本科或研究生课程配三级厨师，糕点师，美发师及移民课程 是否为Qualifications ‘relevant to’ a nominated occupation2 ^" R8 r% g( S6 E" Y/ |

3 z. C9 m$ V# n[ 本帖最后由 hanson.sun 于 2008-2-23 12:56 编辑 ]

不少申请人在国内选择留学澳大利亚课程时，没有考虑到选择哪个科目学校有利于获得高分，利于日后申请澳大利亚移民。导致一些申请人读完3年本科或1-2年研究生课程后，只能获得40或50分的职业提名，不能凑满120分申请之前的880类境内独立技术移民或现在的885类境内独立技术移民签证。  M. v+ U1 U' Y% Y! L6 W# c

6 L8 N* U' w2 j, o% Z4 i- L为了弥补这个缺陷，很多人申请了三级的移民课程，为的是能够通过1年的学习，并积累900小时工作经验，能够通过TRA的职业评估，获得60分的职业加分。常见的三级课程有厨师，糕点师，美发师。这样的做法是否可行？是否能够满足移民局对于课程间是否RELEVANT的规定？我们就这个问题进行一些说明，希望大家能够讨论一下，并鼓励现身说法，既能帮助自己又能帮助更多人少走弯路。
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/ O$ f. k7 h0 g谢谢！信息会不断更新的。加油！
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[ 本帖最后由 hanson.sun 于 2008-2-23 13:09 编辑 ]

It is arguable whether a business course is relevant to the nominated occupation of cook, but it may be less arguable for post 31 August 2007 applications:
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* x* q0 `- i) e5 J3 G. I; [- _Search of MRT decisions will result in decisions going either way:
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This case loses the "relevancy" argument
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$ t0 R8 z) L1 H* U$ E- fhttp://www.austlii.edu.au/au/cases/cth/MRTA/2007/642.html2 }% [, p, u" S& G+ q# Y

" _6 I8 D+ H& O" aThis case wins the "relevancy" argument5 B& b+ v9 e, m+ h
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http://www.austlii.edu.au/au/cases/cth/MRTA/2007/668.html
& k, a. u' R7 h( d, Z- u& p5 {5 x4 o% z( c+ N
All good background stuff except that new permanent visa require both qualifications to now be "closely related" to the nominated occupation.
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+ L& R8 w  y, H) k9 KAlthough the PAM for the permanent on-shore student visas is not yet out, I think we know enough about "Closely Related" to know it will be a stiffer test than "Relevant to".
9 ]1 O* |8 t1 i( J9 w% L! @1 Q3 ]
+ Z9 s- Q, m  K- |Pity those applicants who started out on their 2 years with the confidence that they could meet the "relevant" criterion but now have to meet the "closely related" criterion.- T) G6 `" A( X+ l& Y, q' F

, G1 t$ |3 s3 k1 ~( X[ 本帖最后由 hanson.sun 于 2008-2-23 13:11 编辑 ]

C3 Food Processing (Retail Baking) – Cake and Pastry;
( z! B) |' ?9 |/ ~2 PPostgraduate Diploma in Business (Electronic Commerce)
5 X: K6 }; s, p6 n' \; b. ZMaster of Commerce (Electronic Business) 1 @0 A* F, s5 k' U8 H  j

5 x! ]6 p. [5 h申请880境内独立技术移民，先被澳大利亚移民局拒签，后赢得MRT仲裁机构审理，申请人最终获得SUBCLASS 880 PR签证' A" X! S9 `# {. Q( |9 z
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# x6 {4 @+ b0 P071743266 [2007] MRTA 668 (22 November 2007)
1 N8 U' n- H  n% V: ~( u
6 n3 ?0 e) @7 j% M- ]9 bDECISION RECORD  }6 u+ ^1 P4 d: q) y* m
APPLICANT: Miss Weihong Zhao. {; K! H6 X7 H: A* l% n
MRT CASE NUMBER: 071743266
; b3 l. q2 D' U" u0 k" e- o/ J9 DDIAC REFERENCE(S): CLF2005/60177 & X) }- q2 |: ^( s% @! L! I
TRIBUNAL MEMBER: Susan Pinto6 M7 i- ~0 S# A) h
DATE DECISION SIGNED: 22 November 2007
3 b2 w% j' Z( \PLACE OF DECISION: Sydney
1 Y5 [7 G7 g3 D" hDECISION: The Tribunal remits the application for Skilled — Independent Overseas Student (Residence) (Class DD) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 880 (Skilled — Independent Overseas Student) visa:
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• cl.880.215 of Schedule 2 to the Regulations.

STATEMENT OF DECISION AND REASONS; F4 n4 `4 }. n2 |# u; j% P/ o
APPLICATION FOR REVIEW
" I  G2 |+ a. H/ tThis is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Skilled — Independent Overseas Student (Residence) (Class DD) visa under s.65 of the Migration Act 1958 (the Act).
8 z# g4 {+ j2 c0 GThe applicant applied to the Department of Immigration and Citizenship for a Skilled — Independent Overseas Student (Residence) (Class DD) visa on 27 July 2005. The delegate decided to refuse to grant the visa on 10 February 2006 and notified the applicant of the decision and her review rights. % S; o; U/ i. u2 n( }5 S  h
The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision on 3 April 2007. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court and on 12 September 2007 the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law.
6 x! b7 k" C4 d, U7 BThe delegate refused the visa application on the basis that the applicant did not satisfy cl.880.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not satisfy cl.880.215.
7 u* S0 A. m( U* CThe matter is now before the Tribunal pursuant to the order of the Federal Magistrates Court.
5 B) x9 l" g8 ^, lRELEVANT LAW
0 M" G% y/ W, m; `The Skilled – Independent Overseas Student (Residence) (Class DD) visa is an onshore permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification. This class of visa contains one subclass; Subclass 880 (Skilled – Independent Overseas Student): item 1128CA(4) of Schedule 1 to the Regulations. This visa allows tertiary-qualified overseas students to apply for and have their visas granted in Australia.. C, i# D& M: u5 U. l+ H+ f
The criteria for a Subclass 880 visa are set out in Part 880 of Schedule 2 to the Regulations.4 J" {  N1 Q, l) L( T" v( w& i
The issue in dispute in this review is whether the visa applicant meets cl.880.215. At the time of application, this clause stated:+ X/ R! v# u  i+ Y

Minister is satisfied that each of the degrees, diplomas or trade qualifications mention in subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application.

Departmental policy on Qualifications ‘relevant to’ a nominated occupation is set out below. 4 b# V- J3 x* q  |8 ?

