VAN DER ZWAN (Migration)

[2024] AATA 532

VAN DER ZWAN (Migration) [2024] AATA 532 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sara Elyse VAN DER ZWAN

REPRESENTATIVE:  Mr Glenn Wellburn (MARN: 0850908)

CASE NUMBER:  2300662

HOME AFFAIRS REFERENCE(S):          BCC2022/5471977

MEMBER:Ian Berry

DATE:8 March 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.231 of Schedule 2 to the Regulations.

Statement made on 08 March 2024 at 10:51am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Food Technologist – 2 years related work experience – employment as a store manager and a waitress – further evidence of relevant experience and internship – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.231

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 13 January 2023 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 December 2022. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Food Technologist ANZSCO occupation code 234212.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.231 of Schedule 2 to the Regulations because the applicant’s employment as a store manager and as a waitress do not count toward the skill level of food technologist.

4. The hearing was scheduled for 13 March 2024; however, the applicant requested the Tribunal to consider her application on the papers.

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

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant has completed at least 2 years employment as a food technologist as required by cl 482.231.

   Requirement to have worked for at least 2 years

8. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

   What is a food technologist, tasks and qualifications as in ANZSCO?

9. The structure of ANZSCO has five hierarchical levels - major group, sub-major group, minor group, unit group and occupation. The categories at the most detailed level of the classification are termed 'occupations'. These are grouped together to form 'unit groups', which in turn are grouped into 'minor groups’. Minor groups are aggregated to form 'sub-major groups' which in turn are aggregated at the highest level to form 'major groups'.

10. The occupations within each unit group are essentially in alphabetical order, with the exception of 'general' occupations which are listed first, and residual 'not elsewhere classified' (nec) categories which are listed last. This ordering is more expedient than necessary and it is not considered that the addition of any new occupations, which may disrupt this ordering, will affect the usefulness of the classification.

11. The categories at the most detailed level of the ANZSCO structure are called 'occupations'. An 'occupation' is defined as a set of jobs that require the performance of similar or identical sets of tasks. As it is rare for two actual jobs to have identical sets of tasks, in practical terms, an 'occupation' is a set of jobs whose main tasks are characterised by a high degree of similarity.

12. The similarity of tasks is defined in ANZSCO as a function of the level and specialisation of skill required to perform those tasks. Skill is defined as the ability to competently perform the tasks associated with an occupation.

13. ANZSCO is primarily a statistical classification designed to aggregate and organise data collected about jobs or individuals. The classification definitions are based on the skill level and specialisation. The definitions and skill level statements apply to the occupation and not persons working in the occupation. The allocation of a particular occupation to a particular skill level should be seen as indicative only and should not be used prescriptively.

14. In ANZSCO, skill level is defined as a function of the range and complexity of the set of tasks performed in a particular occupation. Skill level is measured operationally by:

    • the level or amount of formal education and training

    • the amount of previous experience in a related occupation, and

    • the amount of on-the-job training required to competently perform the set of tasks required for that occupation.

15. In general, the greater the range and complexity of the set of tasks involved, the greater the amount of formal education and training, previous experience and on-the-job training required to competently perform the set of tasks for that occupation.

16. Formal education and training refer to the level and amount of education and training required for competent performance of the tasks required in an occupation. It is measured in terms of educational qualifications as set out in the Australian Qualifications Framework (AQF).

17. Previous experience refers to the time spent gaining work experience in related occupations or activities required for the competent performance of the tasks in an occupation. It is measured in months or years.

18. On-the-job training refers to the amount of training required after commencing work in an occupation for competent performance of the tasks in that occupation. It is measured in months or years and may be undertaken at the same time as formal training.

19. ANZSCO does not measure the skill level of an individual, rather it refers to the level of skill that is typically required to competently perform the tasks of a particular occupation. Skill level is an attribute of occupations, not of individuals in the labour force or of particular jobs. It is irrelevant whether a particular individual working in a job in a particular occupation has a certain amount of training or a particular level of competence or not.

20. For example, a person who spreads mortar and lays bricks for a living has the occupation Bricklayer, regardless of whether he or she is an exceptionally competent bricklayer with many years of experience and post-trade qualifications, or an inexperienced bricklayer with no formal qualifications and a low level of competence. The skill level of the occupation Bricklayer is determined based on that typically required for competent performance.

