1415427 (Migration)

[2015] AATA 3445

1415427 (Migration) [2015] AATA 3445 (24 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mattia Di Febbo

CASE NUMBER:  1415427

DIBP REFERENCE(S):  BCC2014/782293

MEMBER:Don Lucas

DATE:24 September 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 24 September 2015 at 9:36am

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 19 March 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 visa on 27 August 2014 on the basis that cl.457.223(4)(da) was not met because the applicant was found to lack the skills, qualification and employment background necessary to perform the occupation of Chef for which he had been nominated by a standard business sponsor.

5. The applicant appeared before the Tribunal on 15 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Craig Regan, the applicant’s employer and standard business sponsor.

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da).

   The nominated occupation

9. In the visa application lodged on 28 April 2014, the applicant named Red Hill Epicurean Pty Ltd in Red Hill Victoria as his sponsoring employer. At the time of lodgement of the review application on 12 September 2014, a nomination made by Red Hill Epicurean for the position of Chef, ANZSCO[1] 351311 relating to the applicant had been approved on 31 March 2014. Under the terms of Migration Regulation 2.75, this initial nomination expired on 31 March 2015 whilst the review was pending.

   [1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary

10. During the course of the review, the applicant provided evidence that his business sponsor had applied for and was again approved in relation to a nomination concerning the applicant for the position of Chef. The approval was dated 27 May 2015 and under the terms of the r. 2.75 the nomination remains in effect until 27 May 2016.

11. Subsequently, on 9 June 2015 the applicant’s business sponsor applied for approval of an alternative nomination identifying the applicant for the position of Cook. This second and subsequent nomination was in turn approved by the Department on 24 June 2015.

12. The applicant accordingly at present has two current nomination is in which he has been identified to work for a standard business sponsor in two separate occupations for the purpose of a subclass 457 visa program.

13. The Tribunal has proceeded to consider whether the applicant possesses the necessary skills qualification and employment experience for the higher skilled occupation of Chef, before then considering the question of whether the applicant possesses the necessary skills in relation to the related but comparatively lower skilled occupation of Cook.

    Skills, qualification and employment background of the applicant - nominated occupation of Chef

14. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da), which requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Chef . 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. In this case one of the two alternative nominated occupations is Chef, ANZSCO[2] 351311. The indicative skill level and the tasks and duties described in ANZSCO are set out as an attachment to this decision. In Australia, ANZSCO indicates either an Australian qualifications framework (AQF) Associate Degree, Advanced Diploma or Diploma. The occupation as listed at ANZSCO Skill Level 2. ANZSCO further indicates that at least three years of relevant experience may substitute for the formal qualifications, and that in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    [2] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary

15. The delegate had regard to the evidence provided by the applicant as to his skills, qualification and employment background. The applicant provided evidence of what was stated to be a diploma level qualification together with a resume outlining approximately 2 ½ years of relevant experience.

16. After making specific investigations concerning the diploma qualification provided by the applicant, a Tecnico Dei Servizi Restorativi obtained over 2011/2012 and awarded on 4 July 2012, the delegate determined that notwithstanding the term “diploma” being used in connection with this qualification, the qualification did not rank with an Australian AQF diploma, and as a equivalent of senior secondary schooling at year 12 level as part of the Italian (vocational) schooling system, the applicant’s qualification was closer to the level of an AQF Certificate II or Certificate III. The delegate also gave no weight to the applicant’s claim to have worked as a pastry chef for four months in 2011 in Italy, as commis chef for one months in the United Kingdom and as a sous chef for three months in Italy between June and September 2012, as the delegate considered this period coincided with the applicant’s completion of the vocational high school qualification.

17. In addition to the applicant’s qualification from Italy, the applicant also provided evidence of having undertaken and completed a Certificate III in Commercial Cookery at the Chisholm Institute in Melbourne on 4 March 2015, with a significant number of units indicating RPL (recognition of prior learning).

