Singh (Migration)

Singh (Migration) [2018] AATA 3899 (14 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep Singh
CASE NUMBER:  1708968
DIBP REFERENCE(S):  BCC2017/652020
MEMBER:Susan Trotter
DATE:14 August 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 14 August 2018 at 5:27pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – relation of studies to nominated occupation – diploma and trade qualifications – study undertaken in time period – some skills from course are related – nature of occupation as a whole – recent qualification not closely related – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15F, 2.26AC, Schedule 2 cls 485.221, 485.222
CASES
Chawdhury v MIAC [2010] FMCA 275
Constantino v MIBP [2013] FCA 1301
Kabir v MIAC [2010] FMCA 577
Kim (Migration) [2018] AATA 126
MIBP v Dhillon (2014) 227 FCR 525
Pasula v Minister for Immigration [2010] FMCA 219
Shafiuzzaman v MIAC [2011] FMCA 874
Talha v MIBP [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 then Minister for Immigration and Border Protection[1] (the Minister) on 7 April 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
[1] Now the Minster for Home Affairs
The applicant is a 24 year old citizen of India. He first arrived in Australia in January 2014 as the holder of a student visa. He has undertaken various studies in Australia. He applied for the temporary visa the subject of this application, known as a Subclass 485 visa, on 17 February 2017.
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).
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the Diploma of Leadership and Management qualification completed by the applicant is closely related to the applicant’s nominated skilled occupation of Chef (ANZSCO Code 351311) as required.
The applicant lodged an application for review of the delegate’s decision with the Tribunal on 24 April 2017.
The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES
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 cl.485.222 of Schedule 2 to the Regulations.
Clause 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.
Clause 485.222 provides that each degree, diploma or trade qualification used to satisfy the Australian study requirement must be closely related to the applicant’s nominated skilled occupation.
Under r.1.15F(1) of the Regulations, a person satisfies the ‘Australian study requirement’ if the person satisfies the Minister that the person has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that:
(a) are registered courses; and
(b) were completed in a total of at least 16 calendar months; and
(c) were completed as a result of a total of at least two academic years study; and
(d) for which all instruction was conducted in English; and
(e) the applicant undertook while in Australia as the holder of a visa authorising the applicant to study.
‘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).
For the purposes of this case, ‘2 academic years’ is specified by the Minister in IMMI 09/040 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.
It follows that the issues to be determined by the Tribunal are:
(a) Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?
(b) Is each degree, diploma or trade qualification relied upon by the applicant to satisfy the Australian study requirement closely related to the applicant’s nominated skilled occupation?
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant listed the following Australian study in his visa application (unedited):
Diploma of   Kings Institute of Management
Leadership and Management    and Technology  01/02/16 to 27/01/17
Certificate IV in   Kings Institute of Management
Commercial Cookery               and Technology  27/07/15 to 29/01/16
Certificate 3 in   Kings Institute of Management
Commercial Cookery               and Technology  28/07/14 to 19/06/15
Issue 1 – Did the applicant meet the Australian study requirement in the period of six months immediately before the day of the visa application?
The Tribunal first considered whether each of the courses completed by the applicant are a degree, diploma or trade qualification as required by r.1.15F to be taken into account in establishing whether the Australian study requirement is met.
The Tribunal is satisfied and finds that the Diploma of Leadership and Management is a diploma as defined by r.2.26AC(6) and can be taken into account. Further the Tribunal is satisfied that the Certificate III in Commercial Cookery and the Certificate IV in Commercial Cookery are trade qualifications as defined by r.2.26AC(6) and can be taken into account.
Having regard to all evidence and material before it, including the Australian Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) records and Provider Registration and International Student Management System records, the Tribunal finds that the Diploma of Leadership and Management course, the Certificate III in Commercial Cookery course and the Certificate IV in Commercial Cookery course are registered courses, being courses of education provided by institutions that are registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the courses to overseas students. The Tribunal therefore finds that r.1.15F(1)(a) is met.
Based on the evidence before the Tribunal, these courses were studied by the applicant for a total of at least 16 calendar months. The Tribunal therefore finds that r.1.15F(1)(b) is met.
