VALENCIA SUAREZ (Migration)

[2018] AATA 5128

VALENCIA SUAREZ (Migration) [2018] AATA 5128 (17 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss DANIELA VALENCIA SUAREZ

CASE NUMBER:  1716023

HOME AFFAIRS REFERENCE(S):           BCC2017/2290316

MEMBER:Denise Connolly

DATE:17 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 December 2018 at 2:26pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – Graduate Work stream – Australian study requirement – Diploma of Events – qualification not closely related to nominated occupation of chef – decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000, s 9
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.222, r 1.15F(1)

CASES
Constantino v MIBP [2013] FCA 1301
MIBP v Dhillon (2014) 227 FCR 525
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 6 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 28 June 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 primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis the applicant did not satisfy cl.485.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the qualification on which the applicant relied to meet the Australian study requirement was closely related to her nominated occupation.

4. The applicant appeared before the Tribunal on 1 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicant was represented in relation to the review by her 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

1. 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.

Does the applicant meet the Australian study requirement?

1. 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.

2. ‘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.

3. The applicant provided evidence that she completed the following study in Australia.

   ·Diploma of Hospitality, Australian Pacific College, April 2015 to September 2016

   ·Diploma of Events, Martin College, November 2016 to June 2017.

4. The delegate recorded that the applicant had completed registered courses, in a total of at least 16 months as a result of at least 2 academic years. The delegate found the applicant completed the Diploma of Events on 16 June 2017. The Tribunal notes those courses were conducted in English and that the applicant had held a student visa authorising study. For the purposes of the review the Tribunal finds that the applicant satisfied the Australian study requirement in the 6 months immediately preceding the date of the visa application. Therefore, the applicant meets cl.485.221.

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

1. In addition, cl.485.222 requires the qualifications used to satisfy that requirement are 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).

2. In this case, the applicant nominated the occupation of Chef which is a skilled occupation specified in the relevant instrument.  

3. As the only qualification the applicant completed in the 6 months immediately preceding date of the application is the Diploma of Events, the applicant must rely on this qualification to satisfy the Australian study requirement. Therefore the Tribunal must be satisfied this qualification is closely related to the nominated occupation Chef.

4. The applicant has provided the academic transcripts for her courses. The delegate considered the transcript for the Diploma of Events but formed the view it showed little relationship between the qualification and the nominated occupation. The delegate found the skill set underpinning the qualification should be directly transferable to the nominated occupation, in terms of both subject matter and the level of qualification at which those skills were obtained. The delegate observed that completing the Diploma of Events may possibly assist the applicant in her future career plan. However cl.485.222 requires that the course must be closely related to the applicant’s nominated skilled occupation. In assessing this, the delegate considered the ANZSCO description for the nominated occupation and its duties. She noted the ANZSCO description did not refer to event planning. She concluded that the applicant’s Diploma of Events is not closely related to the nominated occupation of Chef.

5. When making the review application, the applicant provided a written submission in which she asserts that the courses she has studied are related to her nominated occupation. She referred to the head chef position at the International Convention Centre Sydney. She noted under his leadership his team has won several industry awards for their food which was offered at conferences and events held in Australia. She understood that she was granted her student visa because she demonstrated that her previous studies were closely related to the Diploma of Events. She provided a copy of a statement of purpose prepared for her student visa application lodged in November 2016. She noted that she could not apply for the Subclass 485 visa after completion of her Diploma of Hospitality because that course was only for 1½ years and she did not meet the minimum 2 year study requirement to be granted the Subclass 485 visa. She believes her Diploma of Events is a perfect match to combine her previous studies and her prospective objectives mentioned.

6. The applicant attached a letter addressed to the Department dated 26 October 2016 in which she explains that she applied for a student visa in order to pursue education in Event Management at Martin College. She noted that she had been working as a chef for different companies, and improving her skills and duties. Since her career goal is to become a successful entrepreneur, working in her own business, she needed the Diploma because it would open doors to special high-level management. She was specifically interested in events and catering. She referred to her Bachelor degree when she worked on designing food, hospitality magazines and events. She looked for a well-known college in Event Management specifically in Australia because it is a major power in Asia-Pacific and a technological leader in many fields. She referred to some of the larger companies such as Merivale. She believes Australia is one of the pioneers in hospitality and offers one of the best education systems in the world. She approached Martin College who suggested she undertake the Diploma of Events as preparation for starting her own business.

7. Prior to the hearing the applicant provided a written submission in which she argues that the courses she has studied in Australia are related to the occupation Chef. She refers to her Bachelor degree and subjects undertaken in that course including those related to management and marketing. She refers to subjects in the Diploma of Events; business relationships, customer relationships, coordinating event marketing and applied computing. She noted that during her Diploma of Hospitality she undertook similar subjects.

8. The applicant provided a translated transcript for her qualification attained in Columbia, a Bachelor of Gastronomy and Professional Cooking. She also provided transcripts for the diploma courses undertaken in Australia.

9. The applicant’s representative provided a written submission which refers to the applicant’s submissions and documentation, the ANZSCO description and the relationship between the nominated occupation and subjects undertaken in the applicant’s diplomas.

