SINGH (Migration)

[2018] AATA 5919

SINGH (Migration) [2018] AATA 5919 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arminder SINGH

CASE NUMBER:  1719959

HOME AFFAIRS REFERENCE(S):                 BCC2017/2308639

MEMBER:Ian Berry

DATE:19 December 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 December 2018 at 12:09pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – Chef – Australian study requirement  – Advanced Diploma of Marketing – ‘closely related’ to nominated occupation – objective test – qualification generic in nature – merely complimentary – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F; Schedule 2, cls 485.221; 485.222

CASES
Chawdhury v MIAC (2011) FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC (2010) FMCA 577
MIBP v Dhillon (2014) 227 FCR 525
Shafiuzzaman v MIAC (2011) FMCA 874
Talha v MIBP [2015] FCAFC 115

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 16 August 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 applied for the visa on 29 June 2017. 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 (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.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the transcripts provided by the applicant do not show a relationship between the units completed and the applicant’s nominated occupation.

4. The applicant appeared before the Tribunal on 30 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from  the applicants employer Mr Binnings

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. There are  two requirements:

   ·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.

9. The applicant has completed the following qualifications:

Qualification	Institution	Start date	Finish date
Certificate IV in Commercial Cookery	Australian Institute of Technology and Management	11 August 2014	8 February 2016
Advanced Diploma of Marketing	New England Institute of Technology Pty Ltd	3 October 2016	30 April 2017

1. ‘Degree’, ‘diploma’, ‘trade qualification’, ‘registered course’, ‘completed’ and ‘academic year’ are all defined terms (see rr.1.03, 1.15F and 2.26AC(6), and cl.485.111). ‘Completed’, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award (r.1.15F(2)). For the purposes of this case, ‘2 academic years’ is specified by the Minister to mean at least a total of 92 weeks, being the duration of a course or courses registered under s.9 of the Education Services for Overseas Students Act 2000.

2. Cl.485.221 provides that the applicant must have satisfied the Australian study requirement in the period of six months immediately before the day the application was made.

3. Under r.1.1 5F(1) of the Regulations, a person is taken to have satisfied the 'Australian study requirement' if the person satisfies the Minister that the person has completed one or more degrees, diplomas or trade qualifications as awarded by an Australian Educational institution as a result of a course or courses:

   ·That are registered courses;

   ·that were completed in a total of at least 16 calendar months;

   ·that were completed as a result of a total of at least two academic years study;

   ·Which all instruction was conducted in English; and

   ·the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.

   The first issue – Satisfying cl.485.221: the Australian study requirement.

4. The Tribunal is to consider each of the courses completed by the applicant and determine whether the degree, diploma or trade qualification as required by r.1.15F is to be taken into account in establishing whether the Australian study requirement is met.  If the Tribunal is satisfied that the qualifications as listed in the above table are trade qualifications as defined by r.2.26AC(6), then they can be taken into account for the purpose of satisfying the ‘Australian study requirement’.

5. The Tribunal finds that the applicant has satisfied the Australian study requirement in the six months immediately preceding the date of the visa application (29 June 2017).

6. Therefore, the applicant meets cl.485.221.

   The second issue – is the qualification ‘closely related’ to the nominated occupation?

7. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be closely related to the applicant’s nominated ‘skilled occupation’.

8. 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

   ·that is applicable to the person in accordance with the specification of the occupation (rr.1.03 and 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/059.

9. In this case, the applicant nominated the occupation of ‘Chef’ (ANZSCO code 351311) which is a skilled occupation specified in the relevant instrument.

   Judicial Oversight of ‘closely related’

10. The term closely related is not defined in the Act or Regulations.  But the term has been considered in the decisions of MIBP - v - Dhillon (2014) 227 FCR 525 (Dhillon) and Talha - v - MIBP (2015) FCAFC 115 (Talha) as well as in Constantino - v - MIBP (2013) FCA 1301 (Constantino).

