Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Relevant criteria 7 Clause 485.21 contains criteria common to any application for a subclass 485 visa, and is not in issue in this application. 8 Clause 485.22, at the relevant time, provided as follows: Criteria for Graduate Work stream Note: These criteria are only for applicants seeking to satisfy the primary criteria for a Subclass 485 visa in the Graduate Work stream. 485.221 The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made. 485.222 Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation. 485.223 When the application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority. 485.224 (1) The skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation. (1A) If the assessment is expressed to be valid for a particular period, that period has not ended. (2) If the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course. 9 I have emphasised in the above extract two phrases that are relevantly defined elsewhere in the regulations. As becomes apparent, the real issues raised by the facts of Mr Khan's visa application are: first, whether he satisfied the Australian study requirement in the six months preceding his application (cl 485.221); and second, whether the degree, diploma or trade qualification used to satisfy that requirement was closely related to his nominated skilled occupation (cl 485.222).

Australian study requirement 10 The phrase 'Australian study requirement' is defined at r 1.15F of the Migration Regulations as follows: (1) 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: (a) that are registered courses; and (b) that were completed in a total of at least 16 calendar months; and (c) that were completed as a result of a total of at least 2 academic years study; and (d) for which all instruction was conducted in English; and (e) that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study. … (2) In this regulation: completed, in relation to a degree, diploma or trade qualification, means having met the academic requirements for its award. …

Nominated skilled occupation 11 The phrase 'nominated skilled occupation' is to be read having regard to cl 1229(3) of Schedule 1 of the Migration Regulations and r 1.15I of the Migration Regulations. 12 Clause 1229 applies generally to applications for Skilled (Provisional) (Class VC) visas. The graduate visa sought by Mr Khan falls within that category. Relevantly, cl 1229(3)(k) provides for nomination of a skilled occupation, stating: (k) An applicant seeking to satisfy the primary criteria for the grant of a Subclass 485 (Temporary Graduate) visa in the Graduate Work stream must nominate a skilled occupation for the applicant that is specified by the Minister in an instrument in writing for this paragraph. 13 'Skilled occupation' is defined at r 1.15I of the Migration Regulations: Skilled occupation (1) A skilled occupation, in relation to a person, means an occupation of a kind: (a) that is specified by the Minister in an instrument in writing to be a skilled occupation; and (b) if a number of points are specified in the instrument as being available - for which the number of points are available; and (c) that is applicable to the person in accordance with the specification of the occupation. 14 I have emphasised the phrase 'instrument in writing' in Schedule 1 cl 1229(3)(k) and r 1.15I(1)(a) of the Migration Regulations. The 'instrument in writing' referred to in those provisions and relevant to Mr Khan's application is the 'Specification of Occupations, a Person or Body, a Country or Countries 2016/059' (Instrument) made under the Migration Regulations. The regulations empower the Minister to revoke and issue such legislative instruments. 15 By paragraph 4 of the Instrument, the (then) Minister for Immigration and Border Protection, acting under the regulations, relevantly specified that: … in relation to a person who applies on or after 1 July 2016 for a Subclass 485 Temporary Graduate visa: a) each occupation listed in Column A of Schedule 1 to this Instrument is to be a skilled occupation that is applicable to the person, for the purposes of paragraph 1.15I(1)(a) of the Regulations; and … d) each skilled occupation in Column A of Schedule 1 to this Instrument that is applicable to the person, for the purposes of paragraph 1229(3)(k) of Schedule 1 to the Regulations … 16 That convoluted pathway leads to Schedule 1 Column A of the Instrument. As will be seen, Mr Khan's nominated occupation is 'chef'. The position of 'chef' is a skilled occupation listed in Schedule 1 Column A against the ANZSCO code 351311. 17 The Full Court explained the nature of ANZSCO codes in Talha v Minister for Immigration and Border Protection [2015] FCAFC 115; (2015) 235 FCR 100 at [17] (Griffiths, Mortimer and Beach JJ). In summary, 'ANZSCO' is an acronym for the 'Australian and New Zealand Standard Classification of Occupations' and is produced by the Australian Bureau of Statistics. The ANZSCO contains a listing of all of the occupations in the Australian and New Zealand job markets (including the self-employed). Each occupation is identified by means of a six digit code. 18 The ANZSCO publication in relation to the nominated occupation of a chef was not before the Court, but the Tribunal reasons include an extract (at para 15 of its reasons) (also cited by the primary judge) and it was not contended that the extract was inaccurate. The extract is recorded as follows: 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: • planning menus, estimating food and labour costs, and ordering food supplies • monitoring quality of dishes at all stages of preparation and presentation • discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff • demonstrating techniques and advising on cooking procedures • preparing and cooking food • explaining and enforcing hygiene regulations • may select and train staff • may freeze and preserve foods Occupation: 351311 Chef 19 Once the nature of the studies undertaken by an applicant and the nominated skilled occupation are identified, it remains necessary to consider whether the relevant qualification is 'closely related' to the skilled occupation.

