Setiya v MICMSMA
[2021] FCCA 544
•19 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Setiya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 544
File number(s): BRG 201 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 19 March 2021 Catchwords: MIGRATION – Judicial review – Temporary Graduate (Graduate Work) (Class VC) (Subclass 485) visa – whether applicant satisfied Australian study requirement – whether course of study were closely related to nominated skilled occupation – no jurisdictional error – dismissed. Legislation: Migration Regulations 1994 (Cth), regs. 1.15F, 1.15F(1)(a), 1.15F(1)(b), 1.15F(1)(c), 1.15I, Schedule 2 cll., 485.2, 485.21, 485.22, 485.211, 485.221, 485.222
Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 cll.6, 7
Cases cited: Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157
Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100
Number of paragraphs: 50 Date of last submission/s: 17 September 2020 Date of hearing: 17 September 2020 Place: Brisbane Counsel for the First Applicant: Mr See Solicitor for the First Applicant: Arshad and Chand Lawyers Solicitor for the First Respondent: Sparke Helmore The Second Respondent entered a submitting appearance. ORDERS
BRG 201 of 2020 BETWEEN: NISHANT SETIYA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
19 MARCH 2021
THE COURT ORDERS THAT:
1.The amended application filed on 23 June, 2020 be dismissed.
2.The applicant pay the first respondent’s costs of and incidental to the application in a fixed sum.
REASONS FOR JUDGMENT
JUDGE JARRETT:
The applicant seeks judicial review of a decision of the second respondent made on 2 March, 2020 which affirmed a decision of a delegate of the first respondent not to grant him a Temporary Graduate (Graduate Work) (Class VC) (Subclass 485) visa.
The second respondent determined that the applicant did not satisfy the criteria set out within cl 485.222 of Schedule 2 to the Migration Regulations 1994 (Cth) for the grant of the visa. The applicant contends that decision is affected by jurisdictional error because:
(a)by adopting a restricted approach to the interpretation of cl 485.222 and failing to take into account relevant considerations, the second respondent committed jurisdictional error when it determined that the applicant’s studies were not closely related to the nominated skill occupation of chef;
(b)that in reaching its decision, the second respondent had erroneously applied Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 in a manner inconsistent with the decision in Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157;
(c)that in adopting the approach that it did, the second respondent failed to correctly assess the previous business qualifications undertaken by the applicant; and
(d)that in undertaking its task, the second respondent had misapplied the law, reached incorrect conclusions in relation to the facta probantia and as a result erroneously determined the factum probandum.
The first respondent opposes the application and the second respondent enters a submitting appearance.
For the reasons that follow, the application must be dismissed.
BACKGROUND
On 25 August, 2017 the applicant, a citizen of India, applied for the visa the subject of these proceedings on the basis of his employment as a “Chef”. The conditions for the grant of that visa are set out within Schedule 2 of the Migration Regulations.
Clause 485.2 of the Regulations makes clear that if the applicant applies for a subclass 485 visa in the Graduate Work stream, the criteria in subdivision 485.21 and 485.22 are the primary criteria for the grant of the visa. The criteria in subdivision 485.211 are not relevant to the present application.
Criteria 485.221 and 485.222, which needed to be satisfied at the time of the decision on the application, provided, at the relevant time:
485.221
The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made.
485.222
Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation.
Those criteria required the applicant to demonstrate:
(a)his study achievements including his degrees, diploma and trade qualifications;
(b)whether these satisfy the Australian study requirement; and
(c)that they closely related to the applicant’s nominated skill occupation.
In his application, the applicant indicated that he had completed the following eligible qualifications:
(a)a Certificate IV in Business;
(b)a Diploma of Business;
(c)an Advanced Diploma of Business; and
(d)a Certificate IV in Commercial Cookery.
The applicant had also enrolled in and completed a Diploma of Hospitality Management. It was completed after the applicant made his visa application and after the delegate’s decision on his application was made, but before the second respondent’s decision on the application. However, as the second respondent recorded in its reasons at [10], “It is noted that the applicant had commenced the Diploma of Hospitality Management. PRISMS records the applicant completed this registered course on 11 May 2018, subsequent to the making of the visa application. He has neither made a submission in relation to this registered course nor relied on it.”
