Sandip Kaur (Migration) - [2021] AATA 1174

Sandip Kaur (Migration) [2021] AATA 1174 (10 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sandip Kaur Sandip Kaur
CASE NUMBER:  1905659
HOME AFFAIRS REFERENCE:               BCC2018/5725043
MEMBER:L. Symons
DATE:10 February 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 10 February 2021 at 5:15pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Chef – qualification was not closely related to the nominated occupation –decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.222
CASES
Tobon v MIBP [2014] FCCA 2208
Talha v MIAC [2015] FCAFC 115
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 Home Affairs on 19 February 2019 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 19 December 2018. 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 because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because he was not satisfied that each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
The applicant appeared before the Tribunal by telephone on 31 August 2020 to give evidence and present arguments. She was represented in relation to the review by her registered migration agent, Yashpal Edra, who attended the hearing by telephone.
On 4 January 2021, the Tribunal made a decision on the review. On 13 January 2021, the Tribunal received an email letter from the applicant’s migration agent indicating that the Tribunal had made a jurisdictional error as paragraph 17 of the Decision Record indicated that the applicant had been given further time after the hearing to provide additional evidence and submissions and had not done so but post hearing submissions had been lodged with the Tribunal.
A review of the Tribunal’s file indicated that post hearing submissions were received on 7 September 2020. As the decision made on 4 January 2021 was made without consideration of submissions made by the applicant’s migration agent, the Tribunal was satisfied that a jurisdictional error had been made. Therefore, on 14 January 2021 the Tribunal made a decision to reopen the case for reconsideration. On 15 January 2021, the Tribunal wrote to the applicant’s migration agent and informed him of this decision.
Having reconsidered the case, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant is seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream which includes cl.485.222 of Schedule 2 to the Regulations. Clause 485.222 requires that each degree, diploma or trade qualification used to satisfy the Australian study requirement is ‘closely related’ to her nominated skilled occupation. She has nominated the skilled occupation of Chef (ANZSCO 351311). The issue in the present case is whether she meets this requirement.
Relevant law
The term 'closely related' is not defined in the legislation but it has been considered by the Courts which have held that the connection between the two things do not require an exact correspondence[1] but must be more than merely complementary.[2]
[1] MIBP v Dhillon (2014) 227 FCR 525.
[2] Uddin v MIAC [2010] FCA 1282.
In making the assessment, it is necessary to focus on the nominated occupation rather than on the applicant’s claimed or proposed occupation or career path. The Courts have held that the decision maker, in this case the Tribunal, is entitled to give substantial weight to the contents of the Australian and New Zealand Standard Classification of Occupations (ANZSCO) descriptions.[3]
[3] Manik v MIAC [2012] FMCA 149 citing Shukla v MIAC [2010] FMCA 625, Kabir v MIAC [2010] FMCA 577 and Chawdhury v MIAC [2010] FMCA 275.
More recent authority suggests that the nature of the nominated occupation must be determined by reference to ANZSCO[4] and that the ANZSCO code needs to be read as a whole including, not only the statement of tasks specified in the relevant unit group or at the lower level of the occupation itself, but also relevant information in the higher groupings into which the nominated occupation falls.[5]
[4] Talha v MIAC [2015] FCAFC 115.
[5] Ibid.
It is also appropriate to objectively consider the relationship of the applicant's qualification or 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.[6]
[6] Chawdhury v MIAC [2010] FMCA 275.
Where more than one qualification is being used to satisfy the study requirement, all the courses must be closely related to the nominated skilled occupation. This requires a comparison between each qualification and the skilled occupation, not a comparison between the two or more qualifications.[7]
[7] Manik v MIAC [2012] FMCA 149 at [23] to [24], upheld on appeal in Manik v MIAC [2012] FCA 619.
It is ultimately a matter for the decision-maker, in this case the Tribunal, to decide whether the applicant's Australian qualifications are 'closely related' to the nominated skilled occupation and, in carrying out the evaluative exercise, it is critical that the whole of the Australian studies be compared with the whole of the nominated skilled occupation.[8] The wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it. [9]
Is each degree, diploma or trade qualification used by the applicant to satisfy the Australian study requirement closely related to her nominated skilled occupation?
