Quach (Migration) - [2020] AATA 3018

Quach (Migration) [2020] AATA 3018 (18 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tan Duy Quach
CASE NUMBER:  1729515
HOME AFFAIRS REFERENCE(S):          BCC2017/3315928
MEMBER:Warren Stooke AM
DATE:18 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 18 May 2020 at 4:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – occupation of Chef – Australian study requirement – study closely related to the nominated skilled occupation – Bachelor of Hospitality course – course completed in the previous 6 months – qualification not required to practise occupation – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.111, 485.221, 485.222; rr 1.03, 1.15, 2.26
CASES
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Tobon v Minister for Immigration & Anor (2014) FCCA 2208
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 Immigration and Border Protection on 7 November 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 September 2017. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) 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.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the courses of study immediately before the application of the 485 visa were not closely related to the occupation of Chef – ANZSCO 351311.
The applicant appeared before the Tribunal on 12 May 2020 to give evidence and present arguments.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 7 November 2017 and that he understood the content of the decision. In this regard, the applicant stated that the delegate refused the application because the Bachelor of Hospitality was not closely related to the nominated occupation of Chef.
The applicant was represented in relation to the review by his registered migration agent.
The applicant informed the Tribunal that he had lodged a 187 visa application with the Department, which was recently the subject of proceedings before the Administrative Appeals Tribunal and that the application had been remitted to the Department for reconsideration (11 March 2020). Given these circumstances, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Quach (Migration) [2020] AATA 3018
Case: [2020] AATA 3018
Decision Date: 18 May 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr. Quach, who sought to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. The dispute centred on whether Mr. Quach met the requirements of clauses 485.221 and 485.222 of Schedule 2 to the Regulations, specifically the 'Australian study requirement' and the requirement that any qualification used to satisfy this must be closely related to his nominated skilled occupation of Chef.

The Tribunal was required to determine if Mr. Quach's Bachelor of Business (Hospitality and Tourism Management) course, completed between March 2014 and July 2017, was "closely related" to the occupation of Chef, as defined by ANZSCO Code 3513. This determination was crucial for satisfying the Australian study requirement within the six months preceding his visa application.

The Tribunal reasoned that while Mr. Quach held qualifications in hospitality and commercial cookery and had extensive experience as a chef, his Bachelor of Business degree did not meet the "closely related" criterion. The subjects within the degree, such as Accounting for Managers, Accommodation Management, Quantitative Analysis, Business Ethics, Commercial Law, and Marketing, were found to be general business subjects rather than directly related to the practical duties and skills of a chef. The Tribunal concluded that these subjects, even if they enhanced knowledge of the hospitality industry, did not establish a close relationship to the nominated occupation as required by the regulations.

Consequently, the Tribunal affirmed the decision not to grant Mr. Quach a Skilled (Provisional) (Class VC) visa, as he failed to satisfy the relevant criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The applicant is a 30 year old from Vietnam, who confirmed to the Tribunal the completion of the following courses of study:a.Bachelor of Business (Hospitality and Tourism Management) from 19 March 2014 to 14 July 2017;b.Diploma of Hospitality – completed 18 December 2010;c.Certificate IV in Commercial Cookery – completed 7 August 2010. The applicant provided evidence that he has been working part-time and full-time as a cook and chef for 10 years and that he is working as a chef at the moment at the Chop Sticks Noodle Bar in Lorne. The applicant claimed that the Bachelor of Business was closely related to the occupation of chef, as he was provided with this advice from his agent and that a friend also advised him of this view. The applicant stated that the core units were closely related to the occupation and that the decision of ‘not closely related’ was given because of some subjects. The applicant stated that ANZSCO requires more duties of a chef and that the description is a short brief, but in reality, they require more. In this regard, the applicant referred to the course transcript that was provided to the Department. [Department File: Folios 14-15] The Tribunal read out the subjects involved in the Bachelor of Business course, which had been provided by the applicant to the Department and included the following subjects:a.Accounting for Managers;b.Accommodation Management;c.Quantative Analysis;d.Business Ethics;e.Commercial Law;f.Emerging Issues;g.Logistics and Supply Chain Management;h.Performance Management;i.Integrated Marketing Communications;j.Marketing Research Essentials. The Tribunal asked the applicant, which subjects in the Bachelor of Business he considered to be related to the occupation of chef (ANZSCO Code: 3513) and he replied: “All of them” and that they “enhance the knowledge of the hospitality industry”. The applicant provided evidence that hospitality in keeping with globalisation requires the resolution of issues and that after studying his Diploma he wanted to improve his knowledge though the study of hospitality management. He stated that he applies the studies in his tasks and duties and that after graduating with his degree he wanted experience before going back to Vietnam.

Decision

Reasons for decision

On the basis of 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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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