CRICOS records show that the academic duration of the Diploma of Leadership and Management was 52 weeks, the academic duration of the Certificate III in Commercial Cookery was 47 weeks and the academic duration of the Certificate IV in Commercial Cookery was 69 weeks. These courses together were therefore of an academic duration of 168 weeks in total (that is, at least two academic years). Further, the Tribunal is satisfied on the evidence before it that all instruction was in English for the courses. The Tribunal is therefore satisfied and finds that the requirements of rr.1.15F(1)(c) and r.1.15F(1)(d) are met in relation to these three courses together.
Based on records from the Department of Home Affairs (the Department), the Tribunal is satisfied that the applicant held a Subclass 573 (Higher Education Sector) visa, a Subclass 010 Bridging visa[2] and a Subclass 572 (Vocational Education and Training Sector) visa between July 2014 and January 2017 authorising study. The Tribunal therefore finds that r.1.15F(1)(e) is met.
[2] In accordance with cl. 010.611(4)(a)(i) of Schedule 2 to the Regulations, when a Bridging Visa Class A is granted to the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. granted to a person who is the holder of a student visa at the time of application for the bridging visa, the same conditions which applied to the student visa apply to the bridging visa. The Department’s records show that the only additional specific conditions imposed upon the applicant’s Subclass 010 visa were condition 8105 prohibiting work of more than 40 hours per fortnight when the applicant’s course was in session (applicable only if doing a course other than a masters by research or a doctorate course).
As paragraphs (a) to (e) of r.1.15F are met, the Tribunal finds that the applicant meets the Australian study requirement. In considering whether that requirement was met in the six months immediately preceding the date of the visa application, the Tribunal notes that the Department’s policy guidelines contained in its Procedures Advice Manual (PAM3) states as follows in relation to the Australian study requirement under the Graduate Work stream:
When must the study have been undertaken
…
· if the applicant is claiming to satisfy the Australian study requirement on the basis of having completed more than one eligible qualification, they must have met the academic requirements for the award of their most recently completed qualification at some time in the 6 months immediately before the day the VC-485 application was made.
The applicant’s most recently completed qualification was the Diploma of Leadership and Management, which the Tribunal has found is an eligible qualification. Based on the documentary evidence before it, the Tribunal is satisfied and finds that the applicant completed that qualification on 27 January 2017, that is, within the period of six months immediately before the day of the visa application, 17 February 2017.
Therefore cl.485.221 is met.
Issue 2 – Is each such degree, diploma or trade qualification closely related to the applicant’s nominated skilled occupation?
An occupation is a ‘skilled occupation’ if it is 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.[3]
[3] Regulations 1.03 and 1.15l
The applicant nominated the skilled occupation of Chef, which is a skilled occupation specified in the relevant instrument.
The term 'closely related' is not defined in the Regulations. However, 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). Accordingly, the Tribunal has been guided by these cases in its consideration of this issue.
The leading authorities on the issue of whether a qualification used to satisfy the Australian study requirement is ‘closely related’ to the applicant’s nominated skilled occupation establish that:
(a) While the words ‘closely related’ are not defined in the legislation, they do 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 complementary (Constantino).
(b) In making the assessment, the nature of the nominated occupation must be determined by reference to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and, further, the ‘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’ (emphasis added) (Talha).
(c) It is appropriate to objectively consider the relationship of the applicant’s qualification (or, in this case, 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 [2010] FMCA 275, Kabir v MIAC [2010] FMCA 577 and Shafiuzzaman v MIAC [2011] FMCA 874).
(d) It is ultimately a matter for the decision-maker (that is, the Tribunal) to decide whether an applicant’s Australian qualifications are ‘closely related’ to the nominated skilled occupation (Talha) 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 occupation. (Talha, Dhillon and Constantino).
In making the assessment, the Tribunal has considered the nature of the nominated occupation as determined by reference to the ANZSCO and has read the ANZSCO as a whole with a view to identifying and applying information which is relevant to an understanding of the whole of the requirements of the nominated occupation.
The Tribunal has proceeded on the basis of objectively considering the relationship of the applicant's qualifications to the ANZSCO tasks for the occupation. The Tribunal has considered whether the applicant's Australian qualifications are ‘closely related’ to the nominated skilled occupation by carrying out an evaluative exercise of the whole of the Australian studies undertaken by the applicant compared with the whole of the nominated occupation.