[8] Talha v MIAC [2015] FCAFC 115 at [53], endorsing MIBP v Dhillon (2014) 227 FCR 525 at [20] and Constantino v MIBP [2013] FCA 1301 at [26].
[9] Constantino v MIBP [2013] FCA 1301 at [27].
The applicant nominated the skilled occupation of Chef (ANZSCO 351311) which is a skilled occupation specified in the relevant legislative instrument IMMI 18/051. In her visa application, she stated that the qualifications she was relying on to satisfy the Australian study requirement are a Certificate III in Commercial Cookery, a Diploma of Hospitality Management, a Certificate IV in Commercial Cookery and a Diploma of Leadership and Management. However, the supporting documents indicate that she was granted a Diploma of Hospitality and not a Diploma of Hospitality Management.
The issue, therefore, is whether each of the applicant’s Certificate III in Commercial Cookery, Diploma of Hospitality, Certificate IV in Commercial Cookery and Diploma of Leadership and Management are closely related to her nominated skilled occupation of Chef (ANZSCO 351311).
The applicant provided the Department and the Tribunal with a number of documents to support her application for a subclass 485 visa. This included the following:
·A letter dated 22 September 2014 from the Australis Institute of Technology and Education in relation to the applicant completing a Certificate III in Commercial Cookery on 6 July 2014.
·Certificate III in Commercial Cookery issued by the Australis Institute of Technology and Education on 1 April 2015.
·Statement of Results for the Certificate III in Commercial Cookery issued by the Australis Institute of Technology and Education.
·A letter dated 28 August 2015 from the Australis Institute of Technology and Education in relation to the applicant completing a Diploma of Hospitality on 16 August 2015.
·Diploma of Hospitality issued by the Australis Institute of Technology and Education on 20 October 2015.
·Statement of Results for the Diploma of Hospitality issued by the Australis Institute of Technology and Education.
·A letter dated 5 December 2017 from the Australian Academy of Management and Science in relation to the applicant completing a Certificate IV in Commercial Cookery on 5 December 2017.
·Certificate IV in Commercial Cookery issued by the Australian Academy of Management and Science on 5 December 2017.
·Statement of Attainment issued by Central College on 3 April 2017 in relation to the Certificate IV in Business.
·Certificate IV in Business issued by Central College on 23 March 2018.
·Statement of Completion dated 14 September 2018 from Central College in relation to the applicant completing a Diploma of Leadership and Management on 14 September 2018.
·Academic Transcript for the Diploma of Leadership and Management issued by Central College.
·A Provisional Skills Assessment from Trades Recognition Australia dated 4 April 2019 indicating that the applicant’s application was successful for the occupations of Chef (ANZSCO 351311) and Cook (ANZSCO 351411).
The Tribunal gave the applicant further time after the hearing to provide additional evidence and submissions. The Tribunal did not receive any additional evidence. The Tribunal received post hearing submissions dated 7 September 2020.
The Tribunal accepts that the applicant’s Certificate III in Commercial Cookery issued by the Australis Institute of Technology and Education on 1 April 2015, her Certificate IV in Commercial Cookery issued by the Australian Academy of Management and Science on 5 December 2017 and her Diploma of Hospitality issued by the Australis Institute of Technology and Education on 20 October 2015 are closely related to her nominated skilled occupation of Chef (ANZSCO 351311).
The Tribunal accepts that the applicant’s application to Trades Recognition Australia for a Provisional Skills Assessment was successful on 4 April 2019 for the occupations of Chef (ANZSCO 351311) and Cook (ANZSCO 351411). The letter from Trades Recognition Australia does not indicate what qualifications were relied on in making the assessment.
The Department was not satisfied that the applicant’s Diploma of Leadership and Management are closely related to her nominated skilled occupation of Chef (ANZSCO 351311). This is also an issue before the Tribunal.
During the hearing, the Tribunal discussed with the applicant how her Diploma of Leadership and Management is closely related to her nominated skilled occupation of Chef (ANZSCO 351311). She stated that the studies she has done have helped her to work as a chef. Her plan is to return to India and open her own restaurant. The Diploma of Leadership and Management will help her to be the leader in her own restaurant. Subjects like ‘Work Health and Safety’ are relevant to a Chef. It has taught her about how to be careful in the kitchen and how to take care of staff. The Diploma of Leadership and Management also helped her to plan menus and discuss food preparation. The subject ‘Introduction to Marketing’ has helped her in relation to finding out about her competitors and in food preparation.