Qualification/s must be relevant to nominated occupation

completed Australian qualification/s must be ‘relevant to’ the nominated skilled occupation. The ‘relevant to’ requirement is to ensure that applicants have qualifications that are compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether the qualification is relevant to the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation. policy circumstances of a qualification not being ‘relevant to’ the nominated occupation include where the qualification is not related to the nominated skilled occupation ie. Being generally in different fields of study eg. An applicant who has completed motor mechanic and baker qualifications as a result of 2 years of full time Australian study. These qualifications would not meet the ‘relevant to’ requirement. combinations envisages that acceptable complementary qualifications may include such combinations as hairdressing and information technology (if nominating hairdressing but not if nominating an IT occupation) where the person has a suitable trades assessment from TRA and can demonstrate that they will be able to use the IT skills in a business environment. complementary courses could include ICT, business, or legal qualifications at diploma level, undertaken to supplement an 18 month generalist masters degree where the person claim 50 points for a generalist occupation. In these cases, the applicant would generally not be able to obtain suitable skills assessment from the 60 point assessing authority. CLAIMS AND EVIDENCE+ T( }0 P8 z7 u& L
The Tribunal has before it the Department’s and the Tribunal’s files relating to the applicant. The evidence on those files is summarised below.
1 }: R* l3 U; N' mThe applicant nominated the occupation of Pastry Cook (ASCO Code 4512-13) as her skilled occupation.
( ], y9 ]/ K1 W& sThe applicant provided documentation to the Department indicating that she completed a Certificate III in Food Processing (Retail Baking) – Cake and Pastry in June 2005; a Postgraduate Diploma in Business (Electronic Commerce) in 2004 and a Master of Commerce (Electronic Business) in 2005 at the Curtin University of Technology. 3 ]/ B  O5 b$ P0 x3 d% b
The applicant provided a statement to the Tribunal ‘Examples of Relevancy of E-Business to the Nominated Skilled Occupation’, in which she submitted that the subjects she studied for her Masters Degree can be applied to a pastry cook business. The applicant states that she intends to operate a web-based pastry shop and the costs are substantially less than operating a physical shop. The applicant states that the e-shop will contain a catalogue of various cakes, puffs, biscuits, scones, sponge, muffins, etc. which can be browsed by customers for a selection. Customers can then use an order system that records and validates the customer’s input for their orders and sends them to the server for further processing. The applicant states that the subjects she studied as part of her Masters Degree are relevant to operating an on-line business, including Electronic Commerce, Internet Marketing, System Development, Information Security Management, Enterprise Network Management and Enterprise Network Security which can be used directly in a pastry cooking business, especially in the contemporary business environment.
$ c- ]2 p& G: U! p; }( JThe delegate refused to grant the visa. The delegate found that the subjects undertaken by the applicant for her Masters of E-Business are specific to Information Technology and Communications fields and provide the applicant with expertise in the information technology field. Accordingly, the delegate found that the applicant’s nominated occupation does not meet the requirements set out in Item 1128CA(3)(l) for which cl.880.215 applies. # [$ r. ?$ a8 S3 ^$ o0 F0 H' S! T0 O
Following the lodgement of the application to the previously constituted Tribunal, the applicant provided a detailed submission in which she argued that there is no clear definition of the word “relevant” and it should be interpreted according to Departmental policy which indicates that the skill set/s underpinning the qualification/s obtained should be complementary and able to be used in the nominated occupation. The applicant states the following:
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definition, E-Business has strong relevance to the occupation of Pastry Cook as well as most of other occupations because E-Business enables a bakery/pastry shop owner to efficiently manage across different pastry cooking processes through the Internet-enabled online presence.

Victoria is an official Australia Government website. It defines “E-Business” as “conducting business electronically, both within an organization and externally, with clients, communities and partners ... nominated occupation Pastry Cook has meaningful existence only if it is in a business and is part of the operation process, or a procedure of a business. For example, pastry cooking can be described as the production process of a bakery/pastry business. The operation of a business including a pastry business involves many different areas, such as marketing, sales, accounting, supply chain, information system management, production, human resources, etc. None of them can work in isolation without interacting with other areas of the business. The same principle applies to a bakery/pastry business because, to stay commercially competitive and viable, a bakery/pastry business needs to employ people who have the knowledge not only in pastry cooking, but also knowledge in other areas such as marketing and sales, supply chain management and so on. Most importantly, the business manager needs an integrated E-Business model and information system to supervise and manage across different functions such as production, marketing, stoking/supply, human resources and accounting. E-Business has an irreplaceable role to play in small to medium sized bakery/pastry business ... can work as both a pastry chef and a manager responsible for information management, online marketing, online or offline buying and selling, customer relations management, production or supply chain management. The applicant attached examples of business sectors, including bakery/pastry businesses which have established on-line bakery/cakes and other businesses. The applicant concludes that the Master of E-Business from Curtin University has enable her to understand how information technology can be integrated in business including her proposed bakery/pastry shop and to manage the sharing of information with external partners, customers and suppliers. , d5 J$ Z& U2 M* [) ^( L: i) [2 V
The applicant also provided a summary of the course syllabus; aims and learning outcomes for the Master of E-Business. The summary indicates that the course syllabus is an introduction to developing a business website. The summary indicates that the course has the following aims:+ A( ^, `0 u9 ]# W5 q

the ability to develop a business website; proficiency in using Internet resources and services for educational and commercial purposes; an understanding of the Internet infrastructures and technologies; an understanding of basic electronic business concepts;
• an awareness of Internet security and legal issues.

As indicated above, the previously constituted Tribunal affirmed the delegate’s decision and the matter subsequently remitted by an order of the Federal Magistrates Court. % X! w2 y- s7 a1 ~2 z  N
Theapplicant appeared before the Tribunal on 21 November 2007 to give evidence and present arguments. The applicant’s oral evidence is summarised below. ) k! `% v6 u2 |0 ~& I! F
The applicant confirmed that she completed a Certificate III at the City College and a Diploma of E-Business and a Master of E-Business at the Curtin University. When asked to explain how her studies at Curtin University were relevant to her nominated occupation of Pastry Cook, the applicant stated that the concept of E-Business is not only about on-line shopping, it is also about integrating business concepts. The applicant believes that her information technology and business skills acquired through her Masters Degree will assist her to operate a pastry business in Australia. As a result of her studies, the applicant will be able to set up on-line systems and processes to deal with customers, suppliers and other businesses, to manage the financial affairs of the business and to manage staff members of the business. ; C( ?5 S2 \+ A; |# z
FINDINGS AND REASONS
* M5 h/ B- L( h/ r+ qThe Tribunal must determine whether the applicant’s Master of E-Business at the Curtin University is relevant to the skilled occupation nominated by the applicant. The applicant has nominated the skilled occupation of Pastry Cook.
# ?- H& f" X9 p$ BAs indicated above, there is no legislative definition of “relevance” in the context of cl.880.215. As indicated above, Departmental policy indicates that the critical factor in determining whether the qualification is relevant to the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation. The examples provided by policy include the nominated occupation of hairdressing, which may be complementary with the study of information technology. ! A+ r3 ]0 b' R$ Z; `
The Tribunal considers that the Departmental policy provides for a broad interpretation of the the definition of relevance in the context of cl.880.215. The Tribunal considers that Departmental policy indicates that the legislation is concerned with a “skill set” underpinning the legislation and with qualifications that can be “used” in the nominated occupation. The Tribunal considers that the legislation is consistent with the Departmental policy, as the legislation does not require that the qualifications obtained by the applicant correlate precisely with the duties of a Pastry Cook as outlined in ASCO and instead refers more broadly to the requirement that the qualifications be “relevant” to the nominated occupation. In such circumstances, whilst the Tribunal is not bound by Departmental policy, it considers it appropriate to be guided by the policy and the examples provided which allow for a broad interpretation of the meaning of relevance in this provision.
6 V' c- c$ W1 D- RThe Tribunal is satisfied that the visa applicant’s evidence establishes that she has completed a Masters Degree in E-Business. The Tribunal accepts that the aims of the course are to enable persons to undertake e-businesses, ie. to conduct businesses electronically. Although much of the course content is based on information technology, the Tribunal accepts that there is also a strong business component to the course. The Tribunal is satisfied that the skill set underpinning the Diploma of Business Management qualification is the development and operation of electronic businesses, whether it be a small or large businesses. The Tribunal accepts that the applicant has provided examples of similar food businesses which operate electronically and that it is feasible that a pastry business, such as that proposed by the applicant, could operate on an electronic basis. The applicant has provided evidence to the Tribunal that her studies will enable her to open her own electronic pastry business in the future and that she will use the units that she studied in her Masters of E-Business in relation to the establishment of the on-line business and with the ongoing organisation and maintenance of the business, including her dealings with suppliers, the management of finances, accounts and staff. The Tribunal is satisfied that the applicant has demonstrated that the business qualification can be complementary to the occupation of pastry cook. Accordingly, the Tribunal is satisfied that the “skill set” underpinning the qualification of the E-Business Degree can be utilised by the applicant to develop, operate and manage an on-line pastry business. The Tribunal is therefore satisfied that the visa applicant’s business qualification is complementary to her nominated occupation of Pastry Cook.  n7 L& Y# _/ D" e6 ~
The Tribunal is also satisfied that the other qualification, being the Certificate III in Food Processing (Retail Baking) – Cake and Pastry from City College, is relevant to the applicant’s nominated skilled occupation of Pastry Cook. The Tribunal accepts that this qualification is a “trade qualification” within the meaning of regulation 2.26A.
6 R  w% n1 S) L4 Y% A6 }Accordingly, the Tribunal is satisfied that the applicant has established that each of the qualifications, being a Masters Degree and a trade qualification, mentioned in subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation of Pastry Cook. The Tribunal finds that the visa applicant meets clause 880.215, a mandatory criterion for the grant of a Subclass 880 Skilled –Independent Overseas Student (Residence) (Class DD) visa.
1 d  Z* ~+ y8 T' V5 t1 B& m) {  [CONCLUSIONS
# _* o. s2 U8 q1 q( e2 d1 M7 JFor the reasons given above the Tribunal finds the applicant satisfies the requirements of cl.880.215.
) w/ O1 t; N6 P* u1 m& c7 C; u5 }DECISION/ O( f: Z$ @; h7 X( Z9 E9 p
The Tribunal remits the application for Skilled — Independent Overseas Student (Residence) (Class DD) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 880 (Skilled — Independent Overseas Student) visa:4 x2 i* I7 _* p- U3 y. v" q8 f  j

• cl.880.215 of Schedule 2 to the Regulations.