The Australian study requirement is a phrase that is defined in reg. 1.15F as follows:
1.15F Australian study requirement
(1) 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:
(a) that are registered courses; and
(b) that were completed in a total of at least 16 calendar months; and
(c) that were completed as a result of a total of at least 2 academic years study; and
(d) for which all instruction was conducted in English; and
(e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
On 11 October, 2017 a delegate of the first respondent refused to grant the visa on the basis that the applicant did not meet reg. 1.15F(1)(c) or cl. 485.222 of the Regulations. The delegate found that the applicant’s Diploma of Business, Certificate IV in Business and Advanced Diploma of Business courses were not “closely related” to his nominated skilled occupation of “Chef” and, whilst the applicant’s Certificate IV in Commercial Cookery course was “closely related” to his nominated skilled occupation, he did not complete the 92 weeks of study required by r 1.15F(1)(c).
On 31 October, 2017 the applicant applied to the second respondent for review of the delegate’s decision. On 18 June, 2018 the second respondent (differently constituted) affirmed the delegate’s decision not to grant the applicant the visa. However, on 10 December, 2018 the Federal Circuit Court remitted the matter to the second respondent by consent on the basis that the second respondent erred by not taking into account certain relevant information contained in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) Code. The relevant information was the other groupings relevant to the nominated skilled occupation of Chef, being occupation code “351311 Chef,” “Sub-Major Group 35 Food Trades Workers” and “Minor Group 351 Food Trades Workers.”
On 9 July, 2019 the second respondent invited the applicant to attend a hearing scheduled for 26 July, 2019. On 26 July, 2019 the applicant appeared before the second respondent to give evidence and present arguments, assisted by a representative.
After the hearing, on 26 August, 2019 the applicant provided a written submission and supporting material to the second respondent.
On 2 March, 2020 the second respondent affirmed the delegate’s decision not to grant the applicant the visa. The second respondent considered that the issues before it were:
(a)whether the applicant’s registered courses were closely related to the applicant’s nominated occupation of chef ANZSCO 351311; and
(b)whether the applicant satisfied the Australian study requirement.
After recording the evidence about the applicant’s study and the conclusions reached by the second respondent about whether that study was closely related to his nominated occupation, after considering the ANZSCO Code concerning his nominated application and after considering the applicant’s further submissions, the second respondent found that:
(a)in respect of the Diploma of Business, management recruitment or participation in that recruitment was closely related to the nominated position of Chef;
(b)the Certificate IV in Business was more in line with the applicant’s aspirational future career to work as a Chef and manage a small business. It accepted that a Chef would be responsible for the implementation and monitoring of the workplace health and safety policies, procedures and programs insofar as it related to the kitchen and kitchen staff; and
(c)the second respondent did not accept that any of the units in the Advanced Diploma of Business were closely related to the nominated occupation of Chef.
The second respondent accepted that the Certificate IV in Commercial Cookery was closely related to the applicant’s nominated occupation, however, found that the business courses had “little connection” with the position, other than risk management and selecting staff. The second respondent found that the applicant’s suggestion that a significant number of the business units he completed in his business courses were closely related to the nominated occupation of Chef “detract[ed]” from the Chef’s main position and purpose.
The second respondent found that the only course that was closely related to the nominated occupation was the Certificate IV in Commercial Cookery. Because the second respondent found that the business courses were not closely related to the applicant’s nominated occupation, the second respondent found that the applicant did not meet cl 485.222 of the Regulations. Further, because the second respondent had found that the business courses were not closely related to the nominated occupation, they could not be considered in the consideration of the Australian study requirement as required by cl. 485.221 of the Regulations.
Accordingly, the Certificate IV in Commercial Cookery was the only course that could be used to satisfy the Australian study requirement. It had a course duration of 70 weeks. The second respondent found that the applicant had therefore not complied with reg 1.15F(1)(c) which required the applicant to have completed the qualifications that contributed to his Australian study requirement as a result of a total of at least two academic years or 92 weeks.
It followed, as the second respondent found, that the applicant did not satisfy the Australian study requirement in cl 485.221 and it therefore affirmed the delegate’s decision.
