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[2020] FCA 203
Federal Court of Australia
2020-02-27
Derrington J
Original judgment source is linked above.
Introduction 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCC) of 5 September 2019, which dismissed an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal had, on 19 December 2018, affirmed a decision of a delegate of the Minister for Immigration and Border Protection made on 16 August 2017, to refuse the appellant a Skilled (Provisional) (Class VC) Visa (the skilled visa).
Background 2 The appellant is a citizen of India, although he has apparently resided in Australia since 18 June 2009, well before applying for the skilled visa which has led to these proceedings. The material shows that he commenced a Certificate IV in Commercial Cookery at the Australian Institute of Technology and Management Pty Ltd on 11 August 2014. That was completed on 8 February 2016. 3 He commenced a further course on 3 October 2016, being an Advanced Diploma of Marketing with the New England Institute of Technology Pty Ltd. That diploma course was completed on 30 April 2017. 4 On 29 June 2017, the appellant applied for the skilled visa and declared his nominated skilled occupation as that of "chef". 5 On 16 August 2017, the Department advised the appellant by letter that his application for the skilled visa had been refused on the basis that he did not meet the requirements of reg 485.222 of the Migration Regulations 1994 (Cth) (the Regulations). The basis of the non-compliance was that the qualification relied upon by him, being the Advanced Diploma in Marketing, was regarded as having no close connection to his nominated skilled occupation as chef. 6 On 30 August 2017, the appellant sought review of the delegate's decision from the Tribunal. 7 A hearing before the Tribunal occurred on 30 November 2018 at which the appellant attended and in which he had the assistance of a representative. 8 On 20 December 2018, the Tribunal wrote to the appellant advising him that it had affirmed the decision under review. In particular, it had concluded that the appellant's Advanced Diploma in Marketing was not "closely related" to his occupation as a chef. 9 It held at [28] and [29]: 28. The above are a more generalised set of tasks some of which directly refer to the occupation of chef. However it is not so broad as to closely relate the unit courses, as outlined by the applicant, with his Advanced Diploma of Marketing. At best, the Advanced Diploma of Marketing is complimentary but not closely related to the occupation of chef. 29. As an observation, the 'marketing' qualification is generic in nature; it applies to almost all qualifications of a more specific kind. For instance, marketing would assist professions from 'Architects' to 'Quantity Surveyors' as would a diploma of leadership and management and similar styled diplomas. 10 On 17 January 2019, the appellant applied to the FCC seeking review of the Tribunal's decision. Central to that application was the assertion that the Tribunal had adopted an unduly narrow approach to assessing whether the marketing qualification was closely related to the occupation of chef. 11 On 5 September 2019, the FCC handed down its decision dismissing the application for review. The basis of that decision was that no jurisdictional error on the part of the Tribunal had been demonstrated. 12 An appeal was lodged to this Court on 18 September 2019. The grounds of the appeal are: 1. The Federal Judge failed to consider that the Tribunal had no jurisdiction because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 2. The learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT. 13 The appellant appeared in this Court representing himself with the assistance of an interpreter. Although directions were made for the filing of outlines of submissions, he neglected to do so. He was unable to particularise the grounds of appeal which appeared in the notice of appeal. His main concern was that he believed that his Diploma of Marketing would have been of assistance to him in opening a restaurant and that ought to have been considered by the Tribunal. 14 The Minister, in his written submissions, submitted that the appellant's grounds of appeal lacked particularity, which was argued to be a basis in itself for dismissal: see, for example, WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. The Minister further submitted that, in any event, the FCC properly and fully considered the grounds as raised by the appellant, as well as whether the appellant satisfied the relevant criteria more broadly.