Susan Pinto9 u7 O# p! p- G4 d. Q
Member 4 F. n. K# p. @5 w
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AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback# X$ R( H! k+ Z, }) v
URL: http://www.austlii.edu.au/au/cases/cth/MRTA/2007/668.html
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[ 本帖最后由 hanson.sun 于 2008-2-23 13:15 编辑 ]

Certificate IV in Information Technology (Software Development)
4 ^) A2 X& t3 S8 n. N8 mA Bachelor of Business (Information Systems)
: E5 L  V, l/ y  n, W( a% f; l/ tA Certificate III in Hospitality (commercial cook), X& y2 g  d" v) M/ a! U6 g$ c

/ R7 U* Z- [: E, v8 G9 r; h申请880境内独立技术移民，先被澳大利亚移民局拒签，后继续被MRT仲裁机构拒绝授予SUBCLASS 880 PR签证。
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6 E: `) r$ V  N2 Q6 S# y060396153 [2007] MRTA 642 (8 November 2007)
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DECISION RECORD

) ^0 q; j+ h" Y8 j2 h: I4 ], N1 U& hCATCHWORDS: Review of visa refusal - Independent Overseas Student (Residence) (Class DD) - subclause 880.215 - qualifications relevant to nominated occupation ! L  O% D) R  r5 `0 M+ b
REVIEW APPLICANT: Rebecca Mandviwala
% Y) Y3 M6 j5 Q" R) aVISA APPLICANT: As Above
( D, Q* t' `. j/ |# a. WTRIBUNAL: Migration Review Tribunal+ E% P% s! [! _, O# C
PRESIDING MEMBER: Danica Buljan
2 }4 `: T1 k' ~' k- @7 nMRT FILE NUMBER: 060 396 153/ p1 w6 O$ J  s/ Q! g. E2 q8 E4 V2 \
DEPT FILE NUMBER: CLF2006/008812
  @8 S2 y$ e+ C* K7 l7 z5 }  lDATE DECISION SIGNED: 8 November 2007
6 p  L1 x% M' d) TAT: Melbourne5 E5 P! M) N- y6 i
DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Skilled - Independent Overseas Student (Residence) (Class DD) visa.
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STATEMENT OF DECISION AND REASONS
8 ]: V  w4 F3 U! x, a2 bAPPLICATION FOR REVIEW
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This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Skilled - Independent Overseas Student (Residence) (Class DD) visa under section 65 of the Migration Act 1958 (the Act).
• Ms Rebecca Mandviwala (the visa applicant), a national of Pakistan, born on 13 November 1979, applied for a Skilled - Independent Overseas Student (Residence) (Class DD) visa on 16 January 2006. The delegate’s decision to refuse to grant the visa was made on 18 April 2006.

JURISDICTION AND STANDING
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• The visa applicant lodged an application for review with the Migration Review Tribunal (the Tribunal) on 4 May 2006. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

LEGISLATION AND POLICY
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The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Citizenship (the Department). The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
• The criteria and policy immediately relevant to this review are:

Legislation:
" t. [) C( {( I/ T, E7 K' P6 LItem 1128CA of Schedule 1 to the Regulations6 T& G6 u8 ]4 [% J* ?! t
Part 880.215 of Schedule 2 to the Regulations+ S9 p1 E. F+ N* u" H9 x
Gazette Notices:
8 b8 C! N& i5 I- ZGN 49, 14 December 2005 – ‘Skilled Australian Sponsored (Migrant) Visa: Residential Postcodes, Skilled Occupations and Points (Regulations 1.03 and 2.26B)’+ t* ^/ g8 f: ~, `5 j$ k) ]
Policy:2 T0 ^. [9 X/ B: e
Procedures Advice Manual (PAM) 3
9 Y2 c$ o) @$ i) ZCases:) i: U. D8 E, a. U
Re Drake (No. 2) (1978-1980) 2 ALD 634% I1 y6 E! p) a3 E' B6 [$ Q
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 14292 Z: A9 a9 v& w" ?
Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168
5 W* U/ o2 ]7 y2 fThongsuk v Minister for Immigration and Anor [2007] FMCA 655 (10 May 2007)* P" n- V* [1 `4 r' w
Alimi v Minister for Immigration & Anor [2007] FMCA 1520 (16 October 2007) " _9 o* _% i. G* a& Q& i* z; J" X
Ashraf [MRT 060 404 766]! j" M) ]0 E1 L% d7 z0 E" N

& }! I* h  c# b" y8 I% D: \7 `1 \The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.& f. P5 a& F( g4 m) v4 C' P) s& m3 N
ISSUE FOR DETERMINATION
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• The visa applicant’s application for a Skilled - Independent Overseas Student (Residence) (Class DD) subclass 880 visa was refused because the Department found that the visa applicant’s qualifications in information technology were not relevant to her nominated occupation of “Cook”.

EVIDENCE
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• The Tribunal has the following documents:

T1 - MRT case file 060 396 153, folio numbered 1-228.
: J- \* ^& k7 A& m+ xD1 - Departmental case file CLF2006/008812, folio numbered 1-63.* \3 {  {5 v! I: l! j
The Visa Application
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The visa applicant first entered Australia on 14 February 2000 as the holder of a Student (Temporary) (Class TU) subclass 560 visa. The visa applicant was subsequently granted five subclass 573 visas, with the most recent being granted on 18 May 2005 and valid to 15 March 2006. Since then the visa applicant has held a bridging visa on the basis of the current application for review (T1, f.35-37). On 16 January 2006 the visa applicant lodged an application for a Skilled – Independent Overseas Student (Residence) (Class DD) subclass 880 (Skilled — Independent Overseas Student) visa. In her application she nominated her occupation as ‘Tradespersons and Related Workers nec (not elsewhere classified)’, with the Australian Standard Classification of Occupations (ASCO) Code 4513-11 (D1, f.1 pg.15). However, the Tribunal notes that this classification code refers to the occupation of a “Cook”. The visa applicant also indicated that she was not married.
• In her application, the visa applicant stated that she held the following qualifications:

A Certificate IV in Information Technology from the Northern Melbourne Institute of TAFE undertaken from February 2000 to December 2000; A Bachelor of Business (Information Systems) from Victoria University undertaken from June 2002 to December 2005; and
• A Certificate III in Hospitality from the Australian Institute of Trades Pty Ltd undertaken from February 2005 to June 2005 (D1, f.1 pg.16).

