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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

9. 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.

10. The applicant provided evidence that she was successful in obtaining a TRA on 26 July 2017 as a Sous Chef. [Tribunal File: Folio – 22]

11. 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.

12. 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.

13. 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.

14. 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.

15. The applicant stated that she would like to be a qualified chef and then she will go back to Taiwan.

16. The applicant stated that she wanted to be a chef competent in Western cooking, which would help her to develop herself.

17. The Head Chef from the University Hall Catering confirmed in a submission to the Tribunal on 9 March 2020 the employment and duties of the applicant, which the Tribunal has considered. [Tribunal File: Folio – 21]

18. The applicant provided the Tribunal with a written submission [Tribunal File: Folios 15-20] that relied upon the following case law:

    a.Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014).

    “On my reading of c1.485.213(b), there is no warrant for such a construction. If all or a substantial part of a diploma results in skills that form part of the skill set of the nominated skilled occupation, c1.485.213(b) would be satisfied. That a diploma results in conferring skills, all or a substantial part of which form part of the skill set of the nominated occupation, is sufficient to establish a close relation between the diploma and the nominated skilled occupation. [paragraph 37,39]”

    b.Talha v Minister for Immigration and Border Protection, (2015) FCAFC 115 (25 August 2015)

    “The words "closely related" are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is "closely related" to a nominated occupation does not require the finding of an exact correspondence between the two but it does require "that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists": Constantino v Minister for Immigration and Border Protection [20131 FCA 1301, [26]. [Paragraph 53]”

    c.Prsad v Minister for Immigration and Citizenship [20121 FCA 591

    “"Closely related" certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of "near" in the present context. "Related" requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.[paragraph 24]”

    d.Minister for Immigration and Border Protection v Dhillon [20141 FCAFC 157

    “The words "closely related" are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is "closely related" to a nominated occupation does not require the finding of an exact correspondence between the two but it does require "that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists. [ paragraph 20]”

19. The applicant submitted that: “Overall of legal explanations made by court: The decision means that there does not have to be a direct "overlap" or "match" between the subject matter of the course and the nominated skilled occupation in order for an applicant to be able to qualify for a Temporary Graduate visa. All that is necessary is that the skills that are gained through the Australian study must be capable of being used for more than a small part of the skilled occupation.”

20. The applicant submitted that the subject content of the leadership and management courses she studied is required in the role of a Sous Chef and to work in the industry. The applicant relied upon her applied skills in the University Club, which has 6 meeting rooms and two outdoor areas, which host events for up to 600 people.

21. It was submitted that the leadership and management skills learned through the course “enhanced my leader and managerial skills while I work in the kitchen” and that the courses delivered “useful knowledge and directions” when you need to deal with issues at workplace.

22. The applicant submitted that a Chef requires both soft and hard skills and that part of the soft skill utilised is leadership and management, as the chef’s responsibility is to organise team players. Employers in the industry seek those leadership skills. It was further submitted that the leadership and management skills are directly transferrable to the occupation.

    Does the applicant meet the Australian study requirement?

23. 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.

24. ‘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 (IMMI 09/040).

25. The Tribunal finds that the applicant’s study for the specified qualification for the occupation of Chef - ANZSCO: 351311, would in the Tribunal’s view, include the completion of:

    a.Diploma of Hospitality from 26 January 2015 to 10 July 2015;

    b.Certificate IV in Hospitality (Commercial Cookery) from , 04 August 2014 to 30 January 2015; and

    c.Certificate III in Hospitality (Commercial Cookery) from 27 May 2013 to 23 May 2014.

26. Further, the Tribunal finds ‘prima face’ (pending a consideration of the ‘closely related’ status criteria hereunder) that the qualifications related to the occupation of a Chef - ANZSCO: 351311 were completed more than six months immediately preceding the date of the visa application and included the completion of a Diploma of Hospitality; Certificate IV in Hospitality (Commercial Cookery) and Certificate III in Hospitality (Commercial Cookery). In this regard, the completion of the most recent relevant course was on 10 July 2015.

27. On this basis, the Tribunal finds that the applicant did not satisfy the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant does not meet cl.485.221.

28. Accordingly, the Tribunal is not satisfied that the applicant has met cl.485.221

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

29. In addition, cl.485.222 requires the qualification used to satisfy that requirement to be 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).

30. In this case, the applicant nominated the occupation of Chef – ANZSCO: 351311, which is a skilled occupation specified in the Legislated Instrument - Skilled visas (IMMI 16/059 Schedule 1, which commenced on 1 July 2016).

31. The evidence provided by the applicant demonstrated that the primary qualification, as a Chef, was undertaken by the applicant through completion of the following qualifications:

    a.Diploma of Hospitality from 26 January 2015 to 10 July 2015;

    b.Certificate IV in Hospitality (Commercial Cookery) from , 04 August 2014 to 30 January 2015; and

    c.Certificate III in Hospitality (Commercial Cookery) from 27 May 2013 to 23 May 2014.