The applicant gave evidence that the subject ‘Financial Management’ in her Diploma of Leadership and Management have helped her with estimating food and labour costs, how to order food supplies and employ staff and budgeting. The subject ‘Operational Plan’ has helped her with training staff and demonstrating cooking techniques. Subjects like ‘Workplace Effectiveness’ and ‘Learning, Development and Innovation’ have helped her in her role as a Chef. Her other studies taught her a lot about cooking but there is a lot more she needs to know to be a Chef and own her own restaurant. She needs all these skills to be a business owner. Her Diploma of Leadership and Management is closely related to her nominated skilled occupation of Chef.
The Tribunal accepts the applicant’s evidence that she wishes to become a business owner and own her own restaurant. The Tribunal accepts that the knowledge she gained in her Diploma of Leadership and Management would assist her in the roles of restaurant manager and business owner. However, her wish to own her own restaurant and become a business owner is not a relevant consideration when assessing the relationship between her Diploma of Leadership and Management and her nominated skilled occupation of Chef (ANZSCO 351311). It is necessary for the Tribunal to focus on her nominated occupation rather than on her claimed or proposed occupation or career path.
The Tribunal raised this as an issue with the applicant. She responded that when she works outside, she feels that she needs to know more. It helped her a lot inside the kitchen after she finished this course. Her evidence is that she currently works in a restaurant part time as a Chef and part time as a “Manager outside”.
The Tribunal has considered ANZSCO in its assessment of whether the applicant’s Diploma of Leadership and Management is closely related to her nominated skilled occupation of Chef (ANZSCO 351311). ANZSCO classifies occupations in a hierarchy of five levels. The lowest level comprises a list of occupations where each occupation is described in detail. The second level is a grouping of a number of occupations known as a Unit Group, the third level is the amalgamation of a number of Unit Groups to form a Minor Group, the fourth level is the amalgamation of a number of Minor Groups to form a Sub Major Group and the fifth level is the amalgamation of a number of Sub Major Groups to form a Major Group. In this case, the nominated occupation in the lowest level of Occupation is Chef (ANZSCO 351311).
The ANZSCO description for the specific occupation of Chef (ANZSCO 351311) is plans and organises the preparation and cooking of food in a dining or catering establishment. Skill level 2. ANZSCO describes the Unit Group 3513 Chefs as chefs plan and organise the preparation and cooking of food in dining and catering establishments. Indicative Skill Level: AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). The tasks include the following:
·planning menus, estimating food and labour costs, and ordering food supplies
·monitoring quality of dishes at all stages of preparation and presentation
·discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff
·demonstrating techniques and advising on cooking procedures
·preparing and cooking food
·explaining and enforcing hygiene regulations
·may select and train staff
·may freeze and preserve foods
The ANZSCO Minor Group 351 Food Trades Workers description is that food trades workers bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments. Indicative Skill Level: AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2) or AQF Certificate III including at least two years of on-the-job training or AQF Certificate IV or at least three years of relevant experience (ANZSCO Skill Level 3). The tasks include the following:
·checking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations
·planning menus, estimating food and labour costs, and ordering food supplies
·monitoring quality of food at all stages of preparation and presentation
·preparing meat for sale and baking bread, cakes and pastries
·preparing food and cooking using ovens, hotplates, grills and similar equipment
·portioning food, placing it in dishes, and adding gravies, sauces and garnishes
The ANZSCO Sub-Major Group 35 Food Trades Workers description is that food trade workers bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments. Indicative Skill Level: AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant experience (ANZSCO Skill Level 2) or AQF Certificate III including at least two years of on-the-job training or AQF Certificate IV or at least three years of relevant experience (ANZSCO Skill Level 3). The tasks include the following:
·checking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations
·planning menus, estimating food and labour costs, and ordering food supplies
·monitoring quality of food at all stages of preparation and presentation
·preparing meat for sale and baking bread, cakes and pastries
·preparing food and cooking using ovens, hotplates, grills and similar equipment
·portioning food, placing it in dishes, adding gravies, sauces and garnishes
