Reza Khan (Migration)

[2018] AATA 5124

Reza Khan (Migration) [2018] AATA 5124 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muktafe Reza Khan

CASE NUMBER:  1700964

HOME AFFAIRS REFERENCE(S):           BCC2016/3237458

MEMBER:Kira Raif

DATE:18 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 18 December 2018 at 7:46am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – qualification not closely related to his nominated occupation – Chef ANZSCO 351311 – Diploma of Management completed six months before application date – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,
Migration Regulations 1994, Schedule 2, cls 485.221, 485.222, rr 1.03, 1.15I

CASES

Chawdhury v Minister for Immigration & Anor [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Manik v MIAC [2012] FMCA 149
MIBP v Dhillon (2014) 227 FCR 525
Talha v MIBP [2015] FCAFC 115
Walia v MIBP [2015] FCCA 1949

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 and Border Protection on 13 January 2017 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 is a national of Bangladesh, born in December 1981. He applied for the visa on 29 September 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the qualifications on which the applicant relied to meet the Australian study requirement were closely related to his nominated occupation. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 17 December 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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.

5. Clause 485.221 requires the qualification used to satisfy that requirement to be 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 it is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I).

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

6. The applicant stated in his application and evidence to the Tribunal that he completed the following qualifications:

   11/12 – 11/13             Cert III in Hospitality (Commercial Cookery)

   11/13 – 05/14             Cert III in Patisserie

   07/14 – 11/14             Cert IV in Hospitality (Commercial Cookery)

   02/15 – 06/15             Diploma of Hospitality

   09/15 – 09/16            Diploma of Management

7. The applicant had nominated the occupation of Chef ANZSCO 351311 and provided with his application evidence of the skills assessment, as well as evidence of his study.

8. As the application for the visa was made in September 2016, the Tribunal finds that the only course the applicant completed in the period of six months immediately before the day the application was made was the Diploma of Management. The Tribunal finds that the applicant relied on that qualification to meet the Australian study requirement for the purpose of cl.485.221. The Tribunal must be satisfied that the Diploma of Management is closely related to the nominated occupation of a chef.

9. Neither the applicant nor his representative provided written submissions to the Tribunal to address the statutory requirements. However, a few hours prior to the hearing the applicant provided to the Tribunal evidence of his employment, including offers of employment and a job description. Neither the applicant nor his representative provided any written explanation about the relevance of these documents to the issues at hand. The applicant was represented by Mr Gurdial Singh of Aussizz Group.

10. The applicant provided to the Tribunal an offer of employment from Driftwood, located in Dhaka and the employment contract refer to the applicant’s employment commencing in September 2020. The Tribunal has considerable concerns about the authenticity of such documents as the Tribunal is not convinced that an operational business would wait for nearly two years to employ a chef to operate its kitchen. However, even assuming that the applicant intends to work for that business, it is unclear how the applicant’s employment in Bangladesh, and the nature of his duties and responsibilities, could establish the close relationship between the applicant’s qualifications and his nominated occupation. Following the hearing, the applicant provided to the Tribunal general information about the hospitality industry and the broader situation in Bangladesh, including economic reports. The Tribunal acknowledges that evidence but its relevance is also unclear. At best, it may establish that the applicant will be gainfully employed in his home country. It is difficult to see how the applicant’s situation, the nature of his future employment or the general country information can establish the close relationship between the applicant’s qualification and the nominated skilled occupation. 

11. In oral evidence to the Tribunal the applicant states that being a chef is not only about cooking but also about managing the entire kitchen. The applicant states that he needs management skills so that he can supervise people working under him and ensure that everyone adheres to company policies. He also needs to manage the human resource aspects, including visa issues if he hires staff from overseas, hiring and firing. He needs to supervise food safety and OH&S. The applicant states that as a head chef, he would be in charge of these responsibilities. The applicant states that as a chef, he must have a good relationship with food supplies and run the kitchen effectively. He needs to manage the work and ensure that everything runs efficiently. The applicant states that the management course teaches him how to manage himself and manage those working under him. He also needs to maintain appropriate stock levels and manage the financial aspects of kitchen operations. The applicant told the Tribunal that he presently works as a commis chef but as he ‘goes up the ladder’, he would have additional responsibilities and his job is not just about cooking. The applicant states that junior chefs may not have management responsibilities but the more senior the position, the more management responsibilities he would have. He intends to become a head chef and would be responsible for managing the kitchen and for that he needs management skills.

12. The Tribunal notes, however, that the applicant has nominated the occupation of a chef, not that of a head chef or a restaurant manager. While the applicant may well wish to have a more senior role in the future, the Tribunal must consider the applicant’s nominated occupation and not the occupation he plans to engage in in the future. As Smith FM stated in Pasula at [23]:

    … the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law.

13. Although the Court in that case considered a different legislative provision, the same reasoning applies in relation to the clause in question.