    ·These decisions have provided guidance to the Tribunal, in determining whether the qualification is closely related to the applicant’s nominated skilled occupation:

    ·The words closely related are not defined in the legislation. These words require and call attention to the connection between two things, and although the words closely related do not require an exact correspondence (Dhillon), the relationship must be more than merely complimentary (Constantino).

    ·In making the assessment of closely related, the nature of the nominated occupation must be determined by reference to the ‘Australian and New Zealand Standard Classification of Occupations’ (ANZSCO). ANZSCO needs to be read as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation (Talha). 

    ·Appropriately, objectivity is required when considering 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 or usefulness of the qualifications to the nominated occupation.  (Chawdhury - v - MIAC (2011) FMCA 275, Kabir - v - MIAC (2010) FMCA 577 and Shafiuzzaman - v - MIAC (2011) FMCA 874.

    ·It is ultimately a matter for the decision-maker (in this instance, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation (Talha) and, in carrying out this evaluation, it is critical for the whole of the Australian studies be compared with the whole of the nominated occupation. (Talha, Dhillon and Constantino).

11. The Tribunal Is satisfied that ‘Certificate IV in Commercial Cookery’ is closely related to the occupation of chef.

12. The applicant’s most recently completed qualification of ‘Advanced Diploma of Marketing’, which the Tribunal has found to be an eligible qualification. The Tribunal finds, based on the evidence before the Tribunal, it is satisfied the applicant completed that qualification within the six-month period before the day of the making of the visa application on 29 June 2017. To be determined, his the qualification of Advanced Diploma of Marketing closely related to the occupation of chef.

    Consideration of the applicant’s submissions

13. The applicant had the assistance of a migration representative who, on his behalf, provided the Tribunal with the 7 November 2018 submission.

14. The Tribunal accepts the applicant’s contention of the applicant having met cl.485.221. Understandably, the remaining submission is directed at cl.485.222.

15. Cl.485.222 states each degree, diploma or trade qualification, used to satisfy the Australian study requirement is closely related to the applicant’s nominated skilled occupation. ‘Closely related’ is not defined in either the Migration Act or the Regulations.

16. The relevant parts of the applicant’s submission are:

    a.The applicant demonstrates that he is ‘Advanced Diploma of Marketing’ is relevant and closely related to the nominated occupation of ‘Chef’.

    b.Comparing the applicant’s specific unit courses of ‘Advanced Diploma of Marketing’ to the tasks specified under ANZSCO inclusive of all the groupings, the Advanced Diploma of Marketing consisted of the following units:

    Plan and establish compliance management systems.
    Develop and implement diversity policy.
    Conduct a marketing audit.
    Manage the marketing process.
    Manage market research.
    Develop organisational marketing objectives.
    Develop a marketing plan.
    Develop, implement and maintain WHS Management Systems.

    c.The applicant submits a closeness between compliance management systems, develop and implement and maintain WHS management systems “explaining and enforcing hygiene regulations are both relevant to (ANZSCO) -  planning menus estimating food and labour costs, and ordering food supplies.

    d.The applicant submits that undertaking a ‘Position Performance Analysis’ is closely related to the nominated occupation of chef as there are ‘designated observation periods’ and it is during these periods, employees are asked to perform their jobs, adhering carefully to all established policies and procedures. They are carefully observed to ensure compliance. For example, chefs direct the cooks to follow all standard recipes, take scheduled rest breaks and meet the required quality standards. As a result, chefs analyse productivity through ‘position performance analysis’.

    e.WHS management systems – involves the assessment and mitigation of risks that may impact the health, safety or welfare of those in the workforce. Successful safety and health systems have the following in place:

    ·Managers committed to making the program work.

    ·Employees involved in the program.

    ·A system to identify and control hazards.

    ·Compliance with OSH a regulations.

    ·Training on safe work practices.

    ·Mutual respect, caring and open communication in a climate conducive to safety.

    ·Continuous improvement.