GROUNDS OF REVIEW
The first ground of the amended application is in the following terms (faithfully reproduced):
1. The second respondent fell into jurisdictional error when it failed to take into account relevant considerations when determining that the registered business courses undertaken by the applicant did not satisfy criterion cl 485.222 of Schedule 2 to the Migration Regulations 1994 required to be met for the grant of a subclass 485 visa, in accordance with Section 65 of the Migration Act 1958.
Particulars
(a) The second respondent confined its approach to the weighing up of the applicant’s Australian studies against the tasks of a Chef only, as set out in Unit Group 3513 of the Australian and New Zealand Standard Classification of Occupations (ANZSCO).
(b) The second respondent made no reference, or failed to consider other potentially relevant hierarchical tasks as described elsewhere within the ANZSCO, identified within higher and associated groupings within Major Group 1, Unit Group 1411 – Cafe and Restaurant Managers.
By this ground and his submissions in support of it, the applicant argues that the second respondent failed to take into account relevant “contextual considerations”. Specifically, it is argued that the second respondent confined its approach to the weighing up of the applicant’s Australian studies against the tasks of a chef only, as set out in Unit Group 3513 of the ANZSCO Code. The second respondent made no reference, or failed to consider, it is said, other potentially relevant hierarchical tasks as described elsewhere within the ANZSCO Code in higher and associated groupings within Major Group 1, Unit Group 1411 – Café and Restaurant Managers. For completeness I set out the classification that the applicant argued ought to have been considered:
UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS
CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
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)
In New Zealand:
NZ Register 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:
• planning menus in consultation with Chefs
• planning and organising special functions
• arranging the purchasing and pricing of goods according to budget
• maintaining records of stock levels and financial transactions
• ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
• conferring with customers to assess their satisfaction with meals and service
• selecting, training and supervising waiting and kitchen staff
• may take reservations, greet guests and assist in taking orders
Occupation:
141111 Cafe or Restaurant Manager
141111 CAFE OR RESTAURANT MANAGER
Alternative Titles:
Food and Beverage Manager
Restaurateur
Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.
Skill Level: 2
Specialisations:
Bistro Manager
Canteen Manager
Caterer
Internet Cafe Manager
Mess Supervisor
Steward (Navy)
However, this argument cannot be accepted. The second respondent did not confine itself to a consideration of the tasks of a chef in Unit Group 3515. It also considered the relevant tasks set out in Major Group 3 (Technicians and Trade Workers), Sub-Major Group 35 (Food Trades Workers) and Minor Group 351 (Food Trades Workers). At [26]-[28] of its reasons the second respondent recorded:
26. Considering the ANZSCO Groups, Major Group 3 (Technicians and Trades Workers), the only task closely related to the nominated occupation is preparing and cooking food. Some-Major Group 35 (Food Trades Workers) has six tasks which are closely related to the nominated occupation (the Tribunal considers the preparing meat for sale suggests uncooked meat and is not relevant):
• 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
• … Baking bread, cakes and pastries
• Preparing food and cooking using ovens, hotplates, grills and similar equipment
• Portioning food, placing it in dishes, adding gravies, sources and garnishes
27. Minor Group 351 (Food Trades Workers) comprises of tasks which all relate to the nominated position and which are identical to the tasks in Sub-Major Group 35.
28. Unit Group 3513 (Chefs) includes the following tasks:
• 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
Whilst it is true that the second respondent did not consider “Unit Group 1411 Cafe and Restaurant Managers” it was, in my view, correct not to do so. In Dhillon the Full Court of the Federal Court of Australia identified that the task of the second respondent in an application such as the present was to make a comparison between the nominated skilled occupation of the visa applicant and the courses of study relied upon to establish satisfaction of the Australian study requirement. At [19] of its reasons, the Full Court set out the approach taken by the Tribunal in that case to the comparison exercise. I will not set out those passages in full, but it is apparent that the Full Court approved of the way in which the Tribunal went about its task.
The way in which the ANZCO Code is organised was explained in Talha v Minister for Immigration and Border Protection (2015) 235 FCR 100 at [17] – [28]. “Occupations” are the most particular and detailed level of the classification system. “Occupations” are then grouped together to form “unit groups”, which in turn are grouped into “minor groups”. Minor groups are then aggregated to form “sub-major groups”, which in turn are aggregated at the highest level to form “major groups”. The classification system might be seen as a triangle with the broadest groupings - major groups as the base and the particular occupations as the apex.