• The visa applicant included the following relevant evidence in support of her application:

A translated notarial certificate confirming that she was born on 13 November 1979 (D1, f.9); A certified copy of an academic transcript issued on 9 January 2001 by the Northern Melbourne Institute of TAFE in respect of the visa applicant’s Certificate IV in Information Technology (Software Development) (D1, f.18-19); A certified copy of a certificate dated 4 May 2001 from the Northern Melbourne Institute of TAFE stating that the visa applicant had completed the requirements for the award of a Certificate IV in Information Technology (Software Development) (D1, f.20); A certified copy of a ‘Statement of Attainment’ dated 9 June 2005 and issued by The Good Taste Company stating that the visa applicant had completed 13 units of competency in partial completion of a Certificate III in Hospitality (Commercial Cookery) (D1, f.22); A letter dated 10 June 2005 from the Australian Institute of Trades Pty Ltd stating that the visa applicant had commenced training for a Certificate III in Hospitality (Patisserie) with the institute on 18 February 2005 and that she had completed all the required units on 9 June 2005 (D1, f.23-25); A certified copy of an academic transcript issued on 10 June 2005 by the Australian Institute of Trades Pty Ltd in respect of the visa applicant’s Certificate III in Hospitality (Patisserie) (D1, f.27-28); A certified copy of a certificate dated 10 June 2005 from the Australian Institute of Trades Pty Ltd stating that the visa applicant had fulfilled the requirements for a Certificate III in Hospitality (Patisserie) (D1, f.26); A letter dated 19 December 2005 from Victoria University stating that the visa applicant had satisfied the requirements of the Bachelor of Business (Information Systems) (D1, f.29); A certified copy of an academic transcript issued on 20 December 2005 by Victoria University in respect of the visa applicant’s Bachelor of Business (Information Systems) (D1, f.21); An assessment dated 9 August 2005 by Trades Recognition Australia to the effect that her qualifications had been assessed as suitable for migration in her nominated occupation of Tradespersons and Related Workers nec, ASCO Code 4513-11 (D1, f.2); and
• IELTS test results for a test undertaken by the visa applicant on 9 July 2005, which stated that the visa applicant achieved a test score of 6.5 for listening, 6.5 for reading, 6.0 for writing and 8.0 for speaking, with an overall band score of 7.0 (D1, f.10).

In a submission dated 12 January 2006 the visa applicant’s representative stated that the visa applicant intends to open her own patisserie business in Australia and requires a degree in management for this purpose. As a result, the representative submitted the visa applicant’s Bachelor of Business and Certificate III in Hospitality (Patisserie) were relevant to her nominated occupation, given her intention to open her own patisserie (D1, f.46-47).
• Information from Victoria University, which appears on the departmental file, states the following in relation to the Bachelor of Business (Information Systems):

business degree is designed to produce graduates who will be both highly skilled and adaptable in the computing field. The course integrates computers into all aspects of teaching and intensive use is made of a variety of languages, operating systems and application packages within computer-networked laboratories.

will be suitably qualified to seek employment in a wide range of positions in the information technology industry in both the public and private sectors.... completing appropriate majors may be eligible to join other professional organisations in the records management and systems analysis fields. f.56)

• The Victoria University website also contains the following information:

School of Information Systems harnesses expert staff, the latest technology, software, research and facilities to ensure that our students will be indispensable to the smooth operations of any company.

f.54) The Primary Decision
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• On 18 April 2006 the delegate refused the application for the subclass 880 visa on the basis that, having regard to the duties and tasks performed by a Cook as set out in ASCO Code 4513-11, the delegate was not satisfied that the visa applicant’s qualifications in a Certificate IV in Information Technology and a Bachelor of Business (Information Systems) were relevant to her nominated occupation. As a result, the delegate found that the visa applicant did not satisfy the requirements of clause 880.215 for the grant of a subclass 880 visa (D1, f.61-62).

The Review Application* ~7 M8 l; N+ Q2 [2 z# Z# M2 d0 s

The visa applicant lodged an application for review with the Tribunal on 4 May 2006 (T1, f.1-9). A copy of the primary decision was included with the review application (T1, f.10-14). The matter was constituted to the Presiding Member on 31 October 2006. On 3 November 2006 the Tribunal received advice from the visa applicant’s representative that she was in the process of preparing a submission in respect of the review application and that she would be on leave from 1 December 2006 to 7 January 2007. The representative also stated that she would appreciate if a decision on the papers could be considered (T1, f.39).
• On 14 November 2006 the Tribunal received a lengthy submission from the visa applicant’s representative dated 13 November 2006 (T1, f.41-45), in which she referred to the policy guidelines in PAM3, applicable at the time of application, and which stated the following at paragraph 35.4:

Qualification/s must be relevant to nominated occupation

to’For: Schedule 1 (Classes DD, DE and UQ) and Schedule 2 (Classes BN, BQ and DB) the completed Australian qualification/s must be ‘relevant to’ the nominated skilled occupation. The ‘relevant to’ requirement is to ensure that applicants have qualifications that are compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether the qualification is relevant to the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation. policy, circumstances of a qualification not being ‘relevant to’ the nominated occupation include where the qualification is not related to the nominated skilled occupation ie being generally in different fields of study eg an applicant who has completed motor mechanic and baker qualifications as a result of 2 years of full time Australian study. These qualifications would not meet the ‘relevant to’ requirement. combinations envisages that acceptable complementary qualifications may include such combinations as hairdressing and information technology (if nominating hairdressing but not if nominating an IT occupation) where the person has a suitable trades assessment from TRA and can demonstrate that they will be able to use the IT skills in a business environment. complementary courses could include ICT, business, or legal qualifications at diploma level, undertaken to supplement an 18 month generalist masters degree where the person claim 50 points for a generalist occupation. In these cases, the applicant would generally not be able to obtain suitable skills assessment from the 60 point assessing authority.

• In support of the review application, the visa applicant’s representative also referred the Tribunal to the details of eight subclass 880 cases involving the combination of qualifications in information technology and cookery that were lodged at the same time as the visa applicant’s application, of which six had been approved by different departmental delegates (T1 f,.43). The representative also stated, in part, the following:

RELEVANT:

Dictionary: closely connected or appropriate to the matter in hand. of Legal: “Evidence that helps a point or issue in a case”. Dictionary: “A traceable, significant, logical connection” having some reasonable connection with. PAM guidelines define “relevant to” as applicants who have qualifications that are compatible with their nominated occupation. ASCO book used by the delegate was drafted in 1996 and is irrelevant 10 years later. and IT Qualifications have provided cases which were lodged at the sane [sic] time as my client that were approved and at least in the absence of any policy in PAM guidelines the applicant should have been approved. also find an inconsistency in Policy if a Hair Dresser with a Dip. In [sic] IT + Cert III is acceptable, why should the delegate have a different yard stick for a Dip. In [sic] IT and a Certificate III in Patisserie. skilling is essential for survival in the new millennium. In the present business environment an owner of a Cake Shop and Café must have qualifications in Business, IT, Marketing and a Cert III in Patisserie, if he or she must succeed in a competitive market.CONCLUSION: the absence of a definition of the word “Relevant” in the Migration Act or Migration Regulations the Dictionary meaning should apply. the Department has also approved similar cases (listed above) around the same time as the application of my client, in the spirit of consistency my client’s application should be approved. (Representative’s emphasis)f.41-43 & 45) The Tribunal’s first invitation to the visa applicant to comment on adverse information and to provide additional information:- U  N7 s. t6 X& V

• By letter dated 16 November 2006, and in accordance with section 359A of the Act, the visa applicant was invited to comment on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (T1, f.61-103). In particular, the visa applicant was invited to comment on the following matters:

The visa applicant had lodged her application for a subclass 880 visa on 16 January 2006 and had nominated her skilled occupation as “Tradesperson & Related Workers nec” (4513-11). The Australian Standard Classification of Occupations (ASCO) provides that ASCO Code 4513-11 relates to a “Cook” and the more recently published Australian and New Zealand Standard Classification of Occupations (ANZSCO First Edition 11 September 2006) provides that the occupation of “Cook” comes under Code 351411; In support of her application the visa applicant had submitted evidence of her qualifications in information technology from NMIT and Victoria University and evidence of her qualifications in hospitality from the Institute of Hotel Management Australia. In addition, the visa applicant submitted evidence of an assessment from Trades Recognition Australia designating her as a Tradesperson & Related Workers nec (4513-11); and
• On 18 April 2006 the Department had refused her visa application on the basis that she did not satisfy clause 880.215.