Consideration 15 Pursuant to s 65 of the Migration Act 1958 (Cth), the appellant would be entitled to the grant of a visa if the Minister (or his delegate) was satisfied that the appellant met the criteria for its grant. Those criteria are set out in Part 485 of Sch 2 of the Regulations. 16 Relevantly reg 485.221 provides: The applicant satisfied the Australian study requirement in the period of 6 months immediately before the day the application was made. 17 Regulation 485.222 further provides: Each degree, diploma or trade qualification used to satisfy the Australian study requirement is closely related to the applicant's nominated skilled occupation. 18 The expression "Australian study requirement" is defined in reg 1.15F of the Regulations as follows: 1.15F Australian study requirement (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. Note: The academic requirements for the award of a degree, diploma or trade qualification do not include the formal conferral of the degree, diploma or trade qualification. Therefore, a person can complete a degree, diploma or trade qualification, for subregulation (2), before the award is formally conferred. degree has the meaning given in subregulation 2.26AC(6). diploma has the meaning given in subregulation 2.26AC(6). trade qualification has the meaning given in subregulation 2.26AC(6). 19 Relevantly, the appellant must have satisfied the Australian study requirement in the period of six months immediately before the day on which the application was made. The appellant applied for the skilled visa on 29 June 2017. Therefore, to satisfy the Australian study requirement, the appellant had to have completed a qualifying course of study in the period after 28 December 2016. As mentioned, the only course of study completed by the appellant after that date was the Advanced Diploma of Marketing, which he finished on 30 April 2017. 20 The Tribunal found that cl 485.221 was satisfied, because the appellant had satisfied the Australian study requirement in the period of six months immediately before the application was made. There appears to be no dispute about that. 21 The remaining and central issue is whether the Advanced Diploma of Marketing satisfies reg 485.222 on the basis that it is "closely related" to the appellant's nominated skilled occupation of chef. 22 As best as can be ascertained from the appellant's notice of appeal and his oral submissions to this Court, his concern is that the delegate's state of satisfaction that he did not meet the criteria in reg 485.222 was vitiated by error. It is not immediately apparent why he says that error occurred. It may well be that, as appears from the argument agitated to the FCC, the point sought to be made is that the Tribunal failed to undertake a proper comparison between the marketing degree and the occupation of a chef. This appeared to be the basis of the appellant's oral submission that the marketing degree would benefit him as a chef in opening a new restaurant. 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]. 26 On appeal, the appellant did not suggest that any of the above principles, which were recited by the Tribunal, were incorrect. 27 In its reasons, the Tribunal identified the ANZSCO summary of the occupation of a chef in the following terms: • Chefs plan and organise the preparation and cooking of food in dining and catering establishments. • 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). • 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; • The occupation of chef also has specialisations involved in planning and organising the preparation of cooking of food in a dining or catering establishment which is a skill level II. ANZSCO details some of those specialties. 28 In his submissions to the Tribunal, the appellant identified the following units which he studied in his Diploma of Marketing and which the Tribunal accepted were accurate: Plan and establish compliance management systems. Develop and implement diversity policy. Conduct a marketing audit. Manage the marketing process. Manage market research. Develop organisational marketing objectives. Develop a marketing plan. Develop, implement and maintain WHS Management Systems. 29 The appellant had submitted there was a close relationship between the management systems and process which he studied and the tasks of explaining and enforcing hygiene regulations, as well as planning menus and estimating food and labour costs and ordering food supplies, as appears in the tasks of a chef. 30 In general terms it was submitted that the management skills concerned with compliance systems were directly relevant to the obligations of a chef, as well as workplace health and safety management systems. Before this Court the appellant submitted that a marketing degree was useful to anyone, including a chef, seeking to establish a new business.
Reasoning 31 The Tribunal's reasons are identified above. Consistently with the requirements set out in the authorities above, the Tribunal informed itself of the nature of the skilled occupation of chef, and compared that with the unit courses of the appellant's Advanced Diploma of Marketing. It is difficult to detect any error in the observation that some of the tasks identified in the ANZSCO definition of "chef" are broad and do not directly relate to the unit courses outlined by the appellant. The marketing course was complementary to, but not closely related to, that of the occupation of a chef. In this sense the Tribunal directly addressed the issue which is the primary concern of the appellant and, in doing so, applied the correct test to ascertain whether the course and the appellant's occupation as a chef were closely related. There was no error in the manner in which it made that comparison. It is further difficult to detect any error in the observation that the marketing qualification was generic, in that it would apply to nearly all occupations. Indeed this appeared to be acknowledged by the appellant before this Court. As the authorities set out above make clear, the fact that the course of study is complementary to the nominated profession is insufficient and the Tribunal made no error in concluding as such. 32 Indeed, the Tribunal's decision in the present case is analogous to that under consideration in Dhillon. In that case the Tribunal found that Mr Dhillon had not satisfied the requirement under reg 886.211 because the business management qualification he obtained was not "closely related" to his nominated skilled occupation of pastry cook. That decision was affirmed in the FCC and the Federal Court. 33 In the circumstances the appellant has not identified any error in the reasons of the Tribunal which the FCC had failed to detect. The finding that the tasks of a chef were not closely related to the course work undertaken in the Diploma of Marketing was open on the evidence which the Tribunal had before it. Its findings of fact were supported by probative evidence.
Conclusion 34 The appellant has failed to demonstrate the existence of any error in the findings by the Tribunal which might have vitiated the conclusion that it was not satisfied that he met the criteria for the grant of the skilled visa. It follows that the conclusion of the FCC has not been shown to be in error. 35 The appeal should be dismissed and the appellant should pay the respondents' costs of the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington.
Singh
Minister for Home Affairs