The applicant’s nominated occupation was that of chef (ANZSCO Code: 351311). He did not nominate the occupation of café and restaurant manager. The second respondent considered the nominated skilled occupation of chef and all of relevance that fell within the broader groups of which chef was the apex. The second respondent was not obliged to consider a range of other groupings relevant to the occupation of café and restaurant manager.
Clause 485.222 of the Schedule 2 of the Regulations required the applicant’s studies to be closely related to the nominated skilled occupation. The second respondent was at pains to assess the applicant’s qualifications and his visa application more generally against that nominated skilled occupation. It did so in an entirely orthodox way and consistently with what fell from the Full Court in Dhillon at [20] and Talha at [41] – [48]. Contrary to what the applicant’s counsel submitted, the second respondent was obliged to inform itself about the nature of the skilled occupation of chef by considering the ANZSCO Code and comparing that with the course content submitted by the applicant for the units undertaken by him in his courses. Far from the second respondent engaging in impermissibly deconstructing “the specific skills and duties of a chef and align them to the units undertaken by the applicant”, the second respondent’s reasons show that worked to understand the course content of the study undertaken by the applicant and the duties and skills required of the applicant in his nominated occupation and then compare the two. There is nothing remarkable – or incorrect – about the second respondent’s approach.
I accept the first respondent’s submission that whether the applicant’s studies were closely related to tasks set out under other Unit Groups and related ANZSCO hierarchies was plainly not relevant and could not assist the applicant in satisfying the criteria for the grant of the visa. The obligation on the second respondent was to consider all tasks potentially relevant to the applicant’s nominated skilled occupation as described elsewhere in the ANZSCO Code relating to Chefs, which included all potentially relevant tasks applicable to the occupation of Chefs. In doing so the second respondent was required to consider the relevant information in the higher (or lower depending upon the way the triangle is sitting) groupings of which the nominated skilled occupation forms part. However, nothing to which I was taken in either Dhillon or Tahla authorised the second respondent to engage in a wide ranging inquiry across all of the occupations specified in the ANZSCO Code so as to identify skills that might have some connection with his skilled occupation and the courses of study relied upon by him to satisfy the visa requirements.
This ground of review reveals no jurisdictional error.
The second ground of the amended application is in the following terms (faithfully reproduced):
2. The second respondent fell into jurisdictional error when it misconceived the way in which the skilled occupation specified by the Minister in an instrument in writing, was to be relied upon when determining whether the registered business courses undertaken by the applicant did not satisfy criterion cl 485.222 of Schedule 2 to the Migration Regulations 1994.
Particulars
(a) Within its decision, the second respondent has failed to identify the relevant instrument in writing, relied upon for the purposes of Regulation 1.15I and cl485.222 of Schedule 2 of the Migration Regulations 1994.
(b) The marginal note 2 to Section 8 of the Migration (LIN 19/051: Specification of Occupations and Assessing Authorities Instrument 2019 makes clear that the ANZSCO code for Item 206 Chef, has been included for information only.
(c) In undertaking its task, the second respondent confined any further analysis of the skills required of the nominated skill occupation to that within the Minor Group 351 (Food Trades Workers) and failed to have regard or give consideration to the overlapping and equally applicable skills identified at Minor Group 141 (Accommodation and Hospitality Managers) and Unit Group 1411 -Cafe and Restaurant Managers.
Clause 485.222 of Schedule 2 of the Regulations required the applicant’s studies to be closely related to the nominated skilled occupation. Skilled occupation is defined in reg. 1.15I of the Regulations as follows:
1.15I Skilled occupation
(1) A skilled occupation, in relation to a person, means an occupation of a kind:
(a) that is specified by the Minister in an instrument in writing to be a skilled occupation; and
(b) if a number of points are specified in the instrument as being available—for which the number of points are available; and
(c) that is applicable to the person in accordance with the specification of the occupation.
(2) Without limiting subregulation (1), the Minister may specify in the instrument any matter in relation to an occupation, or to a class of persons to which the instrument relates, including:
(a) that an occupation is a skilled occupation for a class of persons;
(b) that an occupation is a skilled occupation for a person who is nominated by a State or Territory government agency.