The Full Federal Court's decision in Talha notes that the ANZSCO comprises a system of five hierarchies for classifying occupations. At the lowest level of this hierarchy, the ANZSCO has a list of ‘Occupations’. The next level of hierarchy is known as a ‘Unit Group’. The next step up the ladder of the ANZSCO hierarchy is known as a ‘Minor Group’. Minor Groups are then aggregated to form ‘Sub-Major Groups’ which, in turn, step up and are aggregated at the highest level to form ‘Major Groups’.
ANZSCO Unit Group 3513 Chefs states that the occupation of Chef has the following description and tasks:
UNIT GROUP 3513 CHEFS
CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.
Cooks, Fast Food cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cook. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
…
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
Occupation
351311 Chef
Plans and organises the preparation of food in a dining of catering establishment.
Skill Level: 2
The Tribunal accepts that the Certificate III in Commercial Cookery and the Certificate IV in Commercial Cookery courses are both qualifications which are closely related to the nominated skilled occupation of Chef.
The Statement of Results for the Diploma of Leadership and Management completed by the applicant shows the following subjects were completed by the applicant towards that course:
Develop and use emotional intelligence
Manage operational plan
Lead and manage effective workplace relationships
Lead and manage team effectiveness
Manage quality customer service
Manage an information or knowledge management system
Manage budgets and financial plans
Develop a workplace learning environment
Manage people performance
Support the recruitment, selection and induction of staff
Develop and manage performance-management processes
Develop workplace policy and procedures for sustainability
At hearing, the Tribunal discussed a number of matters with the applicant, including that the issue to be determined is not whether the Diploma of Leadership and Management might be useful to him in his nominated occupation, or whether it might be of assistance to him with his future aspirations or whether it is closely related to his current employment, but rather whether each of the qualifications are ‘closely related’ to the nominated skilled occupation.
Having identified the description and tasks information in ANZSCO in relation to the occupation of Chef, including having had regard to the tasks described in Unit Group 3513. The Tribunal also had regard to the higher hierarchies of which Unit Group 3513 forms a part, that is Minor Group 351 Food Trades Workers and Sub-Major Group 35 Food Trades Workers both of which Groups list a description and tasks as follows:
FOOD TRADE WORKERS bake bread and pastry goods, prepare meat for sale, and plan, organise, prepare and cook food for dining and catering establishments.
…
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 break, 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 Tribunal also had regard to the highest hierarchy of which Unit Group 3513 forms a part, that is Major Group 3 Technicians and Trades Workers which list the following description and tasks:
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.
…
Tasks Include:
ocarrying out tests and experiments, and providing technical support to Health Professionals, Natural and Physical Science Professionals and Engineering Professionals
oproviding technical support to users of computer hardware and software
ofabricating, repairing and maintaining metal, wood, glass and textile products
orepairing and maintaining motor vehicles, aircraft, marine craft and electrical and electronic machines and equipment
oconstructing, repairing, fitting-out and finishing buildings and other structures
ooperating printing and binding equipment
opreparing and cooking food
oshearing, caring for, training and grooming animals, and assisting Veterinarians
opropagating and cultivating plants, and establishing and maintaining turf surfaces for sporting events
ocutting and styling hair
ooperating chemical, gas, petroleum and power generation equipment
oproviding technical assistance for the production, recording and broadcasting of artistic performances
The Tribunal has considered the actual subjects studied in the Diploma of Leadership and Management course by the applicant, including by reference to the detailed Course Outlines provided as Annexure C to the applicant’s statutory declaration dated 18 July 2018 and the applicant’s reasons that those subjects are highly relevant and closely related to the occupation of a Chef as outlined in his statutory declaration dated 18 July 2018 as follows (unedited):
I believe that the Diploma of Leader and Management I obtained is highly relevant and closed related to the occupation of a chef for the following reasons:
a.     The kitchen can be a very stressful workplace during work periods with the need to complete orders in a constantly moving environment. Ideal chefs would be able to keep their emotions in check while managing the emotions and stresses of their kitchen staffs. A hostile and stressful work environment would result in unhappy staffs and high staff turnover rate. Enclosed in Annexure C.1 is the course outline for BSBLDR501 Develop and Use Emotional Intelligence.