Meaning of 'closely related' - authorities 20 The phrase 'closely related' has been considered in a number of cases, usefully collected by Derrington J in Singh v Minister for Home Affairs [2020] FCA 203: [23] As is apparent from the Tribunal's reasons, it considered the trio of relevant cases in this Court on the meaning of 'closely related': Minister for Immigration and Border Protection v Dhillon & Anor (2014) 227 FCR 525 (Dhillon); Talha v Minister for Immigration and Border Protection & Anor (2015) 235 FCR 100 at [53] and Constantino v Minister for Immigration and Border Protection & Anor (2013) 139 ALD 567 at [26]. [24] The principles to be derived from those three cases are not in issue. They are: (a) The words 'closely related' require a consideration of the connection between two things, being the relevant course of study and the occupation the subject of the visa application. (b) The comparison does not require a finding of an exact correspondence between the course of study and the occupation but 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. (c) A conclusion that the qualification and the occupation are 'closely related' requires more than a conclusion that the two things are complementary, or that the qualification might be applied or utilised in the course of the nominated profession. [25] As the Tribunal noted, the nature of the nominated occupation is to be determined by reference to the 'Australian and New Zealand Standard Classification of Occupations' (ANZSCO), which needs to be read as a whole and with a view to identifying and applying information which is relevant to an understanding of the whole of the nominated occupation. In considering the comparison between the course of study and the occupation, it is not appropriate to rely upon the applicant's view or description of what the occupation entails or the applicant's view of the degree of any relevant connection: Chawdhury v Minister for Immigration & Anor [2010] FMCA 275 at [12]; Kabir v Minister for Immigration and Citizenship & Anor (2010) 244 FLR 25 at [70]; Shafiuzzaman v Minister for Immigration & Anor [2011] FMCA 874 at [58]. 21 It can be seen that Derrington J referred to the statement by Jacobson J in Constantino v Minister for Immigration and Border Protection [2013] FCA 1301 to the effect that the whole of the qualification is to be compared with the whole of the occupation. I would add, by reference to Constantino at [27], that descending into an analysis of some of the subjects undertaken in order to find a relationship in part is not required, if the comparison undertaken of the two 'wholes' indicates the test of close relationship would not be satisfied in any event. This has some relevance to one of Mr Khan's submissions, touched on further below.

Mr Khan's application 22 In his visa application of 29 September 2016, Mr Khan indicated that his nominated occupation was 'Chef'. He provided a letter dated 24 November 2016 headed 'TRA Provisional Skills Assessment Application Result' which indicated that his Provisional Skills Assessment application had been assessed as 'successful for the occupation of Chef - 351311'. 23 Mr Khan identified in his application that he had completed a number of qualifications, including certificates in hospitality (commercial cookery). The only qualification within the requisite six month period was a Diploma of Management that he had undertaken between September 2015 and September 2016. It is not in issue that this is the only one of his qualifications relevant for the purpose of the cl 485.222 criterion. 24 On 13 January 2017 the delegate refused to grant Mr Khan a 485 visa on the basis that he did not meet cl 485.222 of the Migration Regulations. The basis of his non-compliance was that the qualification relied upon by him, being the Diploma of Management, was not closely related to the nominated occupation of 'chef'.

The Tribunal's decision 25 The Tribunal conducted a hearing, attended by Mr Khan. 26 The relevant Tribunal reasons have been included in the FCC reasons (at [16]-[20]) and it is not necessary to repeat those reasons in detail. It is apparent from the reasons that the Tribunal understood the operation of the statutory regime to which I have referred, and properly identified the issue being whether the Diploma of Management was closely related to the occupation of 'chef'. So much is apparent from the following extracts: 11. In oral evidence to the Tribunal the applicant states that being a chef is not only about cooking but also about managing the entire kitchen. The applicant states that he needs management skills so that he can supervise people working under him and ensure that everyone adheres to company policies. He also needs to manage the human resource aspects, including visa issues if he hires staff from overseas, hiring and firing. He needs to supervise food safety and OH&S. The applicant states that as a head chef, he would be in charge of these responsibilities. The applicant states that as a chef, he must have a good relationship with food supplies and run the kitchen effectively. He needs to manage the work and ensure that everything runs efficiently. The applicant states that the management course teaches him how to manage himself and manage those working under him. He also needs to maintain appropriate stock levels and manage the financial aspects of kitchen operations. The applicant told the Tribunal that he presently works as a commis chef but as he 'goes up the ladder', he would have additional responsibilities and his job is not just about cooking. The applicant states that junior chefs may not have management responsibilities but the more senior the position, the more management responsibilities he would have. He intends to become a head chef and would be responsible for managing the kitchen and for that he needs management skills. 12. The Tribunal notes, however, that the applicant has nominated the occupation of a chef, not that of a head chef or a restaurant manager. While the applicant may well wish to have a more senior role in the future, the Tribunal must consider the applicant's nominated occupation and not the occupation he plans to engage in in the future. As Smith FM stated in Pasula at [23]: … the relevance of a qualification for the purposes of Sch.2 cl.880.215 of the regulations must relate to the nominated occupation itself, and not to some different occupational classification which might later be pursued by the visa applicant, and which would then involve use of the two qualifications. If PAM3 suggested otherwise, then it would be giving advice flawed by error of law. 13. Although the Court in that case considered a different legislative provision, the same reasoning applies in relation to the clause in question. 14. The Tribunal has considered the applicant's evidence about the nature of the tasks performed by a chef and the applicant's claim that the more senior chefs are primarily involved in management rather than hands-on cooking. The Tribunal is not prepared to accept that evidence. In the Tribunal's view, the tasks outlined by the applicant are not consistent with the description for the nominated occupation set out in ANZSCO. 15. ANZSCO provides the following in relation to the nominated occupation of a chef. 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: • planning menus, estimating food and labour costs, and ordering food supplies • monitoring quality of dishes at all stages of preparation and presentation • discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff • demonstrating techniques and advising on cooking procedures • preparing and cooking food • explaining and enforcing hygiene regulations • may select and train staff • may freeze and preserve foods Occupation: 351311 Chef … 18. The Tribunal also relies on the reasoning in Manik v MIAC [2012] FMCA 149 and Talha v MIBP [2015] FCAFC 115 which emphasize the significance of ANZSCO in determining the close relationship. The Tribunal thus prefers the description for the occupation set out in ANZSCO rather than the applicant's own description of what he does in the course of his employment. Importantly, the Tribunal must consider the objective standard for the occupation and not what the applicant himself does, or intends to do, in his role. While the Tribunal accepts the applicant's evidence that the management qualification will provide him with job opportunities, including those in Bangladesh, the issue before the Tribunal is the close relationship with the nominated occupation and not the applicant's future intention and job aspirations.