32. Further, the Tribunal does not accept that the completion of a the following courses are courses of study directly related or ‘closely related’ to the occupation of Chef – ANZSCO: 351311:

    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

33. The Tribunal finds that the subject matter of the Certificate IV in Leadership and Management and a Diploma in Leadership and Management over a 14 month period prior to the applicant’s application for the occupation of Chef, have no specific trade relationship to the occupation of Chef. Further, the courses more closely relate to the professional occupation of leadership and management, which is a discrete occupation within itself (at a professional level) and is not the ‘trade occupation’ that has been applied for in the applicant’s application. In this regard, the Certificate and Diploma courses are more akin to the occupation prescribed for an ‘Other Specialist Manager - ANZSCO: 139999’.

34. Whilst the Tribunal acknowledges that “leadership and management” training would be useful to the occupation of Chef, the applicant does not require such specialist training to undertake the role of a chef, as the core activities relating to providing direction regarding the allocation of resources, production of menus, rosters and the like, is already contemplated within the core modules provided through the Certificates in Commercial Cookery and the Diploma of Hospitality. As such, the Tribunal does not accepted that extended study in leadership and management is required to exercise the basic trade skills as a chef..

35. The Tribunal finds that the courses of study toward a Certificate of Leadership and Management and a Diploma of Leadership and Management over a 14 month period is not necessary to undertake the occupation of a Chef and are considered by the Tribunal to be discretionary rather than mandatory to perform in the occupation.

36. The evidence provided by the applicant demonstrated that the primary qualification, as a Chef, was undertaken by the applicant prior to further non related studies undertaken post 10 July 2015.

37. The Tribunal, in determining whether the courses undertaken by the applicant are ‘closely related’ to the occupation of Chef: ANZSCO Code 351311, is not satisfied, in the broader context of the trade occupation, that the study of Leadership and Management is required. Specifically, since 10 July 2015, the courses undertaken cannot be viewed as ‘closely related’ to the occupation of Chef: ANZSCO Code 351311. In this regard, the Tribunal is guided by the decision of the Full Court in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115 (25 August 2015) (Griffiths, Mortimer and Beach JJ), which includes the following:

    “[53] Of course, it is ultimately a matter for the primary decision-maker and, on a statutory review, the Tribunal, to decide whether Mr Talha’s Australian studies are “closely related” to his nominated skilled occupation. But in carrying out the evaluative exercise it is critical that the whole of Mr Talha’s Australian studies be compared with the whole of his nominated occupation, as established in previous decisions of the Court, including Dhillon at [20] per Allsop CJ, Murphy and Pagone J, Constantino at [26] per Jacobson J and Bhanot at [29] per Perry J. As the Full Court stated in Dhillon at [20]:

    The words “closely related” are not specifically defined in the Regulations or the relevant statutes but require, and call attention to, the connection between two things. The task to be undertaken to determine whether a qualification is “closely related” to a nominated occupation does not require the finding of an exact correspondence between the two but it does require “that the whole of the qualification must be compared with the whole of the occupation to determine whether the necessary close relationship exists”: Constantino v Minister for Immigration and Border Protection [2013] FCA 1301, [26]. That is what the Tribunal did. The Tribunal informed itself about the nature of the skilled occupation of pastry cook by considering the Australian Standard Classification of Occupations (ASCO) and compared that with the course content submitted by Mr Dhillon for the units undertaken by him in the business management course completed at the Nova Institute. At [91] the Tribunal considered that the requirement of a qualification being “closely related” to the nominated occupation required that the relationship between the skills gained in the qualification were more than merely complementary to the occupation or that the skills could be used in that occupation. The Tribunal did not ask itself an incorrect question when determining whether the qualifications relied upon by Mr Dhillon were closely related to his nominated profession of pastry cook (see Bhanot v Minister for Immigration and Border Protection [2014] FCA 848, [21], [24], [38]) and on the materials its finding was open to the Tribunal.
    
    (Emphasis added).

    The point of distinction between Dhillon and this proceeding is that the Tribunal here did not properly construe and apply the relevant parts of the ANZSCO Code which related to Mr Talha’s nominated skill occupation.”

38. Further, the Tribunal is not satisfied that the argument derived by the applicant from Tobon v Minister for Immigration & Anor (2014) FCCA 2208 (26 September 2014) - “That a diploma results in conferring skills, all or a substantial part of which form part of the skill set of the nominated occupation, is sufficient to establish a close relation between the diploma and the nominated skilled occupation. [paragraph 37,39]” applies in relation to the principal occupation of Chef and the corresponding ANZSCO descriptor, as the Tribunal does not accept that leadership and management forms all or a substantial part  of the skill set of the occupation of Chef.

1. The Tribunal finds that the applicant’s study for the specified qualification has not satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application, as the last related study to the occupation of Chef: ANZSCO Code 351311 was completed on 10 July 2015.

2. As the applicant’s recent qualifications are not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

3. 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

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

   Warren Stooke AM
   Member