18. The evidence before the Tribunal in relation to the applicant’s employment history, which includes certain of the evidence that had been before the delegate, constitutes the following:

EMPLOYMENT	DATE	TASKS as claimed	REFEREED	MONTHS (relevant to Chef)
Red Hill Epicurean Centre (Vic)	20/10/2014 to Sept 2015	Chef de partie - café section and pizza	Y	11
Palazzo Versace (Qld)	14/11/2013 to 01/03/2014	Chef de partie - pastry section	Y	4
Red Hill Epicurean Centre (Vic)	25/03/2013 to 25/09/2013	Senior chef de partie	Y	6
Mattatoio Pizza & Carni	19/11/2012 to 16/03/2013	Senior chef de partie	Y	5
Villa San Marco (Italy)	15/08/2012 to 30/09/2012	Sous chef	Y	1
Smith & Western Restaurant (UK)	10/2011	Commis chef	3 weeks work experience	1
Hotel Mara (Italy)	20/05/2011 to 20/09/2011	Pastry Chef	-4-
L'Oasi del Calanchi	1/06/2010 to 30/09/2010	Pizza Maker Aid	Y	-4-
TOTAL MONTHS (relevant to Chef)	27

1. The evidence provided by the applicant and by Mr Craig Regan on behalf of the standard business sponsor was consistent and persuasive as to the applicant’s tasks and duties within the Red Hill Epicurean Centre for a six month period in 2013 and on an ongoing basis since October 2014, and the tasks and duties described throughout this period now amounting to some 15 months are squarely commensurate with those described in the ANZSCO for the occupation of Chef. Other refereed employment experience from the applicant’s employment as a Chef in Queensland (four months) and refereed employment experience as a Chef in Italy amounting to around six months bring the total amount of employment experience of the applicant in the nominated occupation of Chef to some 27 months.

2. The evidence of Mr Regan as a standard business sponsor/nominator is that the reality in his part of the hospitality industry specialising in Italian cuisine is that it is very common for persons to be employed as specialist Italian chefs without any formal qualification, and his own business certainly did not require this. He stated that it was far more important to identify persons such as the applicant who have the skills, the commitment and the repertoire to design menus and recipes within them in the rich tradition of Italian cuisine. He stated that the applicant himself has an innate capacity in this regard which is a product of a combination of his formal training, his employment experience and indeed his cultural background. He further stated that many potential job applicants may well possess the paperwork and yet be unable to perform the role that the applicant performs in his specialist Italian restaurant.

3. Whilst the applicant now possesses a Certificate III in Commercial Cookery, the applicant does not possess a hospitality trade qualification at at least diploma level as specified in ANZSCO for the occupation of Chef. In this regard the Tribunal concurs with the Department’s conclusions in relation to the applicant’s Italian qualification, which whilst hospitality specific cannot on any reading be regarded as the equivalent of an AQF diploma qualification.

4. On the basis of the evidence before it, the applicant possesses some 27 months of specific employment experience relevant to the occupation of chef which is short of the 36 months (three years) as also specified in ANZSCO for the occupation of chef in lieu of formal qualifications

5. The Tribunal acknowledges that the classifications contained within ANZSCO are intended merely as a guide, and that it would be improper to apply ANZSCO classification codes strictly. It is important to note that ANZSCO itself does not purport to definitively or prescriptively lay out the expectations for qualifications and experience that would qualify a professional, to perform any nominated role at the appropriate level of skills and ability. Ultimately, the Tribunal must consider the specific occupation which is in fact been nominated by the standard business sponsor. In this process, it would be erroneous to elevate ANZSCO to the level of a regulatory criterion, and the Tribunal approaches its task by treating ANZSCO as an indicative guide, albeit a consideration very relevant to its determination concerning the applicant’s skills to perform the occupation of Chef.