The ANZSCO Major Group 3 Technicians and Trades Workers description is 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. Indicative Skill Level: AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of experience (ANZSCO Skill Level 2) or AQF Certificate III including at least two years of on-the-job training or AQF Certificate IV or at least three years of relevant experience (ANZSCO Skill Level 3). The tasks include the following:
·carrying out tests and experiments and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals
·providing technical support to users of computer hardware and software
·fabricating, repairing and maintaining metal, wood, glass and textile products
·repairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment
·constructing, repairing, fitting-out and finishing buildings and other structures
·operating printing and binding equipment
·preparing and cooking food
·shearing, caring for, training and grooming animals, and assisting Veterinarians
·propagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events
·cutting and styling hair
·operating chemical, gas, petroleum and power generation equipment
·providing technical assistance for the production, recording and broadcasting of artistic performances
The Tribunal has considered the submissions made by the applicant’s migration agent. In pre-hearing submissions dated 24 August 2020, he stated that all chefs are in leadership roles but not all chefs have learned how to be effective leaders. Besides being a skilled culinarian, a chef is also a leader. He referred to leadership styles and studies of successful business leaders. He referred to the subjects undertaken by the applicant in her Diploma of Leadership and Management and submitted that they translate into “practical actions” in the role of a chef through personal integrity, clear goals with high standards, develop self-disciple in themselves and others (sic), skilled leaders are master communicators, live what you preach, the best chef leaders are mentors, understand the purpose of disciplinary action, personal awareness of one’s impact upon others, good leaders share credit, persuasion which leads to selflessness and inspires people to reach beyond what is easy.

The applicant’s migration agent submitted that the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management allows a person to have a career as a chef but those owning a restaurant with managerial and business skills will only get a chance to shine through leadership and management skills. He submitted that the Diploma of Leadership and Management is “highly related” to the occupation of chef as it helped the applicant to refine her communication skills, develop awareness of management styles, identify gaps that are holding her back and unpack the skills needed to help the business grow.
The Tribunal did not find these submissions to be helpful as, for the most part, they were not based on evidence before the Tribunal, did not make any specific reference to the ANZSCO descriptions and tasks for the nominated skilled occupation of Chef (ANZSCO 351311) or indicate their relevance to those tasks. The submissions also referred to managing a restaurant and owning a business. The applicant did not nominate the occupations of restaurant manager or restaurant owner or business owner. She nominated the occupation of Chef (ANZSCO 351311). Her claimed or proposed occupation or career path is not a relevant consideration for the Tribunal.
In post-hearing submissions dated 7 September 2020, the applicant’s migration agent referred to Departmental policy and submitted that the critical factor in determining whether a qualification is closely related to the nominated skilled occupation is whether the skill sets underpinning the qualifications are directly transferable to the nominated skilled occupation in terms of both subject matter and the level of qualification at which those skills were obtained. He referred to the ANZSCO description for the Occupation of Chef (ANZSCO 351311) and the tasks in ANZSCO Unit Group 3513 Chefs and submitted that cooking is not the only function of a Chef. He submitted that the Chef’s role primarily is in managing the overall kitchen, controlling kitchen costs, selecting and training staff, estimating costs, liaising with suppliers and creating menus.
The applicant’s migration agent submitted that, although there is no specific mention in ANZSCO to ‘management’ duties there is clear reference to monitoring the quality of dishes which would involve discussion and performance management of staff and discussing food preparation issues with managers, dietitians, kitchen and waiting staff. He submitted that preparing and cooking food constitutes less than 10% of a Chef’s job and more than 90% of the job relates to planning and organising the preparation and cooking of food which includes activities like demonstrating techniques and advising on cooking procedures, explaining and enforcing hygiene regulations and selecting and training staff. He submitted that the primary role of a Chef is to manage a kitchen with some limited specialised cooking tasks. There is no evidence before the Tribunal to support these submissions and the Tribunal does not accept that preparing and cooking food constitutes less than 10% of a Chef’s job and 90% of the job relates to other tasks.