Copies of the visa applicant’s visa application, qualifications, ASCO Code 4513-11, ANZSCO Code 351411, her Trades Recognition Australia Assessment and the applicable criteria for a subclass 880 were included with the Tribunal letter. The Tribunal letter noted that this information was relevant to the review, because, unless the Tribunal was satisfied that at the time of application each of the visa applicant’s qualifications submitted in support of her application was relevant to the skilled occupation of “Cook”, the Tribunal might find that the visa applicant did not meet the requirements of clause 880.215. As a result, the Tribunal might have no alternative other than to affirm the decision under review. In addition, in the same letter and in accordance with subsection 359(2) of the Act, the Tribunal invited the visa applicant to provide additional information relevant to the review. In particular, the visa applicant was invited to provide evidence that each of the qualifications submitted by the visa applicant in support of her application was relevant to the skilled occupation of a “Cook” nominated by her.
• The Tribunal letter stated that the review applicant had until 27 December 2006 to provide her written comments and the additional information to the Tribunal.

The Visa Applicant’s Response:# }) C0 N( D3 U/ _7 F; a; N

• On 1 December 2006 the Tribunal received a response from the visa applicant’s representative, in which she stated, in part, the following:

the Migration Regulations 1984 [sic] nor the Migration Act 1958 specifically state so or imply that the qualifications must be in the nominated occupation.

policy, the critical factor in determining whether the qualification is ‘relevant to’ the occupation is whether the skill set/s underpinning the qualification/s obtained are complementary and can be used in the nominated occupation. Even policy does not state or imply in any way the applicant must have qualifications in the nominated occupations. mentioned in our letter dated 13th November, 2006 we have a similar case of relevancy with the MRT Sydney, and the Presiding member has made a decision on papers, without a hearing... MRT File No 060404766. trust our submission dated 13th Nov 06 and the Migration Review Tribunal Sydney decision ... (though not binding on the MRT) should enable the Presiding member to make a decision in favour of my client. trust that my submission dated 13th November will be considered as a response to your Section 359A letter dated 16th November 2006 and if the Tribunal is not satisfied with my response may I request that my client is given a face to face hearing to provide more information. f.106-107)

• In addition, the visa applicant’s representative submitted the following additional evidence in support of the review application:

• A signed statement dated 1 December 2006 from the visa applicant in which the visa applicant stated, in part, the following:

...

While I studied I also worked part time in various hospitality outlets and found this work very appealing.
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I toyed with the idea of opening my own little eating house and decided to keep studying as the combination of IT and Hospitality would equip me with the knowledge to run my own food place and handle paper work connected with the business.

4 ^" `' L2 i! |+ v) Y$ z% R

I carried on studying while I worked and learnt the art of cooking and became convinced in my mind that I should work towards opening my own food place and it was the combination of IT with the hospitality that would help me work through.

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The course that I have completed in Business Marketing and IT will help me in gaining the knowledge and skills required to plan the lay out of the restaurant, work out the planning of the menu, pricing day to day work and organizing all types of supplies, storage and service of the meal.

: j) H7 Y6 M9 X" Y! u; t# C; \: w2 J

The modules I have done consists [sic] of various aspects of marketing finance and IT and all together these modules will help me in operating my business successfully. It also covers the planning, budgeting storage and various requirements for setting up my own business.

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That all together the knowledge of marketing and the practical knowledge of Hospitality will be very helpful for my future business and I hope to set up my own restaurant in the near future.

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One colleague studying with me has got his subclass 880 and he has got the same background and identical qualifications as me.

f.104-105)

• A copy of the Tribunal decision in Ashraf (MRT Case Number 060 404 766) (T1, f.112-127).

On 15 February 2007 the Tribunal received a further submission from the visa applicant’s representative, in which she stated that she had attached a copy of a letter dated 18 December 2006 from the Department indicating a favourable decision in respect of another applicant (T1, f.150). The representative submitted that this other person’s circumstances were similar to the visa applicant’s and therefore indicated that the Department took a broad view of the term “relevant”. However, a copy of the departmental letter dated 18 December 2006 was not included with this particular submission. In addition, the representative submitted a certified copy of the visa applicant’s marriage certificate stating that she married Mr Ovais Ahmed in Melbourne on 23 December 2006 (T1, f.157). On 1 May 2007 the visa applicant’s representative informed the Tribunal that the visa applicant would be overseas from 29 April 2007 to 6 May 2007. A copy of the visa applicant’s travel itinerary and extracts from her Pakistani passport were included with the representative’s letter (T1, f.173-175).
• By letter dated 2 May 2007 the Tribunal wrote to the visa applicant and informed her that it had considered the material before it, but was unable to make a favourable decision on this information alone. As a result, the Tribunal invited the visa applicant to appear before the Tribunal to give oral evidence and present arguments at a hearing scheduled for 13 June 2007 (T1, f.181).

The Tribunal Hearing
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• A hearing was held on 13 June 2007 and Ms Rebecca Mandviwala, the visa applicant, and Mr Ovais Ahmed, her spouse, gave oral evidence. The visa applicant was represented at the Tribunal hearing by her representative. A summary of the oral evidence at the hearing follows.

The Visa Applicant’s Oral Evidence:- U' V8 Q9 _2 W( @; J8 X

The visa applicant stated that she believed the Department had made the wrong decision in her case because she had come to Australia to obtain a formal education and a better life. The visa applicant told the Tribunal that she wanted to be multi-skilled and was prepared to work anywhere to achieve a better life, as it is difficult to get a job in Pakistan. She stated that she believed a business degree would allow her to seek employment in a variety of directions. In addition, the visa applicant stated that she had decided to undertake a hospitality course because business in this particular sector of the Australian economy is booming. The visa applicant confirmed her date of birth and that she married her spouse on 23 December 2006. She also informed the Tribunal that her spouse was granted permanent residence in Australia on 1 December 2005, but he had not been included in her subclass 880 visa application, as they both lodged separate visa applications. In addition, the visa applicant gave evidence that the official language in Pakistan is Urdu and that her mother tongue is Gujratti. The visa applicant confirmed that she had first arrived in Australia in February 2000 on a student visa and that her application for a subclass 880 visa was lodged on 16 January 2006. She also agreed that she had nominated the occupation of “Cook” in her visa application for the purposes of the grant of a subclass 880. The Tribunal noted that both ASCO and ANZSCO provide that the duties for a Cook include the examination of food to ensure quality, the regulation of cooking equipment temperatures (including ovens, grills and other equipment), the preparation, seasoning, cooking, apportionment and storage of food, menu planning and the preparation of food to meet special dietary requirements as well as the training of other kitchen staff and apprentices. The visa applicant stated that she agreed that these were the duties of a Cook. In relation to her qualifications the visa applicant stated that she completed a one year Certificate IV course in Information Technology on 9 January 2001. She stated that she then went to La Trobe University in Bendigo to do a Bachelor of Information Systems, but subsequently returned to Melbourne to undertake a Bachelor of Business (Information Systems) at Victoria University from 2002 to December 2005. The visa applicant also stated that she undertook a four month Certificate III in Hospitality (Patisserie), which she completed on 18 June 2005. The Tribunal asked the visa applicant which course she was principally relying upon for the purposes of her visa application. The visa applicant responded that she was relying upon her Certificate III in Hospitality (Patisserie). The Tribunal noted that this particular course did not come within either subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1, because, based on the evidence before the Tribunal, she had not completed this course in the 6 months immediately before 16 January 2006 when she lodged her visa application. The visa applicant’s representative indicated to the Tribunal that she would like to make written submissions on this point to the Tribunal. As regards the visa applicant’s Bachelor of Business (Information Systems), the Tribunal asked the visa applicant what was the primary focus of this particular course and in which fields graduates of this course could be found. The visa applicant responded that her qualification provided qualifications relevant to a number of different business fields because it provided skills in basic information technology requirements relevant to a broadly computerised economy, project management and the management of a business. The visa applicant also stated that the particular electives she chose whilst undertaking the Bachelor of Business (Information Systems) meant that she had qualifications relevant to finance and management that would be applicable in any business field. The Tribunal observed that information from Victoria University appeared to indicate that the focus of the Bachelor of Business (Information Systems) was on computing skills and information systems, rather than business management. The visa applicant responded that the course included a mixture of both business and information technology subjects and that graduates from the course could go into either the information technology or business, including banking and finance, fields. The visa applicant also gave evidence that she wanted to open her own patisserie business and she would need business management skills to run a small business, which her Bachelor of Business (Information Systems) gave her. In addition, she stated that she had undertaken a patisserie course so that she would have relevant product knowledge for her business. At the Tribunal hearing the Tribunal provided the visa applicant with a copy of her academic transcript for her Bachelor of Business (Information Systems) from Victoria University and asked her to explain the various grades that appeared on the transcript. The visa applicant gave evidence as follows: ‘D’ is a distinction; ‘C’ is a credit; ‘P’ is a pass; ‘N1’ is a first level fail; ‘N2’ is a second level fail; ‘SE’ refers to a special examination, which meant that the visa applicant had been exempted from undertaking a particular unit. The visa applicant was unable to recall what ‘CE’ stood for. The Tribunal also asked the visa applicant to identify the particular subjects in her course which were relevant to the nominated occupation of a “Cook”. The visa applicant responded that the following subject units were relevant: Business Statistics; Introduction to Marketing; Business Communication; Microeconomic Principles; Accounting for Decision Making; Web Enabled Business Systems which dealt with marketing a business over the internet; The Information Professional which dealt wit project management; Management and Organisation Behaviour; Managing Systems Development, Marketing on the Internet, Computing Project which involved working as a team; and Business Law. The Tribunal observed that the visa applicant had failed Business Statistics twice before she finally passed. In addition, she had failed Introduction to Hospitality, which might well have been relevant to the nominated occupation and marketing on the internet. The Tribunal further noted that the visa applicant had been exempted from undertaking Business Communication, Accounting for Decisionmaking, Management and Organisation Behaviour and Business Law. The visa applicant agreed this was correct, but stated that she had been exempted from these subjects because she had undertaken them as part of her Certificate IV in Information Technology course.
• The Tribunal noted that the occupation the visa applicant had nominated was that of a “Cook” and not that of a small business manager, and again asked the visa applicant to explain how her Bachelor of Business (Information Systems) was relevant to her nominated occupation. The visa applicant responded that in running a small business she would not always be involved in cooking and therefore her Bachelor of Business (Information Systems) course would assist her to run her own business. The visa applicant stated that the focus of her small business would be to provide a range of patisserie products that were suitable for consumption by Muslims and she believed she needed to be multi-skilled in order to run such a small business. The visa applicant also stated that she would like to settle down with her spouse in Australia and the decision in respect of her visa application would impact upon what she would be doing in Australia.