21. At the occupation level a food technologist (also has the alternative title food scientist), develops new and improved existing food products, and sets standards for producing, packaging and marketing food. The skill level required is 1. That skill level is commensurate with a Bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

22. The tasks included for occupations within Unit Group 2342 (which includes the food technologist occupation) include the following:

    a.conducting experiments and tests to identify the chemical composition and reactive properties of natural substances and processed materials

    b.analysing and conducting research to develop theories, techniques and processes, and testing the reliability of outcomes under different conditions

    c.developing practical applications of experimental and research findings

    d.testing food products for flavour, colour, taste, texture and nutritional content

    e.advising on preserving, processing, packaging, storing and delivering foods

    f.developing quality control procedures and safety standards for the manufacture of food products

    g.examining grape samples to assess ripeness, sugar and acid content, and determining suitability for processing

    h.coordinating winemaking processes, directing workers in testing and crushing grapes, fermenting juices, and fortifying, clarifying, maturing and finishing wines

    i.blending wines according to formulae and knowledge of winemaking techniques

23. The evidence of the work experience presented on behalf of the applicant presented in her visa application, includes the following:

    ·Insight manager a full-time position with Now New Next with that employment in the Netherlands, from 1 September 2018 – 1 January 2019. The applicant describes her duties as ‘during this internship, focused on food and packaging innovations. Learned to make high-quality Power Point presentations and also got to know the food industry by’. The applicant consider this position to be related to the nominated occupation.

    ·Bachelor Thesis Internship performed full-time with the employer Greendish , between 1 February 2019 – 1 June 2019. The description of the duties were ‘thesis for the Nutrition & Dietetics program was a follow-up study. The study investigated to which extent the previously issued an advisory report has helped make the food supply healthier among Rotterdam food providers, and how this food supply can be improved or maintained in the future.’ The applicant considered that this occupation was related to the nominated position.

    ·The applicant’s current employment situation is as a Food Technologist for full-time employment with Morlife which employment commenced on 7 July 2022 and continues today. The applicant claims that her nominated position is related to this employment.

24. The qualifications put forward by the applicant supporting her claim to be a food technologist is:

    ·Amsterdam University of Applied Sciences Diploma supplement describing the diploma as a supplement model developed by the European Commission, Council of Europe and UNESCO/CPES. The purpose of the supplement was to provide sufficient independent data to improve the international ‘transparency’ and fair academic and professional recognition of qualifications (diplomas, degrees, certificates et cetera).[1] Date of completion 28 June 2019.

    ·Master of Science Health Food Innovation Management attained from the Maastricht University and dated 20 October 1995 – 31 July 2022.

    ·HBO Bachelor Voeding en Dietetiek (Nutrition and dietetics) dated 28 June 2019 (it was untranslated and may be identical to the qualification first mentioned).

    [1] D 40. Further information accompanying the Diploma is the level of qualification at the level of bachelor's degree; University of applied sciences; 1st cycle national qualification framework for higher education; Level 6 EQ F for LRL.

25. A reference from Greendish dated 16 October 2022 describes the applicant in the position of Project Manager Nutrition provides a glowing reference as to her ability. Also, a letter of recommendation from Now New Next and confirms the referee working with the applicant for 5 months and bestowing her qualities in the position with that organisation.[2]

    [2] D 63 undated reference given by Ariane van Mancius.

26. the applicant’s current employer Morlife provides a background of her current employer based on the Gold Coast in manufacturing functional health foods. Established in 2000. Currently employing over 50 staff recording annual sales of $10 million detaching an organisation chart. The letter provides the reason for employing the applicant by stating that it has a research division who is headed by an Australian citizen as well as a research coordinator was also an Australian citizen and a full-time nutritionist. Refers to a long term vacancy in the research division for a food scientist and a food technologist and having been able to fulfil those positions in the Australian labour market. This reference refers to the business as being more than just health supplements as well as its export markets.

27. A submission was received immediately before the anticipated hearing date setting out formation supporting the visa application. A further letter of explanation from the applicant’s employer Morlife dated 29 February 2024 sets out its activities to the current time. It confirms the applicant having worked with her current employer since 6 January 2022 confirming initially commencing work as an intern while completing her Masters studies through Maastricht University and Griffith University and then transitioning into a full-time role on 6 July 2022.

28. The Tribunal is satisfied and finds the applicant having completed at least 2 years experience in the position of a Food Technologist. The Tribunal also finds that the applicant has and is undertaking the significant majority of tasks in her role as a Food Technologist.

29. For these reasons, cl 482.231 is met.

30. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482. 231 of Schedule 2 to the Regulations;

    Ian Berry
    Member