10. The nominated occupation is described in Unit Group 3513 in ANZSCO. While the Tribunal is not bound by this description it is of the view it a useful tool in considering the duties of the nominated occupation and the skill level. It also facilitates consistency in decision making.  It relevantly states as follows:

    UNIT GROUP 3513 CHEFS

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

    Indicative Skill Level:
    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)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oplanning menus, estimating food and labour costs, and ordering food supplies

    omonitoring quality of dishes at all stages of preparation and presentation

    odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    odemonstrating techniques and advising on cooking procedures

    opreparing and cooking food

    oexplaining and enforcing hygiene regulations

    omay select and train staff

    omay freeze and preserve foods

    
    Occupation:

    351311 Chef

    
    351311 CHEF
    
    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

11. At the hearing the Tribunal discussed with the applicant the requirements of the law. The following is a summary of the oral evidence provided at the hearing.

12. The Tribunal explained that the relevant law has been considered by the Court which has determined that the Tribunal is required to consider the entire course rather than individual subjects or a component of the course. It explained that the wording of the criteria does not permit the relationship to be satisfied by asking whether some of the subjects studied are closely related to the nominated skilled occupation, or some part of it. It explained that the Tribunal must consider the qualification as a whole and not undertake the assessment in relation to individual subjects.

13. The Tribunal noted the Diploma of Events course as a whole appears to be aimed at preparing a person to work as an Events Manager. The applicant agreed with this. She indicated that when she finished the course she had the skills to cater for events as a chef.  She did subjects related to her occupation. She believes the qualification gives her the skills to prepare food as well as organise events. The Tribunal asked how the Diploma of Events qualification is relevant to preparing food. She indicated a chef needs different skills for events, such as knowledge about security. The Tribunal noted that the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It explained it may form the view it is not sufficient that the qualification complements the occupation. The applicant acknowledged the Diploma of Events is broader than the role of Chef.

14. The Tribunal explained that it has looked at the ANZSCO description for the nominated occupation, Chef, and the course Diploma of Events. It explained that it may not be satisfied the course is closely related, and that it may form the view the course is more relevant to an Events Manager. It invited the applicant’s comments. She indicated that her idea in the future is to organise events, including the food. Providing the food is her main role but she wants to set up a business organising the whole event.

15. The applicant confirmed that she has a successful skills assessment issued by Trades Recognition Australia dated 16 October 2018 which states that she had the skills necessary to perform the duties of the nominated occupation from 15 September 2011. This is when she completed her Bachelor course in Colombia. The applicant said the reason she did the Diploma of Events was that, when she was trying to get ready to run her own business, she saw the course and considered it to be the right one for her purposes. She was already a qualified chef.

16. Having considered all of the evidence before it the Tribunal accepts that the applicant may, as a chef, prepare food and cater for events. However the Tribunal notes that the ANZSCO description for the nominated occupation focuses on planning and organising the preparation and cooking of food, only part of events management.  The description does not include the broader aspects of events management.  The Tribunal is of the view that when the Diploma of Events is considered in its entirety it is evident it provides skills in events management; including the administrative aspects, customer relations and managing events as a project.  It is of the view this is broader than the role of chef. The Tribunal accepts that the applicant wishes in the future to set up her own events management business and that she will organise all aspects of the events including the food. It accepts that the course will assist her to achieve that goal. However this is not a factor that allows the Tribunal to be satisfied that the course is closely related to the nominated occupation.  The legislation requires that the course needs to be more than complementary or useful. It needs to be closely related. While the term ‘closely related’ is not defined in the Regulations, the decisions of the Full Federal Court in MIBP v Dhillon (2014) 227 FCR 525 and Talha v MIBP [2015] FCAFC 115, and the Federal Court in Constantino v MIBP [2013] FCA 1301 provide guidance. Having regard to these decisions, the Tribunal considers that for a qualification to be ‘closely related’ to an occupation, the relationship between the skills gained in the qualification and the occupation must be more than merely complementary. It is not sufficient for the Tribunal to consider whether the qualification is useful, complements or has a broader relevance to the occupation. The Tribunal acknowledges the applicant’s future plans but notes that the assessment must be against the nominated occupation and not against what the applicant intends to do in the future.

17. The Tribunal also accepts the applicant’s evidence that when making her student visa application she demonstrated that there was a relationship between her qualification and employment as a chef and the Diploma of Events. The Tribunal is of the view in doing this the applicant demonstrated that she was a genuine student, of which there is no doubt. However the Tribunal is not satisfied this demonstrates that the Diploma of Events and the nominated occupation are closely related.

18. The applicant has noted that she undertook in her Bachelor of Gastronomy and Professional Cooking subjects relating to management and marketing, similar to those undertaken in the Diploma of Events. The Tribunal accepts this may be the case. It also accepts that the applicant relied on that course to obtain her positive skills assessment. The Tribunal also notes that course focused on food preparation. However it is mindful that the Bachelor degree was undertaken in Colombia and is not an Australian qualification that the applicant must rely on to meet the Australian study requirement.

19. Overall the Tribunal is not satisfied the applicant has demonstrated that the Diploma of Events is closely related to the applicant’s nominated skilled occupation, Chef.  As the applicant’s qualification Diploma of Events is not closely related to the nominated skilled occupation, the applicant does not meet cl.485.222.

20. As the Diploma of Events is not closely related it is not necessary for the Tribunal to consider whether the applicant’s other qualification, the Diploma of Hospitality, is closely related to the nominated occupation.

21. 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.

Denise Connolly
Member