6. The Tribunal is satisfied that the nominated occupation is commensurate with that of a Chef as described in ANZSCO. Taking the indications contained within ANZSCO into careful consideration, and assessing the applicant’s background cumulatively by reference to a combination of formal qualifications, approximately 2 years of Italian specialist Chef experience and some five years of overall experience with Italian cuisine in the hospitality industry in both Italy and Australia, taken together with the specific needs of the standard business sponsor concerning the nominated position of Chef in the Red Hill Epicurean Centre, the Tribunal has concluded that the applicant does indeed possess the necessary combination of skills qualification and employment background necessary to perform the tasks required to be performed as a chef in the Red Hill Epicurean Centre.

7. In respect of the nominated occupation of chef, the Tribunal accordingly concludes that the applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant - nominated occupation of Cook

8. The indicative skill level and the tasks and duties described in ANZSCO for Cook are also set out as an attachment to this decision. In Australia, ANZSCO indicates either an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV. The occupation as listed at ANZSCO Skill Level 3. ANZSCO further indicates that at least three years of relevant experience may substitute for the formal qualifications, and that in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

9. The Tribunal refers to and repeats its findings made above in relation to the applicant’s employment background and for essentially the same reasons the Tribunal finds that the applicant possesses the skills, qualification and employment background to perform the lesser skilled occupation of Cook for which he has also been nominated. In this regard, although the Tribunal has been unable to find on the evidence that the applicant has amassed 36 months of experience at the high level skilled occupation of chef, there is no question in the Tribunal’s mind that the refereed employment experience of the applicant amounts to at least 36 months at at least the level prescribed in ANZSCO for the lower skilled occupation of Cook. Taking this together with the applicant now having attained a Certificate III in Commercial Cookery, albeit largely through RPL and not apparently involving two years of on-the-job training, a holistic view of the applicant’s resume clearly indicates the necessary skills to perform at least at the level of Cook.

10. In respect of the nominated occupation of Cook, the Tribunal accordingly concludes that the applicant meets the requirements of cl.457.223(4)(da).

    CONCLUSIONS

11. Having regard to the evidence concerning the operations of the Re the d Hill Epicurean Centre, it is evident that a business of this nature will have a genuine need for both the higher level occupation of chef and the lower level occupation of Cook. As noted above, two separate nominations concerning the one visa applicant coexist at present, and each have separately be considered and approved under the terms of r.2.72 which include criteria relating to the position associated with each nominated occupation being genuine.

12. The Tribunal has concluded that this visa applicant has demonstrated a capacity to perform both alternative nominated occupations of Chef and of Cook. It will be a matter for the standard business sponsor upon advice to consider which is the more suitable and appropriate occupation to which to link the visa application upon remittal by reference to the business sponsor’s particular needs.

13. 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

14. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Don Lucas
    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.

    ATTACHMENT 2 – ANZSCO UNIT GROUP 3513 - CHEFS

    
    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

    Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

    In Australia:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oplanning menus, estimating food and labour costs, and ordering food supplies

    omonitoring quality of dishes at all stages of preparation and presentation

    odiscussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    odemonstrating techniques and advising on cooking procedures

    opreparing and cooking food

    oexplaining and enforcing hygiene regulations

    omay select and train staff

    omay freeze and preserve foods

    
    Occupation:

    351311 Chef

    
    351311 CHEF

    
    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

    Specialisations:

    Chef de Partie
    Commis Chef
    Demi Chef
    Second Chef
    Sous Chef

    ATTACHMENT 3 ANZSCO UNIT GROUP 3514 - COOKS

    COOKS prepare, season and cook food in dining and catering establishments.

    Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Tasks Include:

    oexamining foodstuffs to ensure quality

    oregulating temperatures of ovens, grills and other cooking equipment

    opreparing and cooking food

    oseasoning food during cooking

    oportioning food, placing it on plates, and adding gravies, sauces and garnishes

    ostoring food in temperature controlled facilities

    opreparing food to meet special dietary requirements

    omay plan menus and estimate food requirements

    omay train other kitchen staff and apprentices

    
    Occupation:

    351411 Cook

    
    351411 COOK

    
    Prepares, seasons and cooks food in a dining or catering establishment.

    Skill Level: 3