Reyes (Migration)

[2021] AATA 1588

Reyes (Migration) [2021] AATA 1588 (14 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Allan Jacob Reyes

CASE NUMBER:  1911289

HOME AFFAIRS REFERENCE(S):          BCC2019/507255

MEMBER:Michelle East

DATE:14 May 2021

PLACE OF DECISION:  Perth

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

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 14 May 2021 at 1:29pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirements – qualifications closely related to nominated occupation –qualification in business and nominated occupation of chef – comparison of units of course and job tasks in ANZSCO description – relationship more than merely complementary – decision under review remitted

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

CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115

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 30 April 2019 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 February 2019. 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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirements were closely related to his nominated occupation.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 cl.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 before 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.

   Does the applicant meet the Australian study requirement?

7. 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:

   ·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.

8. ‘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, ‘two academic years’ is specified by the Minister in LIN 19/085 to mean at least a total of 92 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

9. The applicant provided evidence by way of letters of completion, transcripts and qualification certificates relating to a number of declared Australian study courses, including:

   25/07/2016 – 23/06/2017       Certificate III in Commercial Cookery

   24/07/2017 – 8/12/2017         Certificate IV in Commercial Cookery

   12/02/2017 – 22/06/2018       Diploma of Hospitality Management

   23/07/2018 – 7/12/2018         Advanced Diploma of Business

10. All the courses were completed at the Canberra Institute of Technology.

11. The applicant has nominated the occupation of Chef (ANZSCO 351311) in his application for which he was assessed as successful by Trades Recognition Australia on 18 March 2019.

12. Based on the evidence on the website of the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS), the Tribunal finds the duration of the Advanced Diploma of Business is 100 weeks.

13. As the requirement for a Subclass 485 visa is that the applicant must have completed at least 2 academic years of study, that is, at least 92 weeks consistent with the relevant instrument, the Tribunal is satisfied that relying on the Advanced Diploma of Business alone satisfies the ‘Australian study’ requirement in the 6 months immediately preceding the day he made his visa application.

14. The Tribunal finds that the qualifications were as a result of at least 2 academic years (as specified) study.  The Tribunal finds on the information before it that all instruction for the courses was conducted in English and that the applicant held a number of student visas which authorised study throughout this period.

15. The Tribunal also finds that the course was completed in a total of at least 16 months.

16. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application.  Therefore, the applicant satisfies cl.485.221.

    Is the qualification ‘closely related’ to the nominated occupation?

17. In addition, cl.485.222 requires each qualification used to satisfy that 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). The relevant instrument for this purpose is Legislative Instrument 18/051.

18. In this case, the applicant nominated the occupation of Chef (ANZSCO 351311) which is a skilled occupation specified in the relevant legislative instrument.  The remaining issue, therefore, is whether the applicant’s Advanced Diploma of Business is ‘closely related’ to his 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 (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115 and by the Federal Court of Australia in Constantino v MIBP [2013] FCA 1301.

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 ANZSCO which it has read 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 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 visa application was made on 17 February 2019 and the applicant completed his studies on 7 December 2018.  The Advanced Diploma of Business alone needs to be considered to determine whether the study undertaken is ‘closely related’ to the nominated occupation of ‘Chef’.

24. With respect to the Advanced Diploma of Business, the Tribunal has had regard to the Full Federal Court’s decision in Tahla v MIBP which noted the ANZSCO comprises a system of five hierarchies for classifying occupations.  At the lowest level, ANZSCO lists the occupations.  The next level is a ‘Unit Group’ followed up by a ‘Minor Group’.  Minor Groups are aggregated to form ‘Sub-Major Groups’ which are then joined at the highest level to form ‘Major Groups’.

25. ANZSCO 351311 provides that Chefs ‘plan and organise the preparation and cooking of food in dining and catering establishments’.  The 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 the 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 wait staff.

26. The Tribunal considers that the tasks of explaining and enforcing hygiene regulations, workplace safety and other tasks involving the training and development of kitchen staff are essential elements of the role of the Chef.  The Tribunal has reviewed the units undertaken by the applicant as part of his Advanced Diploma of Business and accepts the applicant has gained administrative, management and technical skills and knowledge relevant to the duties of a Chef.  The Tribunal also accepts that as a Chef he would be required to display leadership in the technical area of planning and organising the preparation and cooking of food in dining establishments as described in the ANZSCO.  Part of this would involve estimating food and labour costs relevant to the ordering of ingredients and materials and the preparation of meals.

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

28. Having considered the academic transcript of units undertaken as part of the Advanced Diploma, the Tribunal accepts that the applicant’s studies have included: managing finances, managing organisational change, providing leadership, managing innovation and improvement, developing strategic, business and marketing plans and managing risks.

29. The Tribunal accepts that being a Chef entails far more than simply being able to cook, particularly within a restaurant setting which is often high pressured, high risk and involves a large amount of staff.  The Tribunal therefore concludes that the majority of the specific unit courses undertaken as part of the Advanced Diploma of Business amount to being more than merely complementary to the tasks of a Chef as outlined in ANZSCO 351311.

30. 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 finds that the applicant’s Advanced Diploma of Business is closely related to his nominated occupation of Chef for the purposes of also meeting the criteria in cl.485.222 of Schedule 2 to the Regulations.

31. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. 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

    ·cl.485.222 of Schedule 2 to the Regulations.

    Michelle East
    Member