At the time of the applicant’s visa application, Migration (IMMI 17/072: Specification of Occupations and Assessing Authorities) Instrument 2017 was in force. Given the reliance placed by the applicant upon this instrument. It is necessary to set out the relevant parts of the instrument:
6 Specification of occupations and assessing authorities
Scope of this section
(1)This section applies to a class of persons mentioned in column 1 of an item of the following table:
Classes of persons Item Column 1
Classes of persons
Column 2
Applicable lists (see subsection (2))
2 persons who apply on or after 1 July 2017 for a Subclass 485 (Temporary Graduate) visa Medium and Long‑term Strategic Skills List 7 Medium and Long‑term Strategic Skills List
(1)The following table is the Medium and Long‑term Strategic Skills List.
Medium and Long‑term Strategic Skills List Item Column 1
Occupation
Column 2
ANZSCO code
Column 3
Assessing authority
Column 4
Specified for only certain classes (see subsection (2))
175 chef 351311 TRA Note 1: Column 2 is included for information only.
Note 2: For the meaning of the expressions in column 3, see section 9.
The applicant argues that the second respondent did not refer to IMMI 17/072 or those instruments that have replaced it from time to time. He argues that the second respondent has failed to comprehend the purpose of IMMI 17/072 which, he argues, is to identify the appropriate assessing authority for occupations in the case where individuals are wishing to gain employment in Australia and have their skills assessed. He points out that whilst at cl.7 of IMMI 17/072 in the Medium and Long-term Strategic Skills List item 175 identifies the occupation of Chef with a corresponding ANZSCO code of 351311, note 1 to that section provides that Column 2 (the reference to the ANZSCO Code) is included for “information only”. The applicant argues that the note means that the ANZSCO reference is not designed to serve as some prescriptive means by which the employment of a person pursuing a nominated occupation is to be defined. It is used to identify a particular occupation and assessor for the purposes of providing overseas workers with medium and long term employment opportunities.
Accordingly, the applicant argues that the second respondent impermissibly confined its analysis of the skills required of the nominated skill occupation to that within the Minor Group 351 (Food Trades Workers) and failed to have regard or give consideration to the overlapping and “equally applicable skills” identified at Minor Group 141 (Accommodation and Hospitality Managers) and Unit Group 1411 - Cafe and Restaurant Managers.
However, I cannot accept this argument because the second respondent did none of those things. As I have set out above, the second respondent took account of the matters set out in the ANZSCO Code in the hierarchy of groups of which chef was an occupation. The failure by the second respondent to refer to IMMI 17/072 was of no consequence. I was taken to nothing said by the applicant in evidence to the second respondent or in his submissions that went beyond the relevant description in the ANZSCO Code.
The applicant argued that the ANZSCO Code was developed for statistical purposes and was not a means of defining the work that a proposed subclass 485 visa holder will be confined to undertake, within the context of their nominated position in Australia. However, whether that is true or not is beside the point. But the reference to the ANZSCO Code in IMMI 17/072 must have some function, even if the reference is for “information only”. The “information” the reference is intended to convey must be the specifications for that occupation in the ANZSCO Code.
The applicant’s point, although in a slightly different context and by reference to a differently worded Ministerial Instrument was the subject of consideration by the Full Court in Talha. The argument was rejected at [60].
The applicant’s submissions and evidence in support of his application, including his TRA Assessment, explicitly referred to his nominated skilled occupation as being that of “Chef” (ANZSCO Code: 351311). I accept the first respondent’s submission that any suggestion that his application ought to have been assessed against the skilled occupation of café and restaurant manager is difficult to reconcile with the conduct of his application.
The ground does not reveal jurisdictional error.
The third ground of the amended application is in the following terms (faithfully reproduced):
3. The second respondent fell into jurisdictional error when it determined that the applicant did not satisfy the criterion at cl 485.221 of Schedule 2 to the Migration Regulations 1994.
(a) The second respondent failed to properly assess the business studies completed by the applicant within the context of the work and career of a Chef in the accommodation and hospitality industry.
(b) The failure to correctly assess all relevant business qualifications gave rise to the conclusion that the Australian study requirements for the purposes of Regulation 1.15F(l)(a) and (b) had not been satisfied six months prior to the application being made.