The Oral Evidence from the Visa Applicant’s Spouse:; X0 o" f7 E8 o7 F6 E

• Mr Ovais Ahmed gave evidence that he was born on 26 November 1974 and he confirmed that he married the visa applicant on 23 December 2006. He also gave evidence that he became an Australian permanent resident on 1 December 2005, having been granted a subclass 880 visa on the relying on the same qualifications that the visa applicant had, since they had both undertaken the same courses. Mr Ahmed gave evidence that the food and hospitality sector is growing and that he had observed a number of hospitality outlets in both Coburg and Brunswick were doing very well. He stated that he and the visa applicant had decided that they would open a cake shop in this area to suit the special dietary requirements of Muslims and, which they hoped, would introduce a south eastern taste to their products. Mr Ahmed told the Tribunal that the refusal of the visa applicant’s visa application had been financial and emotionally quite stressful for the parties, particularly, as their uncertain situation meant that did not feel they could move forward with their lives.

The Oral Submissions from the Visa Applicant’s Representative:
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The visa applicant’s representative submitted that the decision in Thongsuk v Minister for Immigration and Anor [2007] FMCA 655 could be distinguished from the visa applicant’s case on the facts. She argued that in Thongsuk the applicant had sought to rely on his MBA qualifications and there was no evidence that he had completed a relevant cookery course. However, the visa applicant was relying on a combination of two courses to satisfy the criteria for the grant of a subclass 880 visa. The Tribunal noted that even if it proceeded on the basis that the visa applicant’s Certificate III in Hospitality was relevant for the purposes of clause 880.215, the wording of this particular clause required the Tribunal to consider whether “each” of the qualifications is relevant to the skilled occupation nominated. As a result, the Tribunal stated that whilst it accepted that the Certificate III in Hospitality is relevant to the nominated occupation of a “Cook”, the issue before it was whether the Bachelor of Business (Information Systems) is also relevant to the nominated occupation of a “Cook” having regard to the decision in Thongsuk.
• The visa applicant’s representative then referred to the delay in the processing of the review application before the Tribunal. The Tribunal responded that whilst any delay is not desirable, the visa applicant was onshore and her application had not been granted special priority. The Tribunal also advised the representative that it had to balance a range of competing priorities within its caseload, including undertaking a proper review of the evidence before it. The representative submitted that the Tribunal should take into account that there had been inconsistent decisions at the primary decision making level. She notes that this had resulted in some applicants being granted subclass 880 visas with qualifications that were similar to the visa applicant’s, yet the visa applicant’s application had been refused. The representative added that she would provide the Tribunal with further written submissions in respect of these matters.

Post-Hearing Issues8 p; [7 S, G0 |" c8 B0 ^+ Y
The Tribunal’s second invitation to the visa applicant to comment on adverse information and to provide additional information:. n4 J( v- a/ }/ c* i

Following the Tribunal hearing on 13 June 2007, the Tribunal sent a letter dated 14 June 2007 to the visa applicant inviting her to comment on adverse information and certain inconsistencies in the evidence that it considered may be the reason, or part of the reason, for affirming the decision under review (T1, f.204-209). In particular, the Tribunal invited that visa applicant to comment on the fact that the evidence before it indicated she had completed her Certificate IV in Information Technology in 2001 and her Certificate III in Hospitality (Patisserie) on 9 June 2005, which was not in the 6 months immediately before the lodgement of her visa application on 16 January 2006. The Tribunal letter stated that this information was relevant to the review because the Tribunal might find that neither of these courses satisfied subparagraph 1128CA(3)(l)(ii)(A) and, as a result, the Tribunal might find that the only qualification that met the requirements of either subparagraph 1128CA(3)(l)(i) or (ii) was the Bachelor of Business (Information Systems) qualification. In addition, the Tribunal invited the visa applicant to comment upon the fact that in her evidence she had agreed that the duties for her nominated occupation of “Cook” were accurately reflected by ASCO and ANZSCO, but that her evidence in relation to the primary focus of her Bachelor of Business (Information Systems) conflicted with information available from Victoria University. The Tribunal further invited the visa applicant to comment upon the specific relevance of many of the subject units set out in her academic transcript for the Bachelor of Business (Information Systems) to her nominated occupation of “Cook”. In addition, the Tribunal invited the visa applicant to comment upon the fact that she had nominated this particular occupation and not that of a small business manager. The Tribunal letter stated that this information was relevant to the review because, applying the applicable test set out in Thongsuk, the Tribunal might not be satisfied that the visa applicant’s Bachelor of Business (Information Systems) qualification is relevant to her nominated occupation of “Cook” (ASCO Code 4513-11). The Tribunal letter included copies of the visa applicant’s academic transcripts from NMIT and Victoria University, the letter dated 10 June 2005 from the Australian Institute of Trades Pty Ltd, and the course details from Victoria University in relation to the Bachelor of Business (Information Systems) to assist the visa applicant to comment upon the matters raised in its letter (T1, f.194-203) In the same letter, and in accordance with subsection 359(2), the Tribunal invited the visa applicant to provide evidence of what the acronym “CE” in her academic transcript from Victoria University stood for, as well as a copy of the delegate’s decision dated 18 December 2006 referred to her in representative’s submission dated 13 February 2007. On 18 June 2007, by facsimile transmission, the Tribunal received a request from the visa applicant’s representative under section 362A of the Act for access to the written material before it (T1, f.212-218. By letter dated 20 June 2007 the visa applicant’s representative was granted access to the documents on the Tribunal file without exception (T1, f.219).
• On 21 June 2007 the Tribunal received a request from the visa applicant’s representative for an extension of time in which to respond to the Tribunal’s letter dated 14 June 2007, on the basis that she would be overseas until 17 July 2007 (T1, f.220). By letter dated 21 June 2007 the Tribunal granted the request for an extension of time for a further prescribed period (T1, f.222).

