Singh (Migration)

[2019] AATA 1552

Singh (Migration) [2019] AATA 1552 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lakhwinder Singh

CASE NUMBER:  1602052

HOME AFFAIRS REFERENCE(S):          BCC2015/2087743

MEMBER:Warren Stooke AM

DATE:8 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 08 January 2019 at 12:13pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cook – relevant study units in commercial cookery – required experience – necessary qualification in Australia – limited cookery experience – suitable skill assessment – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 187.224, 187.234

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 21 July 2015. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream to work in the nominated position of Cook (ANZSCO – 351411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.224 of Schedule 2 to the Regulations because the applicant did not possess the required course completions with the relevant units on commercial cookery or related topics or the required experience.

6. The applicant appeared before the Tribunal on 20 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

7. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

8. The applicant confirmed to the Tribunal that he had provided to the Tribunal a copy of the delegate’s decision with his application and that he understood the basis of the delegate’s decision.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has the relevant qualifications and experience to satisfy ANZSCO Code – 351411 for the occupation of Cook.

11. The applicant is a 28 year old from the Punjab in India and currently lives in Springvale with his sister and her husband.

12. The applicant stated that he had no other visa application pending at the moment.

13. The applicant gave evidence that he is currently working in an automotive workshop in Springvale and is paid $19.23 per hour and does not currently work for the standard business sponsor, who was identified in the nomination approval of 9 March 2016. [Tribunal Folio – 10]

14. The applicant stated that the nominator, Mr Paul Asif, was prepared to employ the nominee once he obtained his 187 Visa.

15. The applicant provided evidence that he had worked as a cook in the business of Mr Asif for one year and had previously had 6 months experience in another restaurant in, where he worked on a ‘volunteer’ basis.

16. As found by the delegate and based on the instrument (IMMI 15/083) in relation to 187.234(a), the applicant is not exempt from the skill requirement as a person under Class 2 since his earnings in the relevant assessment period were $37,000.00 p.a., which is less than the current Australian Tax Office top individual income tax rate; and the applicant is not a person under Class 3 as he does not hold a Subclass 444 or 461 visa.

17. On this basis, the Tribunal finds that that applicant does not meet 187.234(a).

    Skills and qualifications

18. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·    if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

19. For visa applications made on or after 18 March 2018, applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation.

20. Additionally, for this criterion, the relevant classes of exempt persons have been specified in IMMI (15/083) and the occupations and relevant assessing authorities have been specified in IMMI (12/096).

21. On this basis, the Tribunal finds that the applicant does not meet 187.234(a).

22. The occupation of Cook (ANZSCO 351411) is an occupation specified by the Minister in an instrument in writing (IMMI 12/096) in relation to 187.234(b) and this position requires an AQF Certificate III including at least two years of on-the job training, or AQF Certificate IV.

23. The Tribunal notes from the decision of the delegate that the applicant holds the following qualifications:

    ·Certificate III in Automotive Mechanical Technology, Cambridge International College;

    ·Certificate III in Frontline Management, Cambridge International College;

    ·Certificate IV in Automotive Technology, Australian Industrial Systems Institute;

    ·Diploma of Management, Cambridge International College.

24. At the hearing, the applicant produced the transcript for the qualification of a Diploma of Hospitality, which listed a series of subject areas, including prior learning credits, leading to the award of the qualification in Hospitality and it was noted by the Tribunal that none of the subjects covered in the course related to the skills identified for ANZSCO – 351411 Cook. As such, only one subject, concerning Hygiene had relevance to the occupation.

25. The Tribunal has considered the relevant criteria pertaining to ANZSCO – 351411, as follows:

    “UNIT GROUP 3514 COOKS

    
    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
    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 Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    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:

    • examining foodstuffs to ensure quality
    • regulating temperatures of ovens, grills and other cooking equipment
    • preparing and cooking food
    • seasoning food during cooking
    • portioning food, placing it on plates, and adding gravies, sauces and garnishes
    • storing food in temperature controlled facilities
    • preparing food to meet special dietary requirements
    • may plan menus and estimate food requirements
    • may train other kitchen staff and apprentices

    
    351411 COOK
    
    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3

26. The evidence provided by the applicant, together with the documents submitted to the Department concerning prior learning and qualifications, demonstrates that the applicant has not obtained the necessary qualification for the nominated occupation of cook. The units/subjects shown in each of the qualifications do not pertain to cookery or relevant topics. The qualifications obtained by the applicant are more relevant to automotive technology or diploma level management. The Diploma of Hospitality, as discussed with the applicant at the hearing, does not include any relevant units on commercial cookery or related topics, with the exception of the unit pertaining to Hygiene.

27. The Tribunal has considered all the available information provided by the applicant and the evidence obtained at hearing and finds that the applicant has not obtained the "necessary" qualification in Australia to meet ANZSCO – 351411 nor has the applicant acquired the necessary experience, with only 12 months in the vocation. In this regard, the standard business sponsor provided a reference that outlined the duties performed by the applicant, but these duties have been only performed for a period of 12 months on the basis of the evidence given by the applicant. [Tribunal Folio – 54].

28. The applicant has not provided a suitable skill assessment with his application. In this regard, the delegate noted in the decision that the applicant was invited on 21 December 2015 to provide evidence of having had his skills assessed as suitable for the occupation by an assessing authority prior to the lodgment of his application. However, no evidence has been provided. As such, the delegate correctly found, in the Tribunal’s view, that the applicant, did not satisfied 187.234(b).

29. The Tribunal finds that as 187.234(b) is applicable to his situation, the applicant does not have the option of satisfying 187.234(c).

30. As the applicant does not meet 187.234 (a), (b) or (c), the applicant does not meet 187.234.

31. Therefore, cl.187.234 is not met.

32. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Warren Stooke AM
    Member