]; Constantino v MIBP [2013] FCA 1301, Jacobson J; and, MIBP v Dhillon (2014) 227 FCR 525, Griffiths, Mortimer and Beach JJ at [20].
    Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ at [56].
    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.
    Talha v MIBP [2015] FCAFC 115, Griffiths, Mortimer and Beach JJ, at [53] Ibid at [53] endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301, Jacobson J at [26].