    As a result, compliance management systems are relevant to developing, implementing and maintaining WH systems within a restaurant environment.

    f.‘Develop and implement diversity policy is relevant to the ANZSCO task ‘may select and train staff, discussing food preparation issues with Managers, dietitians and kitchen and waiting staff. Head chefs/owners value diversity in restaurants and are determined to ensure that:

    ·They treat all individuals fairly, with dignity and respect.

    ·The opportunities they provide are open to all.

    ·They provide a safe, supportive and welcoming environment for employees and visitors.

    The applicant further submits “it is important to develop and implement a diversity policy while selecting, training staff and communicating with peer staff (Manager, Dietitians, Kitchen and wait staff). Therefore Chefs are trained to implement such policies that specify:

    ·That there should be no discrimination on account of race, colour, religion, disability, nationality, ethnic origin, sex, age or marital status.

    ·That the company will appoint, train, develop and promote on the basis of merit and ability.

    ·That all employees have personal responsibility for the practical application Equal Opportunities Policy.

    ·That special responsibility for the practical application of the companies Equal Opportunities Policy falls upon directors and managers involved in the recruitment, selection, promotion and training of employees.

    ·That disciplinary action will be taken against any employee who was found to have committed an act of unlawful discrimination. Serious breaches of this Policy will be treated as gross misconduct as well sexual or racial harassment.

    g.The applicant then refers to the units of the Advanced Diploma of Marketing ‘manage marketing process; market research; develop organisational marketing objective and develop a marketing plan. He submits that they all relate to ANZSCO tasks ‘planning menus, and demonstrating techniques and advising on cooking procedures.

    h.It is explained by the applicant that a marketing plan can consist of menu development and he explains a marketing plan is to use a chefs creativity in developing a menu based on the theme and type of cuisine of a restaurant. For example, if the cuisine is Mexican, then spicy Mexican dishes are a good fit. The menu items also need to appeal to the restaurants target market (promotions). For example seniors prefer smaller portions. Many are on a fixed retirement income, so lower prices are appreciated. An early bird menu is one option to entice seniors to return. Working with the chef to establish an action plan of determining how many menu items are needed in each category – appetisers, soups, salads, entrées and desserts. Agreeing to a timetable when the menu will be finalised. Assigning dates for tastings of each dish thereby demonstrating techniques and advising on cooking procedures.

    i.Cost and margins: an organisational objective for the chef is to establish the cost of each menu item and suggest retail prices for the menu. Food costs run about one third the retail price. Pricing the dish is important, but action plans for controlling food costs should include portion control and maintaining a low degree of food spoilage. Other promotional plans include selecting vendors with the lowest price and consistent quality, and reduce employee pilfering of expensive meat, shellfish and exotic ingredients.

17. A summary of chef in ANZSCO at the unit group 3513 hierarchy level states the following:

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

    ·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).

    ·Tasks include:

    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 occupation of chef also has specialisations involved in planning and organising the preparation of cooking of food in a dining or catering establishment which is a skill level II. ANZSCO details some of those specialties.

18. Minor group 351 food trades workers does not add any further light which would assist the applicant in linking, in a closely related way, the applicant’s Advanced Diploma of Marketing with the occupation of chef. The tasks include:

    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 and using ovens, hotplates, grills and similar equipment.
    Portioning food, placing it in dishes, and adding gravies, sauces and garnishes.

19. The above are a more generalised set of tasks some of which directly refer to the occupation of chef. However it is not so broad as to closely relate the unit courses, as outlined by the applicant, with his Advanced Diploma of Marketing. At best, the Advanced Diploma of Marketing is complimentary but not closely related to the occupation of chef.

20. As an observation, the ‘marketing’ qualification is generic in nature; it applies to almost all qualifications of a more specific kind. For instance, marketing would assist professions from ‘Architects’ to ‘Quantity Surveyors’ as would a diploma of leadership and management and similar styled diplomas.

21. As the applicant’s qualification is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

22. 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

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

Ian Berry
Member