TENG (Migration) - [2020] AATA 1454

TENG (Migration) [2020] AATA 1454 (23 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Mei-ling TENG
CASE NUMBER:  1716699
HOME AFFAIRS REFERENCE(S):          BCC2017/2071881
MEMBER:Warren Stooke AM
DATE:23 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 23 April 2020 at 12:36pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Australian study requirement – courses closely related to occupation completed more than six months before date of application – later courses not closely related to occupation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15F(1), Schedule 2, cll 485.221, 485.222
CASE
Talha v Minister for Immigration and Border Protection [2015] FCAFC 115
Tobon v Minister for Immigration (2014) FCCA 2208
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 12 July 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 12 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 (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.
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 courses of study immediately before the application of the 485 visa were not closely related to the occupation of Chef – ANZSCO 351311.
The applicant appeared before the Tribunal on 19 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 12 July 2017 and that she understood the content of the decision. In this regard, the applicant stated that the delegate referred to 485.222 as not being closely related. The delegate did not accept that Leadership and Management as closely related.
The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: TENG (Migration) [2020] AATA 1454
Case: [2020] AATA 1454
Decision Date: 23 April 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a Subclass 485 (Temporary Graduate) visa. The applicant, a national of Taiwan, sought to satisfy the criteria for the Graduate Work stream of this visa, which requires meeting the 'Australian study requirement' and ensuring that the qualifications used to meet this requirement are closely related to the applicant's nominated skilled occupation. The primary dispute concerned whether the applicant's completed courses met these specific criteria.

The legal issues before the Tribunal were whether the applicant had satisfied the Australian study requirement within the six months immediately preceding the visa application, and whether each degree, diploma, or trade qualification relied upon was closely related to the applicant's nominated occupation of Sous Chef. The applicant had completed several courses, including a Diploma of Leadership & Management and a Certificate IV in Leadership & Management, in addition to qualifications directly related to commercial cookery and hospitality.

The Tribunal reasoned that while the applicant had obtained a TRA for Sous Chef and had relevant work experience, the crucial question was the relationship between the leadership and management qualifications and the nominated occupation. The applicant argued that a Sous Chef role involved leadership and management, budget control, and team supervision, extending beyond mere cooking. However, the Tribunal found that the leadership and management courses were completed more than six months before the visa application date. Furthermore, the Tribunal concluded that these specific courses were not closely related to the nominated occupation of Sous Chef, as required by the regulations.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, as the applicant failed to satisfy the relevant criteria for the Subclass 485 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. The applicant is a 35 year old from Taiwan, who confirmed in evidence that she undertook the following courses of study:a.Diploma of Leadership & Management, 15 June 2016 to 16 December 2016;b.Certificate IV in Leadership & Management, 12 October 2015 to 22 April 2016;c.Diploma of Hospitality, 26 January 2015 to 10 July 2015;d.Certificate IV in Commercial Cookery, 04 August 2014 to 30 January 2015;e.Certificate III in Hospitality Commercial Cookery, 27 May 2013 to 23 May 2014. The applicant provided evidence that she was successful in obtaining a TRA on 26 July 2017 as a Sous Chef. [Tribunal File: Folio – 22] The applicant confirmed to the Tribunal that she holds a Bridging Visa A that allows full permission to work; does not permit travel; has full permission to study and has an obligation under criterion 8105 to maintain health cover, which she currently maintains with BUPA and pays monthly. The applicant stated that she currently works in the kitchen at the University Club of Western Australia, where she has been for almost 6 years on a part-time basis. The applicant gave evidence that she had worked 20 hours during her student period and now works from 30 to 40 hours, depending upon the roster, at an hourly rate of $26.00 as a Chef Assistant. The Tribunal asked the applicant how Certificate IV and the Diploma in Leadership and Management meet the ‘closely related’ criteria for the occupation of Chef and the applicant provided the following response:a.A Sous Chef is not just involved in cooking but in leadership and management, with the leadership of a team;b.There are different tasks in the real work to meet requirements and structured goals. c.The Sous Chef works under the Head Chef, who leads the team by delivering content to the lead team under high pressure and the allocation of people into skill groups;d.Teams are developed as multi-tasks providing a learning environment, which is “not just cooking”;e.Manage the budgets and labour costs and in a high end restaurant there is a need to allocate resources and how to lead this team;f.The delegate would not be restricted given PAM3 and the law;g.ANZSCO is used to describe the labour market but there is a need to consider the labour market;h.ANZSCO is “general and narrow”;i.Junior staff need to be monitored.

Decision

Reasons for decision

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.Warren Stooke AMMember

Ratio Decidendi

Legal Principle Established

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