The Visa Applicant’s Response:' U5 x5 w3 q+ Z; l% q7 c) C

• On 19 July 2007 the Tribunal received the following response from the visa applicant’s representative:

have discussed with my client the fax dated 21st June 2007 and she has now requested me to request the Migration Review Tribunal to consider applying Migration Regulation 2.11 as she is now eligible to apply for a spouse visa.

f.225)

On 20 September 2007 the Tribunal was advised by the visa applicant’s representative that she was taking leave until 15 October 2007 and would be grateful if the Tribunal could avoid issuing any notices during this period.
• As at the date of the Tribunal’s decision it has not been provided with any further submissions from the visa applicant’s representative in respect of its letter dated 14 June 2007, or the matters raised at the Tribunal hearing.

FINDINGS 2 C7 }" z! u0 h& u! Q& f* x6 p/ J

At the time the visa application was lodged, Skilled — Independent Overseas Student (Residence) (Class DD) visa contained only one subclass: subclass 880 (Skilled — Independent Overseas Student).
• In order to succeed to be granted a visa under section 65 of the Act, it is necessary for the visa applicant to satisfy all of the criteria for the grant of a visa set out in the Regulations. The relevant criteria that must be met for a subclass 880 visa are set out in Part 880 of Schedule 2 of the Regulations.

Subclass 880 - Time of Application Criteria:: S' H% Q3 w9 N/ Z

• The Tribunal notes that Item 1128CA in Schedule 1 of the Regulations sets out the requirements for making a valid application for this particular visa class. In particular, the Tribunal observes that subparagraph 1128CA(3)(k) provides:

(k) Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
* b3 u8 ~2 }0 g4 s- S6 G6 b6 k

The visa applicant obtained a Trades Recognition Assessment from the Department of Employment and Workplace Relations dated 9 August 2005, which states that the visa applicant was designated a ‘Tradesperson and Related Workers nec’, ASCO Code 4513-11. However, this is an error. ‘Tradesperson and Related Workers nec’ is ASCO Group 4999 and includes such diverse occupations as Architectural Model Maker, Chainsaw Mechanic, Lawnmower Mechanic, Musical Instrument Repairer and Surfboard Maker, whereas ASCO Group 4513 covers only Cooks and Apprentice Cook/Chef. Notwithstanding, the Tribunal is prepared to proceed upon the basis that the Trades Recognition Assessment was intended to relate to the ASCO Code 4513-11, Cook. The Tribunal notes that a Skilled Occupation, for the purpose of this application, is an occupation listed in the Commonwealth of Australia Gazette GN 49, 14 December 2005. It includes Cook, ASCO Code 4513-11, as an occupation for which 60 points are available.
• In the current case, the delegate found that the visa applicant’s qualifications in information technology were not relevant to her nominated occupation of “Cook” and therefore she did not meet the requirements of clause 880.215, which states:

The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1128CA(3)(l)(i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application.
: X# F" q! z3 x6 p7 T5 Y# U

• Accordingly, clause 880.215 requires the Tribunal to first assess whether each of the visa applicant’s qualifications satisfies the requirements of subparagraph 1128CA(3)(l) of Schedule 1 of the Regulations.

Schedule 1 Requirements - subparagraph 1128CA(3)(l):
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• Subparagraph 1128CA(3)(l) reads as follows:

(l) Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration that:% D6 p$ D! r: S* q/ b
(i) each of the following sub-subparagraphs applies in relation to the applicant:+ j1 |- N( d# s) f2 Y2 [
(A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of at least 2 years at that institution while the applicant was present in Australia;
% [6 ]) _8 @- L& [. x; y[(B) omitted by SLI 2005, 133 with effect from 1/07/2005 - LEGEND note]) H* t7 S% i1 |8 Q
(C) all instruction for that degree, diploma or trade qualification was conducted in English; or
. b' m! d4 A3 r+ e5 L: K1 T$ N* R(ii) each of the following sub-subparagraphs applies in relation to the applicant:- _2 N, i- A- Q' q2 `( U
(A) the applicant has, in the 6 months immediately before the day when the application is made, completed a degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by an Australian educational institution as a result of a course of study of less than 2 years at that institution while the applicant was present in Australia;9 F2 ], r- ?" |5 J
(B) before completing that degree, diploma or trade qualification, the applicant completed at least 1 other degree, diploma or trade qualification (other than a degree, diploma or trade qualification in English language proficiency) for award by that institution, or another Australian educational institution, as a result of a course of study, while the applicant was present in Australia;% Q* ?9 H; Z$ P7 m; @4 h
(C) the 2 or more degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) were completed as a result of 1 or more courses of study undertaken over a total of at least 2 years while the applicant was present in Australia;
& E7 ?" D2 C2 u) a* F8 s(D) each of the degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) was completed at the institution at which it was commenced;$ X/ y7 ~9 ]) N. Q! h$ ?
[(E) omitted and (F) renumbered (E) by SLI 2005, 133 with effect from 1/07/2005 - LEGEND note]& {6 m  g5 T+ C; e/ Y
(E) all instruction for each of the degrees, diplomas or trade qualifications mentioned in sub-subparagraphs (A) and (B) was conducted in English.
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• In order to meet the requirements of subparagraph 1128CA(3)(l)(i), the visa applicant must satisfy each of the sub-subparagraphs 1128CA(3)(l)(i)(A) and (C). Similarly, if the visa applicant is to meet the alternative requirements in subparagraph 1128CA(3)(l)(ii), she must satisfy each of the sub-subparagraphs 1128CA(3)(l)(ii)(A), (B), (C), (D) and (E).

The Bachelor of Business (Information Systems):' r4 E$ s/ }3 T! p

In relation to sub-subparagraph 1128CA(3)(l)(i)(A), the visa applicant completed a Bachelor of Business (Information Systems) at Victoria University on 20 December 2005, which was a two year course completed in the six months immediately preceding the lodgement of the visa application on 16 January 2006. Therefore, the visa applicant’s Bachelor of Business (Information Systems) meets the requirements of sub-subparagraph 1128CA(3)(l)(i)(A). In addition, the evidence before the Tribunal indicates that the instruction for this degree qualification was conducted in English and therefore the requirements of sub-subparagraph 1128CA(3)(l)(i)(C) are met.
• Accordingly, the visa applicant’s Bachelor of Business (Information Systems) satisfies the requirements of subparagraph 1128CA(3)(l)(i) for the purposes of clause 880.215.

The Certificate IV in Information Technology:- n2 o$ M2 d2 |7 U$ c: J

The Tribunal observes that the Certificate IV in Information Technology from NMIT was undertaken by the visa applicant from February 2000 to December 2000. As such, this is a course of less than two years duration. It therefore does not satisfy the requirements of sub-subparagraph 1128CA(3)(l)(i)(A) and cannot satisfy subparagraph 1128CA(3)(l)(i). As a result, in order for the visa applicant’s Certificate IV in Information Technology to be considered for the purposes of clause 880.215, it must satisfy the requirements of subparagraph 1128CA(3)(l)(ii).
• The Tribunal observes that sub-subparagraph 1128CA(3)(l)(ii)(A) requires the visa applicant to have undertaken a course of study of less than two years duration; the visa applicant’s Certificate IV in Information Technology meets this requirement. However, sub-subparagraph 1128CA(3)(l)(ii)(A) also requires the visa applicant to have completed this qualification in the six months immediately before the lodgement of the visa application on 16 January 2006. Given that the visa applicant completed this course on 9 January 2001, she did not complete it in the six months immediately before the lodgement of her visa application. The Tribunal has had regard to the fact that the visa applicant’s representative indicated at the Tribunal hearing that she would provide the Tribunal with written submissions on this matter, but she has not done so. Accordingly, the Tribunal finds that the visa applicant’s Certificate IV in Information Technology does not meet the requirements of sub-subparagraph 1128CA(3)(l)(ii)(A) and therefore subparagraph 1128CA(3)(l)(ii) for the purposes of clause 880.215.

