1419737 (Migration) [2015] AATA 3578 (27 October 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANTS:	Mr Mauro Ferrari
Miss Rossella Maccioni 
CASE NUMBER:	1419737
DIBP REFERENCE(S):	BCC2014/1671395 
MEMBER:	Rania Skaros
DATE:	27 October 2015
PLACE OF DECISION:	Sydney
DECISION:	The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
•	cl.457.223(4)(da) of Schedule 2 to the Regulations.
•	cl.457.223(4)(e) of Schedule 2 to the Regulations.

Statement made on 27 October 2015 at 9:52am

statement of decision and reasons
application for review
1.  	This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
2.  	The visa applicants applied for the visa on 8 July 2014.
3.  	At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.
4.  	The delegate refused to grant the visas on 13 November 2014 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had demonstrated that he has the skills, qualifications and employment background necessary to successfully perform the tasks of the nominated occupation of Cafe or Restaurant Manager.
5.  	For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
6.  	The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e) and (da).
7.  	The Tribunal notes that the most recently approved nomination in relation to the applicant has now ceased, however, the Tribunal has received evidence that the applicant’s sponsoring employer has recently applied for approval of a nomination in respect of the applicant for the same occupation, Cafe or Restaurant Manager, which is pending.
Skills, qualification and employment background of the applicant
8.  	Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. As noted above, the nominated occupation in this case is Cafe or Restaurant Manager 14111. 
9.  	When applying for the visa the applicant provide three employment references. He was requested by the delegate to provide further evidence of his skills, qualifications and employment so as to demonstrate he has skills specified in the ANZSCO for the nominated occupation, however, the applicant did not provide the requested information within the period specified by the delegate. 
10.  	On review, the Tribunal invited the applicant to provide current information to demonstrate that he that he has the skills necessary to perform the tasks of nominated occupation. In response the Tribunal received a number of documents, including, the applicant’s detailed resume, certificates for various short courses completed by the applicant, employment references from the sponsoring employer, current employment contract, PAYG Summary and wage records and references from previous employers. 
11.  	Like the delegate, the Tribunal assessed the applicant’s skills with reference to the skill level specified in the ANZSCO.  According to ANZSCO, the nominated occupation of Cafe or Restaurant Manager is an occupation in skill level 2 and requires an AQF Associate Degree, Associate Diploma or Diploma qualification. At least three years of relevant experience may substitute for the formal qualifications. 
12.  	The Tribunal finds on the material before it that the applicant does not have at least a diploma level qualification. The Tribunal has therefore considered whether his work experience can substitute for formal qualifications. The Tribunal is satisfied on the basis of the employment references and income documents provided from the sponsoring employer that the applicant has been employed as an Assistant Bar and Restaurant Manager since December 2013 and that the tasks performed by him in that role correspond with the tasks included for the nomination occupation as set out in the ANZSCO. The Tribunal also notes that the applicant has completed basic courses in 2011 as a Barman and Barista and has since worked in Australia and overseas in various hospitality roles, including as waiter, barman, apprentice bar manager, head barista and assistant bar/restaurant manager since 2010. While not all the tasks specified in the ANZSCO for the nominated occupation of Café/ Restaurant Manager had been undertaken by the applicant in the roles he filled from 2010 to 2013, the Tribunal is satisfied on the totality of the evidence that the experience he gained in these lower level occupations was relevant and demonstrated a progression of his career in the hospitality industry. The Tribunal gives weight to the references from the General Manager, Restaurant Manager and Head Sommelier of Jonah’s Restaurant and Boutique Hotel, the sponsoring employer, which detail the applicant’s training, skills and employment background and his suitability for the nominated role. On the totality of the evidence before it, the Tribunal is satisfied that the applicant has at least three years of experience that is relevant to the nominated occupation of Café or Restaurant Manager.  
13.  	Given the above, the Tribunal is satisfied that the applicant possesses the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
14.  	As the applicant has now provided the requested information, the Tribunal is also satisfied that the applicant has demonstrated, as required, that he has the skills necessary to perform the nominated occupation.
15.  	For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
16.  	Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.
decision
17.  	The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
•	cl.457.223(4)(da) of Schedule 2 to the Regulations.
•	cl.457.223(4)(e) of Schedule 2 to the Regulations.

Rania Skaros
Member

ATTACHMENT  -  claUSE 457.223 (extract)
457.223
…

Standard business sponsorship
…
(4)	The applicant meets the requirements of this subclause if:
(a)	each of the following applies:
(i)	a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; 
(ii)	the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; 
(iii)	the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)	the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)	either:
(i)	the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii)	each of the following applies:
(A)	the applicant is employed to work in the nominated occupation; 
(B)	if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person; 
(C)	if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)	the Minister is satisfied that:
(i)	the applicant’s intention to perform the occupation is genuine; and
(ii)	the position associated with the nominated occupation is genuine; and
(da)	the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)	if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(ea)	if:
(i)	the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii)	in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb)	if:
(i)	the applicant is not an exempt applicant; and
(ii)	subclause (6) does not apply to the applicant; and
(iii)	at least 1 of subparagraphs (ea) (i) and (ii) does not apply;
the applicant:
(iv)	has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v)	achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)	if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)	either:
(i)	there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii)	it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)	This subclause applies to an applicant if:
(a)	the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)	the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)	In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.