The FCC 27 The three grounds relied upon by Mr Khan before the FCC are listed below. In detailed reasons all grounds were dismissed by the primary judge. The basis of that decision was that no jurisdictional error on the part of the Tribunal had been demonstrated.

Mr Khan's appeal 28 Mr Khan's notice of appeal contains two grounds: 1. The Primary Judge was in error in failing to uphold the review grounds raised by the Appellant; 2. The Tribunal failed to consider that the occupation 'Head Chef' fits within the Australian and New Zealand Standard Classification of Occupations (ANZSCO) occupation of 'Chef - 351311', and that people working in this occupation may require strong management skills to run a kitchen.

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.

Ground 2 45 This ground asserts error by the Tribunal in failing to consider whether the role of head chef, fits within the occupation of chef, and whether the course of study undertaken may have been 'closely related' to that role. 46 The Minister correctly contended that this is a new argument, not raised before the FCC, and opposed leave being granted to raise this second ground. 47 The principles that apply in such circumstances are well known. For present purposes it is sufficient to refer to the statement of the principles in Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34]-[36] (Katzmann, Banks-Smith and Rofe JJ). In summary, leave to argue a point not before the primary judge should only be granted if it is expedient in the interests of justice to do so. As stated in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (Kiefel, Weinberg and Stone JJ): [48] The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. 48 A similar claim to that encompassed by proposed ground 2 was in fact considered by the Tribunal. For example, as extracted above, the Tribunal noted that Mr Khan nominated the occupation of a chef, not that of a head chef or a restaurant manager, and stated that it 'must consider the applicant's nominated occupation and not an occupation he plans to engage in in the future' (para 12 of its reasons). 49 The Tribunal's approach to any submission that centred on a different occupation that might be undertaken in the future was correct. The statutory regime required Mr Khan to nominate an occupation and he did so. 50 Mr Khan did not challenge this line of reasoning before the FCC. No explanation for failing to do so has been proffered, although I acknowledge that Mr Khan is self-represented. Where a ground has some merit it is often appropriate to extend some latitude to a self-represented litigant, even where no explanation is provided by an appellant. 51 But that is not this case. In this case the new ground clearly lacks merit, and accordingly I decline to grant leave for it to be advanced. 52 Mr Khan has not provided any evidence of any description of a role of 'head chef' or any evidence of any stipulation that persons working in that role may require strong management skills. 53 Even assuming that some management skills might be complementary or assist a person who is in the role of 'head chef', it is clear from the authorities that such a connection is insufficient. A decision maker would therefore have no proper basis upon which to find that the 'closely related' test would be satisfied, particularly where the job description of 'head chef' and whether or not it is a separate occupation for the purpose of nomination or referred to in the ANZSCO is unknown.

Conclusion 54 Mr Khan has failed to establish any error in the findings by or reasoning of the Tribunal which might have vitiated the conclusion that it was not satisfied that he met the criteria for the grant of the Temporary Graduate visa. It follows that the conclusion of the FCC has not been shown to be in error, and the appeal is dismissed. 55 For completeness I note that Mr Khans' reference at the hearing of the appeal to various sponsorship offers now available to him suggests that there may be other pathways available to Mr Khan in seeking a visa. Whether or not he might succeed in that regard is not relevant to this appeal, which relates only to his original application for the 485 visa. 56 Mr Khan should pay the costs of the first respondent, to be assessed on a lump sum basis by a registrar of this Court, if not agreed. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.