The applicant’s migration agent submitted that a Chef is an entrepreneur, a salesman and a public relations person. He went on to make a detailed submission on the different roles and tasks undertaken by a Chef which went beyond the ANZSCO descriptions and tasks with no reference to what evidence these submissions were based on. For instance, he made generalised submissions such as a Chef organises, coordinates and oversees cooking processes and all activities within the café/restaurant, a Chef is responsible for growing and developing the product and profitability of the business, a Chef is required to possess revenue and performance management competency which includes analysis and management of income, expenditures and revenue and performance evaluation, a Chef should be able to understand and analyse the financial statement to meet the demands of the operation etc. These submissions are not based on any evidence before the Tribunal and the Tribunal does not accept them.
In his submissions, the applicant’s migration agent submitted that the labour market is looking for professionals who have combined knowledge and skills consisting of culinary skills and business/management skills to enhance productivity. He submitted that, as a Chef, the applicant has to “look into the front of house, management and accounting sides of the business as well”. These submissions are not based on any evidence before the Tribunal and the Tribunal does not accept them.
In his submissions, the applicant’s migration agent referred to the applicant’s education provider’s Course Overview for the Diploma of Leadership and Management and submitted that the learning outcomes are relevant to the tasks of a Chef. In particular, he referred to leadership skills and abilities, quality customer service, managing finances and workplace safety. He submitted that to carry out the ANZSCO tasks the applicant requires organisational skills, communication skills, delegation skills, attention to detail, business skills, consulting skills, leadership skills, planning skills, be a team player, decision making skills, creativity, coordination skills, reporting skills, continuous improvement, occupation, health and safety and a motivational management style.
In his submissions, the applicant’s migration agent referred to some of the subjects studied by the applicant in her Diploma of Leadership and Management and submitted that they are relevant to some of the ANZSCO tasks. He referred to some of the ANZSCO tasks and submitted his interpretation of what those tasks involved. He concluded that the Diploma of Leadership and Management enabled her to gain leadership, administrative, management and technical skills and knowledge relevant to the duties of a Chef and restaurant management.
In his submissions, the applicant’s migration agent concluded that the majority of the subjects undertaken by the applicant in her Diploma of Leadership and Management are more than merely complementary to the tasks of a Chef and are closely related to her nominated skilled occupation of Chef.
When considering these submissions, the Tribunal is required to objectively consider the relationship of the applicant's qualification or qualifications to the ANZSCO definition of the occupation rather than relying on the applicant's own (or her migration agent’s own) description of what the occupation entails, or the applicant's own (or her migration agent’s own) view of the proximity of the qualifications to the nominated occupation.[10] The Tribunal is also required to consider her qualification as a whole rather than only consider some of the subjects she undertook in her Diploma of Leadership and Management.
[10] Chawdhury v MIAC [2010] FMCA 275.
The wording of cl.485.222 does not permit the relationship between the applicant’s Diploma of Leadership and Management and her nominated skilled occupation of Chef (ANZSCO 351311) to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation or some part of it. [11]
[11] Constantino v MIBP [2013] FCA 1301 at [27].
The Tribunal has considered the case of Tobon v MIBP [2014] FCCA 2208 and notes that in this case the Federal Circuit Court held that in order to determine in any given case whether a qualification is closely related to an applicant’s nominated skilled occupation the decision maker must undertake a three step process. Firstly, identify the study or training for which the qualification was granted and the skills acquired as a result of such study or training (acquired skills). Secondly, identify the set of skills that are associated with carrying out the nominated skilled occupation (nominated skills). Thirdly, determine whether all or a substantial proportion of the acquired skills are nominated skills. If the decision maker determines this to be the case, the qualification is closely related to the nominated skilled occupation.
However, in Talha v MIBP [2015] FCAFC, the Full Court of the Federal Court expressed reservations as to whether the third step specified in Tobon v MIBP [2014] FCCA 2208 is a necessary part of the evaluative exercise in every case and cautioned against being too prescriptive and substituting a formula for the terms of the provision.
In considering whether each degree, diploma or trade qualification used by the applicant to satisfy the Australian study requirement is closely related to her nominated skilled occupation of Chef (ANZSCO 351311), the Tribunal has placed considerable weight on the ANZSCO descriptions. The Tribunal has had regard to the ANZSCO descriptions as a whole and has considered the Occupation of Chef at the lowest level as well as the higher groupings of the nominated skilled occupation. The Tribunal has considered the whole of the applicant’s studies and compared them with the whole of her nominated skilled occupation of Chef (ANZSCO 351311).