14. The Tribunal has considered the applicant’s evidence about the nature of the tasks performed by a chef and the applicant’s claim that the more senior chefs are primarily involved in management rather than hands-on cooking. The Tribunal is not prepared to accept that evidence. In the Tribunal’s view, the tasks outlined by the applicant are not consistent with the description for the nominated occupation set out in ANZSCO.

15. ANZSCO provides the following in relation to the nominated occupation of a chef.

    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oplanning menus, estimating food and labour costs, and ordering food supplies

    omonitoring quality of dishes at all stages of preparation and presentation

    odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    odemonstrating techniques and advising on cooking procedures

    opreparing and cooking food

    oexplaining and enforcing hygiene regulations

    omay select and train staff

    omay freeze and preserve foods

    
    Occupation:

    351311 Chef

16. In the Tribunal’s view, there are very few, if any, management responsibilities that form part of the job. The Tribunal acknowledges that some staff selection and training are part of the work of a chef as described in ANZSCO, however, the Tribunal is not satisfied that management skills – which the applicant would have acquired as part of his Diploma of Management - are associated with carrying out the occupation of a chef. As the court confirmed in Walia v MIBP [2015] FCCA 1949, consideration must be given to the whole of the Australian studies and the whole of the nominated skilled occupation. The Tribunal is not satisfied that management skills form part of the whole of the nominated skilled occupation.

17. The applicant submits that ANZSCO should not be ‘taken religiously’ and it is only a guide which may not provide an accurate description of what chefs are expected to do. The Tribunal notes, in that regard, Raphael FM’s comments in Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 at 12:

    If the Tribunal was required to look at each individual’s specific job description then the requirements for the grant of the visa would take on a subjective element that would appear to be inconsistent with the scheme of the Migration Act. The ASCO definitions provide a useful and necessary guide which allows for consistency in decision-making that is of benefit to applicants, education providers, employers and decision-makers. It should not lightly be replaced by an applicant’s definition based upon his own employment conditions.

18. The Tribunal also relies on the reasoning in Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115 which emphasize the significance of ANZSCO in determining the close relationship. The Tribunal thus prefers the description for the occupation set out in ANZSCO rather than the applicant’s own description of what he does in the course of his employment. Importantly, the Tribunal must consider the objective standard for the occupation and not what the applicant himself does, or intends to do, in his role. While the Tribunal accepts the applicant’s evidence that the management qualification will provide him with job opportunities, including those in Bangladesh, the issue before the Tribunal is the close relationship with the nominated occupation and not the applicant’s future intention and job aspirations.

19. The applicant states that he wants to learn from the Australian environment to be able to run a restaurant properly in Bangladesh. Learning managing skills in Australia would help him to do that. The applicant states that Australia is advanced in the field and he wants to acquire the skills to be able to work as a chef or a head chef in Bangladesh. He had to acquire the management skills in order to know and understand the different roles in the kitchen and to be able to manage the kitchen effectively in the future. The applicant states that hospitality industry in Bangladesh is booming and if he is familiar with the Australian standards, he will be able to disseminate his skills and knowledge to the industry in his home country. In the Tribunal’s view, the applicant may have established, at best, that the management skills may be helpful in his future role of a head chef. However, being helpful is not sufficient. There must be a close relationship between the qualification and the nominated occupation. In the Tribunal’s view, the fact that the applicant may utilise management skills when running his own business goes no further than establishing, at best, the usefulness of the management qualification to the occupation. However, the legislation requires something more. It needs to be more than complementary or useful. It needs to be closely related. While the term ‘closely related’ is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be ‘closely related’ to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient for the Tribunal to consider whether the qualification is useful, complements or has a broader relevance to the occupation.

20. The applicant argues that Diploma of Hospitality Management was not available at the time he was undertaking his studies, otherwise he would have completed that course. In his case, he had to complete two separate courses, the Diploma of Hospitality and the Diploma of Management. The applicant states that the Diploma of Management was designated for the hospitality industry. The applicant states that the Diploma of Hospitality Management is normally accepted as being closely related to the occupation of a chef. The applicant states that the units in the Diploma of Hospitality Management would be similar to those he had undertaken in the management course. In the Tribunal’s view, it is unhelpful to undertake a comparison of a qualification which the applicant had not completed (Diploma of Hospitality Management) to the qualification which he did complete (Diploma of Management). The close relationship must exist between the applicant’s qualification and the nominated occupation, not between the applicant’s qualification and a different qualification which may or may not be relevant to the nominated occupation.

21. The Tribunal is not satisfied that the management skills the applicant acquired in his Diploma of Management form any meaningful part of the skills that are associated with carrying on the occupation of a chef.

22. Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Management is closely related to the nominated occupation of a chef. The Tribunal is not satisfied that each of the qualifications used to satisfy the Australian study requirement is closely related to the nominated occupation. The Tribunal is not satisfied the applicant meets cl.485.222.

    Conclusion

23. 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

24. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Kira Raif
    Senior Member