b.     While chefs may not be required to manage the whole business, they are required to understand the business’ operational plan to ensure the kitchen is up to the required standard set by the operational plan. This may include implementing strategies for kitchen staffs to better manage resources by minimising wastage of ingredients, utilities and manpower. Enclosed in Annexure C.2 is the course outline for BSBMGT517 Manage Operational Plan.
c.     Chefs will need to ensure that there is a workplace harmony within the kitchen and that all staffs have a voice. Given that kitchen staffs generally do not prepare their own individual dishes from start to finish, it is important for staffs to have good working relationship with each other and be able to trust in their team members to continue/finish the dish. Where there are discontentments or suggestions, chefs should allow these to be heard then provide feedback or implementation accordingly. Enclosed in Annexure C.3 is the course outline for BSBLDR502 Lead and Manage Effective Workplace Relationships.
d.     As leaders of the kitchen, chefs are required to lead and manage kitchen staffs to ensure that the kitchen is running to maximum efficiency. A team performance plan would be very useful in this situation as it would assist staffs in developing a common goal based on the same expectations from every member of the team with the chefs encouraging individual members who may be experiencing difficulties meeting this goal. Due to the close proximity members work with each other in the kitchen including the chefs, chefs, should also be approachable as leaders and be willing to listen. Enclosed in Annexure C.4 is the course outline for BSBWOR502 Lead and Manage Team Effectiveness.
e.     There may be cases where chefs are required to directly deal with customers particular where there is dissatisfaction in relation to the food. By taking in feedback from customers, chefs can then alter or develop new plans to monitor or improve issues such food quality or speed of service. Chefs would also need to consider customer feedback and needs when planning menus. Enclosed in Annexure Cl.5 is the course outline for BSBCUS501 Manage Quality Customer Service.
f.   Knowledge management is important in all workplaces, including the kitchen given the positions within the kitchen are all hands-on jobs where most knowledge is taught through learning by doing. Having an established knowledge management is important for both new and existing employees in that new employees can be efficiently trained while existing employees can share knowledge/skills so that workload can be fairly distributed. Enclosed in Annexure C.6 is the course outline for BSBINM501 Manage an Information or Knowledge Management System.
g.     Chefs should be able to work with management in planning a budget for the kitchen then manage and communicate this budget to the staff. Quality/quantify of ingredients, numbered of rostered staffs and usage of utilities are all factors which contribute to costs and knowing, monitoring and recoding the costs of these factors would assist in budget planning. This skill can then be used in conjunction with the relevant managing skills of the mentioned factors to ensure efficient and reduce overall costs. Enclosed in Annexure C.7 is the course for BSBFIM501 Manage Budgets and Financial Plans.
h.     In conjunction with a knowledge management system, chefs should encourage an environment of teaching and willingness to learn within the kitchen. One method would be to allocate time during food preparation (before restaurant opening) for the chefs and staffs to teach other in a less tressed situation and foster the aforementioned environment of teaching which would then carry on through food preparation and making orders as the shift gets busier. Enclosed in Annexure C.8 is the course outline for BSBLED501 Develop a Workplace Learning Environment.
i.   To have an efficient team, chefs must also be able to manage and review individual performance of each team member by assessing performance, providing constructive feedback and following up the member’s performance after feedback and following up the member’s performance after feedback. It is also important for chefs to develop work plans within the kitchen and delegating tasks accordingly so that each staff has clearly defined roles. This would also give staffs a sense of purpose and responsibility and help the chef identify the source of potential problems within a kitchen for ease of managing the problem. Enclosed in Annexure C.9 is the course outline for BSBMGT502 Manage People Performance.
j.   It is important for chefs to understand the staffing needs within the kitchen given they are the leaders of the kitchen. By identifying the roles required chefs can then clearly communicate with management regarding staff requirement and actively participate in interviews to assist management in determining whether the prospective staff is a suitable fit for the kitchen. Enclosed in Annexure C.10 is the course outline for BSBHRM405 Support the Recruitment, Selection and Induction of Staff.