The applicant argues that the second respondent has misinterpreted the definition of Australian study requirement. The particulars to ground three allege that the applicant’s registered business courses were closely related to the work and career of a chef in the accommodation and hospitality industry, such that the second respondent’s finding that r 1.15F(1)(a) and (b) was not satisfied was incorrect.
The applicant’s argument recognises that it was only degrees, diplomas or trade qualifications that were closely related to the applicant’s nominated skilled occupation that could be used to satisfy the Australian study requirement. The second respondent considered the content of the applicant’s qualifications against the applicant’s nominated skilled occupation and concluded that whilst some parts of his business related qualifications might be related to his occupation as a chef, there was not a sufficient connect between the qualifications and the applicant’s nominated occupation. The second respondent said:
30. Considering the registered business courses, the applicant through his submission refers to each of the courses are closely related to the tasks of a manager19. But, the business registered courses have little connection with the position of Chef other than in risk management and may be having involvement in selecting staff though it would be limited. Regardless of the size of the café or restaurant it is difficult to consider a manager having the responsibility of hiring staff or an owner of a café or restaurant would delegate that position to the Chef but it is reasonable for the Chef to be invited to participate in the recruitment process.
31. The applicant in his earliest submission refers the business units as referring to the occupation of a Manager, and the Commercial Cookery course referring to the occupation of Chef.
32. There needs to be a connection between the business units and those relating to the occupation of Chef. The business units are generic in that they need to cover a greater part of the business world, whereas the elements of the position of Chef are more specific and mostly involved in the management of the kitchen and its people.
33. To suggest that a significant number of the business units are closely related to the nominated position of chef, as the applicant suggests, would detract from the chef’s main position of being a Chef, the purpose for which he was employed.
34. The Tribunal finds and is satisfied that the only registered course which is closely related to the nominated occupation is the Certificate IV in Commercial Cookery.
The second respondent’s reasoning is clear and the finding it made was clearly open to it in the circumstances.
At paragraph [36] of the second respondent’s decision it found that the applicant’s registered business qualifications (other than Certificate IV in Commercial Cookery) were not closely related to the nominated position of Chef. As the first respondent submits, in circumstances where the applicant’s registered business courses could not have been considered in relation to any other skilled occupation other than “Chef” (ANZSCO Code: 351311), and in circumstances where the ANZSCO Code does not contain a skilled occupation of “Chef” in the accommodation and hospitality industry (and so therefore the business course could be of no relevance), this ground has no merit.
Finally, in respect of this ground, to the extent that the applicant’s submissions suggest that the second respondent ought to have considered the hierarchy contained in the Australian Standard Classification of Occupations (ASCO) Second Edition, 1997, that suggestion cannot be accepted. As was discussed in Talha at [17] that instrument was replaced by the ANZSCO Code. The date of replacement was 1 July, 2010.
This ground reveals no jurisdictional error.
The fourth ground of the amended application is in the following terms (faithfully reproduced):
4. The second respondent fell into jurisdictional error when reaching its decision not to grant the applicant a Skilled (Professional) Class VC (Subclass 485) visa for the purposes of Section 65 of the Migration Act.
(a) The facta probantia relied upon by the second respondent in reaching the factum probandum gave rise to an error of law:-
(i) The second respondent erroneously determined that the applicant had not satisfied the relevant study requirements for the purposes of cl 485.221 of the Migration Regulations 1994.
(ii) The second respondent erroneously determined that the applicant’s relevant business qualifications used to satisfy the study requirements were closed related to his nominated skill occupation for the purposes of cl 485.222.
(iii) The second respondent erroneously determined that the primary criteria for the grant of the issuing of a subclass 485 visa in accordance “with Section 65 of the Migration Act 1958, had not been satisfied.
This ground does not add to the previous grounds, but seeks to reiterate albeit in a different form, the arguments raised in the first three grounds. It does not reveal jurisdictional error. As the first respondent submits, the second respondent’s finding that the applicant did not meet the criteria for the grant of the visa was plainly open to it on the evidence.
CONCLUSION
The application must be dismissed and the applicant must pay the first respondent’s costs, in the way sought by the first respondent in its written submissions – “in a fixed amount”.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 19 March, 2021. Associate:
Dated: 19 March 2021
3
2
0