Singh (Migration)

[2020] AATA 6127

Singh (Migration) [2020] AATA 6127 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daljeet Singh

CASE NUMBER:  1802554

HOME AFFAIRS REFERENCE(S):          BCC2017/3577685

MEMBER:Kira Raif

DATE:31 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2020 at 2:34pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – graduate work stream – Australian study requirement – qualifications closely related to nominated occupation – qualification in business and nominated occupation of chef – advice from agent – qualification in hospitality management completed after application made cannot be considered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.222

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 15 January 2018 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 India, born in February 1992. He applied for the visa on 29 September 2017. 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 the qualifications used to satisfy the Australian study requirement were closely relate to the applicant’s nominated occupation. The applicant seeks review of the delegate’s decision.

3. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The applicant appeared before the Tribunal on 31 August 2020 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Visa Class VC contains Subclass 485. 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).

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 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.

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

7. The applicant provided to the Tribunal a copy of the primary decision record. The applicant stated on the application form that he completed the following study in Australia:

   02/15 – 01/16                  Cert III in Commercial Cookery

   02/16 – 07/16                  Cert IV in Commercial Cookery

   09/16 – 09/17                  Diploma of Business

8. In August 2020 the applicant provided to the Tribunal evidence of having completed a Diploma of Hospitality Management in May 2020. The applicant’s representative submits that the applicant is “a victim of innocent guidance” and now meets the requirement for the grant of the visa. The Tribunal acknowledges that the applicant has completed another qualification since making the visa application but the Tribunal is unable to consider the qualification completed after the application was made as the applicant did not rely on that qualification to meet the Australian study requirement.

9. The applicant had nominated the occupation of Chef (ANZSCO 351311) in his application.

10. The application for the visa was made in September 2017. The Tribunal finds that the only qualification the applicant completed in the 6 months before the application was made is the Diploma of Business. The Tribunal finds that the applicant relied on the Diploma of Business to meet the Australian study requirement. The Tribunal must be satisfied the Diploma of Business is closely related to the nominated occupation of a Chef.

11. In oral evidence, the applicant told the Tribunal that he was misguided by the agent who told him that the Diploma of Business would qualify him for the visa. The applicant said that he is a victim of misguidance and should be granted the visa on that basis. While it may be that the applicant was given poor advice by his previous agent, the Tribunal must still consider whether the applicant meets the statutory criteria and cannot recommend the grant of the visa on the basis of any ‘misguidance’.

12. The applicant told the Tribunal that the Diploma of Business would help him set up his own business in the future. The Tribunal is prepared to accept that the applicant may wish to operate his own business in the future. However, the Tribunal must assess the applicant against the nominated occupation – that of a Chef – and not an occupation that the applicant may choose to engage in some time 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. In the Tribunal’s view, if the applicant decides to run his own business in the future, his occupation may be that of a restaurant owner or manager and not that of a chef.

14. The applicant submits that the Diploma of Business and the Diploma of Hospitality Management are mostly the same and his agent told him the Diploma of Business would be sufficient. Even if the Tribunal were to accept the similarity between the two courses (and the applicant presented little evidence of such similarity), the relationship must exist between the qualification and the nominated occupation, not between the two courses. In the Tribunal’s view, any similarities between the Diploma of Business and the Diploma of Hospitality Management does not assist the applicant in establishing the close relationship of the Diploma of Business with the nominated occupation.

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, the occupation of a chef does not have business management responsibilities, particularly as the course completed by the applicant was a general course which does not appear to have been designed for the hospitality industry.

17. The representative submits that the applicant has now completed a Diploma of Hospitality Management and is now eligible for the grant of the visa. The representative requested the Tribunal to provide the applicant with the opportunity to reapply. It is not apparent to the Tribunal how it is proposed the Tribunal is able to do that. As noted above, the Tribunal is not able to have regard to a qualification completed after the application was made.

18. Having considered all the evidence before it, the Tribunal is not satisfied that the Diploma of Business 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

19. 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

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

    Kira Raif
    Senior Member