k.     In addition to being able to manage individual performance, it becomes especially important in larger kitchens to also have a performance management process so that chefs do not become overwhelmed by trying to assess performance of all staffs and lose capacity to perform the many other duties required. A performance management process so that chefs do not become overwhelmed by trying to assess performance of all staff and lose capacity to perform the many other duties required. A performance management process can assist senior kitchen staffs to have consistency and guidance in managing lower level staffs’ performance. Enclosed in Annexure C.11 is the course outline for Develop and Manage Performance Management Processes.
l.   Workplace sustainability is important in all industry, no less so in the food industry where resources such as gas, power, water and food is constantly being used. In addition to the benefits of reducing costs, managing resources through a sustainability policy and educating staffs is the social responsibility of all leaders (including chefs) and is a widely promoted policy by the Australian government. Enclosed in Annexure C.12 is the course outline for Develop Workplace Policy and Procedures for Sustainability.

The Tribunal also took into account the Full Federal Court’s observations on that approach in Talha and, as already noted, the need to compare the whole of the visa applicant’s studies against the whole of the nominated occupation.
Consistent with the approach suggested by the Court in Talha, the Tribunal also considered the tasks described for Unit Group 3513 Chefs, as well as Minor Group 351 Food Trades Workers, Sub-Major Group 35 Food Trade Workers and Major Group 3 Technicians and Trades Workers, of which Unit Group 3513 Chefs forms part, as outlined above.
It was submitted on behalf of the applicant that the delegate used a narrow and literal (incorrect) interpretation simply because the words ‘management and leadership’ were not mentioned and submitted that ‘plans and organises’ befit what leaders and managers do, that ‘the preparation and cooking of food’ indicates what the planning and organising relates to and ‘in a dining or catering establishment’ means that there is a kitchen with multiple staffs.
The Tribunal is satisfied from analysing the qualifications and the relevant tasks for the whole of the occupation of Chef that some of the skills acquired from the Diploma of Leadership and Management course are related to some of the tasks involved in carrying on the nominated skilled occupation as a Chef. The Tribunal accepts that skills gained in subjects such as ‘develop and use emotional intelligence’, ‘manage quality customer service’, ‘support the recruitment and selection and induction of staff’ are related to and complementary to tasks undertaken by chefs such as, as submitted, ‘planning menus, estimating food and labour costs, and ordering food supplies’, ‘discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff’, and ‘select[ing] and train[ing] staff’ (Unit Group 3513 Chefs tasks). The Tribunal also accepts that the skills gained would also be of some relevance to, as submitted, tasks such as ‘demonstrating techniques and advising on cooking procedures’ and ‘explaining and enforcing hygiene regulations’. (Unit Group 3513 Chefs tasks).
Further, the Tribunal is satisfied that some of the skills acquired from the Diploma of Leadership and Management course are related to some of the tasks described in relation to Minor Group 351 Food Trades Workers and Sub-Major Group 35 Food Trades Workers, such as ‘planning menus, estimating food and labour costs, and ordering food supplies’ and ‘monitoring quality of food at all stages of preparation and presentation’
The Tribunal accepts that overall skills in leadership and management would be of assistance to undertaking the role of chef, and of relevance to some of the described tasks, however in having considered the nature of the occupation of Chef as a whole by reference to reading ANZSCO as a whole, the Tribunal is not satisfied that the skills acquired from the Diploma of Leadership and Management are closely related to the occupation of Chef.
It was also submitted on behalf of the applicant that the following knowledge, skills and abilities noted as being most important by Chefs on the Australian Government’s Job Outlook website are ‘important to a chef which are once again all relevant to the units in the Diploma of Leadership and Management’:
(a) Customer and Personal Service – ‘This includes understanding customer needs, proving good quality service, and measuring customer satisfaction.’
(b) Administration and management – ‘Planning and coordination of people and resources.’
(c) Personnel and Human Resources – ‘Recruiting and training people. Managing pay and other entitlements like sick and holiday leave. Negotiating pay and conditions.’
(d) Monitoring – ‘Keeping track of how well people and/or groups are doing in order to make improvements.’
(e) Coordination – ‘Changing what is done based on other people’s actions.’
(f) Management of Personnel Resources – ‘Motivating, developing, and directing people as they work, and choosing the best people for the job.’