In considering the applicant’s Australian studies, the Tribunal has accepted that her Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and her Diploma of Hospitality are closely related to her nominated skilled occupation of Chef (ANZSCO 351311).
The Tribunal accepts that the applicant also completed a Diploma of Leadership and Management. Having considered the Academic Transcript for the Diploma of Leadership and Management, the Tribunal notes that she undertook sixteen subjects in that Diploma. The Tribunal accepts that four of those subjects being ‘Work Health and Safety’, ‘Financial Management’, ‘Customer Service’ and ‘Human Resources Management’ are closely related to tasks referred to in the ANZSCO hierarchy of tasks for the nominated skilled occupation of Chef such as ‘checking the cleanliness and operation of equipment and premises before production runs to ensure compliance with occupational health and safety regulations’, ‘planning menus, estimating food and labour costs, and ordering food supplies’, ‘monitoring quality of food at all stages of preparation and presentation’ and ‘may select and train staff’.
The Tribunal also accepts that some of the subjects studied by the applicant in her Diploma of Leadership and Management, being Workplace Effectiveness and Operational Plan, complement some of the tasks referred to in the ANZSCO hierarchy of tasks for the nominated skilled occupation of Chef. However, the Tribunal is required to consider her qualification as a whole rather than only consider some of the subjects she undertook in her Diploma of Leadership and Management. The Tribunal accepts that she acquired skills in leadership and management in her Diploma of Leadership and Management.
The Tribunal notes that, whilst skills such as leadership and management skills are more generic skills that are relevant in many occupations, it is not necessary for the Australian studies to confer skills which are unique to the nominated skilled occupation.[12] Clause 485.222 does not require that the skills obtained from Australian studies can only be used for the purpose of the nominated skilled occupation.
[12] Talha v MIAC [2015] FCAFC 115.
In considering the ANZSCO descriptions and tasks for the nominated skilled occupation of Chef (ANZSCO 351311), the Tribunal notes that descriptions and tasks at the Unit Group level, Minor Group level and Sub-Major Group level (see paragraphs 27 to 29 above) are particularly helpful to understand the nature of the nominated skilled occupation. However, the focus in all five levels in the ANZSCO hierarchy is on planning, preparing and cooking food. The Tribunal is therefore of the view that the nominated skills required for the nominated occupation of Chef are primarily cooking skills with planning skills and preparation skills supporting the cooking skills.
The ANZSCO tasks tend to indicate that the planning skills include planning menus, estimating the costs of food and labour and ordering food supplies. They tend to indicate that the preparation skills include compliance with occupational health and safety regulations, discussing food preparation, demonstrating techniques and monitoring the quality of dishes. They tend to indicate that the cooking skills not only require the ability to cook food using cooking equipment but also the knowledge and experience of food and cooking to inform and influence the planning skills and preparation skills. These cooking skills were acquired in the Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality.
One of the tasks at the ANZSCO Unit Group level is ‘may select and train staff’. This tends to indicate that this is not a task undertaken by all Chefs and that, in certain circumstances, some Chefs may be required to select and train staff. The Tribunal is of the view that this would require additional skills such as skills in selection techniques and training and supervising staff. These skills would have been acquired in the Human Resources Management subject undertaken by the applicant in the Diploma of Leadership and Management.
In considering whether all or a substantial proportion of the skills acquired by the applicant in her Diploma of Leadership and Management are nominated skills, the Tribunal is not satisfied that all or even a substantial proportion of the skills acquired by the applicant in her Diploma of Leadership and Management are nominated skills.
Therefore, the Tribunal is not satisfied that the applicant’s Diploma of Leadership and Management is closely related to her nominated skilled occupation of Chef (ANZSCO 351311). Accordingly, the Tribunal is not satisfied that each degree, diploma or trade qualification used by the applicant to satisfy the Australian study requirement is closely related to her nominated skilled occupation of Chef (ANZSCO 351311).
In view of the above, the Tribunal finds that the applicant does not satisfy the requirements of cl.485.222.
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.
L. Symons
Member