SONGPHANKHOTCHASAN (Migration)

[2021] AATA 2302

SONGPHANKHOTCHASAN (Migration) [2021] AATA 2302 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr BUNDIT SONGPHANKHOTCHASAN

CASE NUMBER:  1821129

HOME AFFAIRS REFERENCE(S):          BCC2018/3979397

MEMBER:Catherine Carney-Orsborn

DATE:16 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.221 of Schedule 2 to the Regulations

·cl.485.222 of Schedule 2 to the Regulations

Statement made on 16 June 2021 at 2:56pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – qualification closely related to nominated occupation – qualification in leadership and management and occupation of chef – comparison of units of study and other material to ANZSCO description – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cls 485.221, 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 4 July 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 applied for the visa on 28 June 2018. 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 (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.

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 delegate was not satisfied that the course Certificate of Leadership and Management was closely related to the nominated occupation of Chef.

4. The applicant appeared before the Tribunal on 8 June 2021 to give evidence and present arguments.

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 matter should be remitted for reconsideration.

   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 cl.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 before 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.

8. The Tribunal held a hearing and took oral evidence from the applicant.  Prior to the hearing the representative provided detailed submissions.  The Tribunal has the Department’s file and the Tribunal file.

9. At hearing the applicant stated that he had been studying in Australia for some time.  He has worked in large hospitality venues and is currently employed but temporarily stood down due to the lockdown in Melbourne.  His current job is as a Chef in a hospitality venue.

10. The Tribunal has looked at the website and asked the applicant questions about his employment including relation to what style dishes he prepares.  The Tribunal is satisfied that he currently employed as a Chef de partie.

11. The applicant gave evidence that his latest certificate directly relates to his work as a Chef.  He claims that Chefs often must focus on management and leadership.  He claims that the subjects he studied were the same as the one in the Diploma of Hospitality management. 

12. In submissions provided he outlined the correlation with the skills outlined in the ANZSCO definition of Chef and the subjects in the Certificate IV in Leadership and Management that he studied. 

13. The applicant provided evidence of his previous studies, they were Certificate 111 and 1V in Commercial Cookery, Diploma of Hospitality and the Certificate IV in Leadership and Management from 15/03/2017 – 18/06/2018.  

    Does the applicant meet the Australian study requirement?

14. 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 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:

    ·that are registered courses; and

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

    ·that were completed as a result of a total of at least 2 academic years study; and

    ·for which all instruction was conducted in English; and

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

15. ‘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, one ‘academic year’ is at least a total of 46 weeks, being the duration of a course registered under the Education Services for Overseas Students Act 2000.

16. On the evidence before it the Tribunal is satisfied that the applicant completed his studies in the six months immediately before the application was made.  The Tribunal is satisfied that the course was registered, the courses he undertook satisfy the time requirements, the study was conducted in English and the applicant held a student visa.

17. The Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately before the date of the visa application. Therefore, the applicant meets cl.485.221.

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

18. In addition, cl.485.222 requires each qualification used to satisfy that requirement is closely related to the applicant’s nominated skilled occupation. 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 18/051.

19. In this case, the applicant nominated the occupation of Chef which is a skilled occupation specified in IMMI 18/051.

20. The Tribunal has considered the evidence presented to it.  The Tribunal is satisfied that the applicant has undertaken a significant amount of study to be a chef.  The Tribunal is further satisfied that he has been employed as a Chef consistently since 2016.

21. The Tribunal has considered the ANZSCO outline of Chef as well as job advertisements and evidence of duties of Chef.  The Tribunal accepts that the role of Chef requires leadership and management and there is satisfied that the last course Leadership and Management is closely related to his profession.     

22. As each qualification used to satisfy the Australian study requirement is closely related to the nominated skilled occupation, the applicant meets cl.485.222.

23. On the basis of the above findings, the Tribunal finds that the applicant meets the requirements of cl.485.221 and 485.222. The appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

24. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    ·cl.485.221 of Schedule 2 to the Regulations

    ·cl.485.222 of Schedule 2 to the Regulations.

    Catherine Carney-Orsborn
    Member