(g) Management of Financial Resources – Figuring out how money is needed to do something and keeping track of the money that’s being spent.
The Tribunal accepts, as submitted, that the particularised knowledge, skills and abilities noted are ‘important to a chef’ and may be ‘relevant to the units in the Diploma of Leadership and Management’. However, the test is not one of importance or relevance but whether the qualification is closely related to the occupation. The Tribunal is not satisfied, having regard to the whole of the occupation of Chef, and the identified knowledge, skills and abilities noted on the website as being most important to Chefs, that the Diploma of Leadership and Management is closely related to the occupation of Chef.
Reference is also made in submissions made on behalf of the applicant to job advertisements for Chefs confirming the duties required from a Chef to include:
(a) Lead and manage the kitchen
(b) Supervise the activities of the kitchen
(c) Give directions to other kitchen staffs
(d) Train and supervise other kitchen staffs
(e) Estimate and track food costs for management’s pricing decisions
(f)    Assign duties to each Kitchen Section Leader
(g) Manage overall process flow in the kitchen
(h) Plan labour allocation and wages pertaining to management’s budget
(i)    Be fully in charge of hiring, managing and training kitchen staff
(j)    Oversee the work of subordinates
The Tribunal accepts that the skills obtained from the Diploma of Leadership and Management would assist with, and be complementary to, the duties described in various job advertisements for Chefs put forward as examples. However, there are other duties referred to in the various job advertisements which are not highlighted in the submissions and, in the Tribunal’s view, are not duties to which the skills obtained from the Diploma of Leadership and Management would be closely related. Examples are ‘approve and “polish” dishes before they reach the customer’, ‘comply with nutrition and sanitation’, ‘keep up with industry trends and create new recipes in collaboration with the Sous Chef’, ‘highly skilled in cooking and preparing a variety of cuisine’, ‘dedicated to food quality and control’, ‘strong knowledge of proper food handling and sanitation standards’, ‘check food to ensure its quality’, ‘regulate temperatures of ovens, grills and other cooking equipment’, ‘prepare food for cooking’, ‘cook food by a range of methods (e.g. baking, braising, frying, roasting or steaming)’, ‘divide food into portions and makes sure that the food is well presented’, ‘clean food preparation areas and equipment’, ‘store food in temperature-controlled facilities’, ‘receive and store supplies’, ‘make sure kitchen is hygienic and functional’ and ‘prepare food to meet special dietary requirements’. Having regard to the totality of the duties described, the Tribunal is not satisfied by reference to this submitted resource that the Diploma of Leadership and Management qualification is closely related to the nominated skilled occupation of Chef.
Further, the Tribunal took into account a letter from David Dolley, a consultant engaged by the applicant. Mr Dolley’s letter states as follows (unedited):
I am the principal of a college registered on CRICOS for delivery of hospitality and management courses, and I have worked with credit transfers and course design on the above courses for over 12 years. I’m familiar with the knowledge that students gain in those courses at a detailed level as a result of having designed our courses and written many assessment tasks.
The ANZSCO definition of a chef notes that they plan and organise, estimate food and labour costs, monitor quality, discuss issues with managers and others, explain and enforce regulations, and may select staff and provide training amongst other duties.
The Diploma of Leadership and Management provides training in those areas so that holders can make decisions from a management perspective and lead their teams in better ways.
As the DLM qualification is from the Business Services Training Package, it could be said to be slightly more sophisticated than training in the Tourism, Travel and Hospitality Training Package, and it certainly provides a broader perspective. They many cooking options available to Diploma of Hospitality Management students make it a much ‘softer’ qualification.
With regard to the qualifications submitted by Mr Mandeep Singh, the attached analysis shows that the 12 units covered in his Diploma of Leadership and Management can be readily mapped to typical Hospitality Management studies. Two units are direct matches to Diploma of Hospitality Management, and nine others are close matches. Only one unit (BSBLDR501) Develop and Use Emotional Intelligence) isn’t covered in the hospitality and training packages, but it has obvious relevance to working as a chef.
In fact, Mr Singh’s Certificate III and IV in Commercial Cookery plus Diploma of Leadership and Management appear to easily exceed the requirements to be awarded a Diploma of Hospitality Management. Based on my extensive experience with these training packages and contemporary international students, a Diploma of Leadership and Management graduate would obtain a very strong result in any Diploma of Hospitality and Management written or oral test in the 11 matching units, as mentioned above.