The Certificate III in Hospitality (Patisserie):
$ {* Q! G! `" X# a1 e. |

The Tribunal observes that the Certificate III in Hospitality (Patisserie) from the Australian Institute of Trades Pty Ltd was undertaken by the visa applicant from February 2005 to June 2005. As a result, it too is a course of less than two years duration and therefore does not satisfy the requirements of sub-subparagraph 1128CA(3)(l)(i)(A). Accordingly, the Tribunal finds that the visa applicant’s Certificate III in Hospitality (Patisserie) does not satisfy subparagraph 1128CA(3)(l)(i). Accordingly, in order for the visa applicant’s Certificate III in Hospitality (Patisserie) to be considered for the purposes of clause 880.215, it must satisfy the alternative requirement set out in subparagraph 1128CA(3)(l)(ii). As regards sub-subparagraph 1128CA(3)(l)(ii)(B), the visa applicant completed her Certificate III in Hospitality (Patisserie) course after she completed the Certificate IV in Information Technology. As a result, the Tribunal finds that the visa applicant’s Certificate III in Hospitality (Patisserie) satisfies this particular subparagraph. In relation to sub-subparagraph 1128CA(3)(l)(ii)(C), the Tribunal notes that the visa applicant undertook the Certificate III in Hospitality (Patisserie) course concurrently with the Bachelor of Business (Information Systems) so that the Certificate III in Hospitality (Patisserie) course does not add to the length of time that the visa applicant studied in Australia. Similarly, the visa applicant commenced and completed her Certificate III in Hospitality (Patisserie) at the Australian Institute of Trades Pty Ltd in English and therefore the requirements of sub-subparagraphs 1128CA(3)(l)(ii)(D) and (E) are met.
• As regards sub-subparagraph 1128CA(3)(l)(ii)(A), the Tribunal notes that the visa applicant’s Certificate III in Hospitality (Patisserie) was a course of less than two years duration. However, as the visa applicant completed this course on 9 June 2005, she did not complete it in the six months immediately before the lodgement of her visa application. As a result, the Tribunal finds that the visa applicant’s Certificate III in Hospitality (Patisserie) does not meet the requirements of sub-subparagraph 1128CA(3)(l)(ii)(A) and therefore subparagraph 1128CA(3)(l)(ii) for the purposes of clause 880.215.

The implications of the Tribunal’s findings regarding subparagraph 1128CA(3)(l):6 |. D% k+ K$ Z+ E4 u1 J

Based upon the evidence before it, the Tribunal observes that the principal qualification of the visa applicant, upon which her capacity to meet the Schedule 1 criteria in subparagraph 1128CA(3)(l) is founded, is her Bachelor of Business (Information Systems) degree. At the Tribunal hearing the visa applicant’s representative disagreed with this conclusion. She argued that visa applicant’s circumstances could be distinguished from those of the applicant in Thongsuk v Minister for Immigration and Anor [2007] FMCA 655 (Thongsuk), because in the latter case the applicant had sought to rely on his Master of Business Administration (MBA) qualifications and there was no evidence that he had completed a relevant cookery course, whereas the visa applicant was relying on a combination of two courses to satisfy the criteria for the grant of a subclass 880 visa. However, the Tribunal notes in Thongsuk that both the MBA and Certificate III in Food Processing under consideration by the Court satisfied the requirements of subparagraph 1128CA(3)(l) for the purposes of clause 880.215. However, this is not the case in relation to the visa applicant’s Certificate III in Hospitality (Patisserie) qualification.
• In any event, the Tribunal observes that even if it proceeds on the basis that the visa applicant’s Certificate III in Hospitality is relevant for the purposes of clause 880.215, the wording of this particular clause requires the Tribunal to consider whether “each” of the visa applicant’s qualifications is “relevant” to the skilled occupation nominated. As a result, whilst the Tribunal accepts on the basis of the evidence before it that the Certificate III in Hospitality is relevant to the nominated occupation of a “Cook”, the issue before it essentially remains the same: namely, whether the visa applicant’s Bachelor of Business (Information Systems) is also relevant to her nominated occupation of a “Cook”.

The relevance of the visa applicant’s Bachelor of Business (Information Systems) qualification to her nominated occupation of a “Cook”:/ C7 H" E) |& |4 a

In her visa application the visa applicant nominated ASCO Code 4513-11, which refers to the occupation of a “Cook”, as her nominated occupation. She also submitted that her Bachelor of Business (Information Systems) qualification was relevant to her nominated occupation because it provided her with business management skills that would assist her to successfully run a small business; namely, a specialist patisserie catering to Muslim, as well as Australian, clientele. The Tribunal has had regard to the submissions put forward by the visa applicant’s representative on the meaning of the word “relevant” in clause 880.215 and agrees that this term is not defined in the legislation and accepts the dictionary definitions of “relevant” that have been put forward. On behalf of the visa applicant it was also submitted that, given that the relevant departmental policy guidelines allow the combination of information technology skills with hairdressing skills where the two are utilised in a business environment, there was no reason why a different approach should be adopted in relation to the combination of information technology skills with those of a cook, where an applicant intends to operate a patisserie or café. However, the Tribunal notes that while it is guided by policy, it is not bound to follow it. The Tribunal has had regard to the fact that Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634 held that it is a matter for the Tribunal itself to determine the part which policy plays in the context of the particular case, having regard need to balance the need for compromise between, on the one hand, the interests of good government and the desirability of consistency in the treatment of citizens under the law and, on the other hand, the ideal of justice in the individual case. In Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429 the Court reiterated that if policy requires more than the legislation states, then that policy will be unlawful and it would be an error on the part of the Tribunal to apply it. This view was endorsed by the Full Federal Court in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168. In the more recent case of Alimi v Minister for Immigration & Anor [2007] FMCA 1520 (16 October 2007) Riley FM held that policy must give way to the specific wording of the regulation, even in circumstances where the policy was beneficial to applicants. By the same token, policy cannot override case law that is directly relevant to the interpretation of a particular regulation.
• In addition, the Tribunal observes that the case of Thongsuk is directly relevant to the determination of the issue currently before it. In Thongsuk the applicant stated that a MBA in Financial Management was relevant to the nominated occupation of pastry cook. Whilst Smith FM accepted [at par.23] that the “relevance” test in clause 880.215 would allow degrees, diplomas and trade qualifications to go beyond merely the mandatory qualifications for a nominated occupation, he also stated the following:

... the use of “relevant to” suggests the need for the Minister to be satisfied as to a positive “pertinence” and particular “usefulness” of the qualifications to the nominated occupation, which is more than that of providing generally relevant education or skills or personal background. The purpose of the criterion in 880.215 is manifestly to require more than that the visa applicant has successfully completed 2 years or more of Australian study. I consider that it is looking for a relationship between that study and the nominated occupation, in which the visa applicant can be assumed to have acquired skills, learning or qualifications which have a connection to the occupation which is more than that of generally benefiting the person in his future employment in the nominated occupation.

In my opinion, it would be unfortunate, and unnecessary, for the Court to adopt a particular description of the required proximity or connection between the educational achievement and the occupation. It is enough that I accept that the Minister is intended to evaluate the relationships of the educational studies and achievement to the nominated occupation, and to be positively satisfied that the Australian educational achievement is occupationally relevant to the particular demands of the nominated skilled occupation as indicated in its ASCO definition. Because of the intangibility of the criterion’s concept of “relevance”, there is a considerable legal space for the Minister’s delegates and the Tribunal to be guided by administrative policy and to take into account a broad range of considerations, assessing both the nature of the qualifications acquired and the demands of the nominated occupation. I therefore do not accept the submissions of counsel for the applicant that it was legally irrelevant for the Tribunal to consider the skills and qualifications gained by the applicant through his MBA studies broadly, as part of an assessment of the relevance of those studies to the occupation of pastry cook as distinct from other occupations in the ASCO classification. Nor do I accept his submissions that it was enough for the Tribunal to find that an MBA might provide “some benefit or skills” to a pastry cook, and that the Tribunal irrelevantly compared the applicant’s MBA studies with other educational achievements which were more relevant to that occupation. emphasis]

As a result, although the Tribunal is not bound by the ASCO Codes or the description of skills and roles it attributes to particular occupations, the courts have endorsed the relevance of the guidelines set out in ASCO in relation to the task currently before the Tribunal.
• ASCO Code 4513-11 sets out the skill set and tasks for the occupation of a Cook as follows