Ground 1
29 The first ground seeks to reiterate the three matters raised in the FCC before the primary judge. They were, as drafted by Mr Khan:
1. Natural Justice was not given to me as AAT only looked into one aspect, i.e. nominated occupation and did not look into study aspect.
2. AAT just referred ANZSCO for the nominated occupation, but did not refer training guide to see the clear picture.
3. I firmly believe that law is incorrectly applied as the AAT did not see both the aspects.
30 I infer that to the extent error is therefore alleged, it is to the effect that the Tribunal failed to undertake a proper comparison between the Diploma of Management and the occupation of a chef, and the primary judge failed to recognise that error. To paraphrase, that contention is that the Tribunal's conclusion that Mr Khan did not meet the criteria in cl 485.222 was vitiated by error, and the primary judge erred in failing to find to that effect.
31 Before me, Mr Khan submitted that the Diploma of Management would benefit him in his occupation as a chef. He said that he is currently working in the mining industry and his management skills help with time management of shifts, so that (for example) while some people in a team are serving up (say) breakfast, others can be busy preparing for the next day's meals. He said that he is fully trade qualified and has two mining companies that service the mining industry ready to sponsor him on a pathway to immigration. He contended that those opportunities have arisen because he is a successful chef, and that his management skills - for example, managing junior chefs, stock management, client management, rostering and the like - have led to that success, and that the primary judge may have overlooked that connection with his Diploma of Management.
32 Mr Khan made no separate submission that addressed the alleged failure to accord natural justice and I consider that the allegation amounts to no more than another way of describing his overarching complaint that the comparison exercise between the course and the nominated occupation was not properly carried out. Mr Khan did not contend that he was denied the opportunity to put forward evidence as to the nature of the course or his nominated occupation, and he participated in the hearing before the Tribunal. Mr Khan did not provide any 'training guide' to the Tribunal, and there was no suggestion that he sought to put any such guide before the Tribunal or the primary judge. As the primary judge noted, Mr Khan made submissions before his Honour about the purported content of the training guide, but as the training guide was not before the Tribunal, it is unsurprising (indeed inevitable in the circumstances) that the Tribunal did not engage with that purported document and instead focussed on the material before it, being the ANZSCO description of the role of chef (para 15 of its reasons) and Mr Khan's oral evidence. Therefore, I do not consider the allegation about a denial of natural justice had substance before the primary judge, and he was correct to dismiss that argument whilst addressing the more substantive argument that was to be discerned from the submissions, being that relating to the comparison task between the nominated occupation and the Diploma of Management.
33 Taking into account those matters, the various limbs of the arguments before the primary judge that are sought to be encompassed by Mr Khan's first ground may be addressed collectively.
34 There are a number of reasons why it is apparent that the Tribunal properly understood the task required of it in the circumstances of the case, and undertook that task.
35 The Tribunal considered the whole of the nominated occupation and the value of management training, and so much can be seen from its reference to the ANZSCO job description for a chef in the paragraphs extracted above.
36 The Tribunal acknowledged that management skills might be useful, but having regard to the job description it did not consider that management responsibilities were relevantly part of or associated with the occupation of a chef.
37 The Tribunal also took into account matters such as why Mr Khan undertook the Diploma of Management, why he said management skills were useful and his submission that if he wanted to advance beyond being a chef to being a head chef, then management skills would be useful.
38 Therefore it can be seen that the Tribunal took into account Mr Khan's submissions as to the role of management in the occupation of a chef, but the Tribunal assessed all of his submissions against the backdrop of the ANZSCO job description.
39 It may be accepted that Mr Khan has been able to secure employment as a chef because he has certain management skills. It can also be accepted at a general level that management skills may have some value in various roles in the hospitality industry. However, the Tribunal's task was to assess the visa application in the context only of the nominated occupation of 'chef' and that is what it did. In the statutory context, it was obliged to have regard to the objective job description in ANZSCO. It was proper that it did so, rather than undertake the comparison task based on Mr Khan's subjective description of the role of a chef.
40 It should be noted that the Tribunal did not set in its reasons the actual units undertaken by Mr Khan for the Diploma of Management. However, a list of those units was in evidence before it by way of the certificate of completion provided to the Tribunal by Mr Khan. They are described as: manage quality customer service; support the recruitment, selection and induction of staff; develop a workplace learning environment; manage risk; develop workplace policy and procedures for sustainability; ensure a safe workplace; manage personal work priorities and professional development; and ensure team effectiveness.
41 The Tribunal correctly identified that Mr Khan had undertaken the Diploma of Management. It accepted (at para 16) that Mr Khan would have obtained management skills as part of those studies. The Tribunal referred to the Diploma on a number of occasions in its reasons, and was aware that it involved different units (para 20). I infer that that the Tribunal took into account the content of the course that was in evidence before it, although the units were not set out in full in the reasons. It is not necessary for reasons to expressly refer to all evidence and it is apparent that the content of the course was otherwise identified and addressed more generally by the Tribunal: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (French, Sackville and Hely JJ) at [46]-[47]. In particular this approach is apparent form the fact that the Tribunal recorded the description of the management skills that Mr Khan asserted he had been taught through the course (para 11) and considered those in the contest of the ANZSCO job description. Those matters viewed together reflect the Tribunal's consideration of both the course of study undertaken as a whole, and (contrary to Mr Khan's submission) the job description as a whole. As I noted above, it was not necessary for the Tribunal to descend into an analysis of particular units in order to carry out its task.
42 In my view the Tribunal did what it was required to do, having regard to the authorities such as Singh and Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157; (2014) 227 FCR 525 (Allsop CJ, Murphy and Pagone JJ) that have been referred to above.
43 A similar outcome was reached by the Tribunal, and affirmed on review and by the decision of Derrington J on appeal, in Singh. Mr Singh had undertaken an Advanced Diploma of Marketing, but it was concluded that the tasks involved in his nominated occupation of chef did not directly relate to the course of study undertaken. Although the facts are not identical, the approach of the Tribunal in this case was consistent with that approved in Singh.
44 The primary judge reached the correct conclusion. No jurisdictional error on the part of the Tribunal is disclosed. As the primary judge noted, it might be that different people might reach a different view as to the closeness of any relationship between the Diploma of Management undertaken by Mr Khan and the nominated occupation, but the conclusion of the Tribunal in this case was properly open to it. No error on the part of the primary judge is established.