Generally speaking, with the supplied vocational competence evidence provided by Mr Singh, he would likely be given credit transfers for a Diploma of Hospitality Management should he require one, or, if minor details could not be mapped between the courses, he could be expected to easily pass the required test/s. Award of the Diploma of Hospitality Management requires that the candidate provide evidence of ‘shifts’ worked in a real hospitality environment: Mr Singh appears to exceed that requirement.
It would appear that Mr Dolley’s opinion is submitted in support of the contention that a Diploma of Hospitality Management would be a qualification that is closely related to the nominated skilled occupation of Chef, and that two units of the Diploma of Leadership and Management are direct matches to Diploma of Hospitality Management subjects and that nine subjects are close matches, such that by analogy, the Diploma of Leadership and Management should also be accepted as being a qualification that is closely related to the nominated skilled occupation of Chef. The Tribunal has two concerns with this argument. Firstly, cl.485.222 requires that the qualification or qualifications relied upon to satisfy the Australian study requirement be closely related to the nominated skilled occupation, not that the qualification or qualifications be closely related to another qualification which is closely related to the nominated skilled occupation. Further, and importantly, Mr Dolley’s reference to the Certificate III and IV in Commercial Cookery plus the Diploma of Leadership and Management together easily exceeding the requirements to be awarded a Diploma of Hospitality Management is not a relevant consideration. What is required by cl.485.222 is that each qualification relied upon to satisfy the Australian study requirement be closely related to the nominated skilled occupation, not the qualifications together. The Tribunal remains of the view, having regard to the whole of the occupation of Chef that the Diploma of Leadership and Management is not closely related to the nominated skilled occupation of Chef.
It was also submitted on behalf of the applicant that an earlier Tribunal decision, of the Tribunal differently constituted in Kim (Migration) [2018] AATA 126 (1 February 2018) (Kim), concluded that a Diploma of Leadership and Management qualification is closely related to the nominated occupation of Chef and that the applicant’s case is very similar to that of Kim such that a similar conclusion should be reached in this matter.
Notably, there are also other decisions of this Tribunal that have concluded that a Diploma of Leadership and Management is not closely related to the occupation of Chef. Although the Tribunal is of the view that consistency in decision-making is desirable, each matter needs to be considered on its own facts. The Tribunal is not bound to follow previous decisions of the Tribunal either in relation to factual findings or legal determinations. As Smith FM stated in Pasula v Minister for Immigration [2010] FMCA 219 at [31]:
Consistency of factual outcomes is, no doubt, desirable in an administrative agency. However, as far as I am aware, there is no authority suggesting that an administrative tribunal is lawfully entitled to give greater weight, or even a substantial weight, to this objective, if this involves declining to give effect to its own opinions on fact and law in relation to the matter before it.
Each case must be considered by reference to its own merits. The Tribunal has had regard to the content of the Diploma of Leadership and Management qualification undertaken by the applicant, and the resultant skills, and has considered the evidence before it, and submissions made on behalf of the applicant, as canvassed in these Reasons. Having taken into account all of these matters, the Tribunal is unable to be satisfied that the Diploma of Leadership and Management qualification is closely related to the nominated skilled occupation of Chef.
It follows that cl.485.222 is not met in relation to the Diploma of Leadership and Management qualification undertaken by the applicant.
Conclusion
In conclusion therefore, the Tribunal is only satisfied that the Certificate III in Commercial Cookery qualification and the Certificate IV in Commercial Cookery qualification are closely related to the nominated skilled occupation of Chef and not the Diploma of Leadership and Management qualification. Clause 485.222 is therefore only met in relation to the Certificate III in Commercial Cookery and the Certificate IV in Commercial Cookery. As neither the Certificate III in Commercial Cookery nor the Certificate IV in Commercial Cookery was completed in the six months immediately before the date of the visa application, 17 February 2017, those qualifications, without the Diploma of Leadership and Management, mean that cl.485.221 cannot be met.
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.
Susan Trotter
Member

[2018] AATA 3899

14 August 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction