1500245 (Migration)

[2016] AATA 3745

1500245 (Migration) [2016] AATA 3745 (20 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Andrea Kwong

CASE NUMBER:  1500245

DIBP REFERENCE(S):  BCC2014/2766566

MEMBER:Karen Synon

DATE:20 April 2016

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 20 April 2016 at 12:41pm

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 20 October 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 18 December 2014 on the basis that cl.457.223(4)(da) was not met because the applicant did not demonstrate the necessary skills, qualifications and employment background necessary for the nominated occupation of Café or Restaurant Manager.

5. The applicant applied for review of the primary decision on 7 January 2015 and provided a copy of the department’s decision to the Tribunal.

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

7. On 1 February 2016 the Tribunal wrote to the applicant in accordance with the provisions of s.359A and s.359(2) of the Migration Act. The applicant was invited to comment on or respond to information that she was not the subject of an approved nomination by a standard business sponsor as information on the Department Integrated Client Service Environment database (ICSE) indicted that a previous nomination relating to the applicant was approved on 19 September 2014 and subject, to the terms of r.2.75, this nomination ceased on 19 September 2015.

8. In the same letter the applicant was also invited, in accordance with the provisions of s.359(2), to provide the following information in writing.

   Information which demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased, in accordance with c.457.223(4)(a), or that there is a pending application in relation to you for such a nomination;

   On the assumption that you will be identified in an approved nomination of an occupation, additional information concerning your qualifications and your employment experience indicating that you possess the skills necessary to perform the nominated occupation of Café or Restaurant Manager.

9. Relevantly, on 15 February 2016 the applicant’s representative advised that a new nomination in respect of the applicant had been lodged on 11 February 2016.  Information about the applicant’s relevant work experience was provided and is considered below.

10. The applicant appeared before the Tribunal on 20 April 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Daniel Jesser by telephone.  The applicant had organised all of her previous employers (including her employers located in Canada) and her current employer to be available to give evidence via telephone however, after taking the applicant’s evidence and that of Mr Jesser, the Tribunal did not consider this necessary.

11. The applicant was represented in relation to the review by her registered migration agent who was present throughout the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case are whether the applicant meets the requirements of cl.457.223(4)(da) of the Regulations, which provide:

   (4) The applicant meets the requirements of this subclause if:

   … the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

2. Firstly, the Tribunal notes that cl.457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

3. The last nomination expired on 14 September 2015.  The Tribunal has proceeded to decision as it is satisfied a new nomination was lodged with the department on 16 February 2016 and is still being processed.

   Skills, qualification and employment background of the applicant

4. 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 this case the nominated occupation is ‘Café or Restaurant Manager’.

5. The Regulations do not specify any particular manner in which these skills and experience are to be demonstrated.  While cognisant that the Tribunal is not bound by department policy, the Tribunal has had regard to the following, relevant department policy contained in PAM3:

   Qualifications and experience

   110  Assessment against the nominated occupation in ANZSCO

   …110.2      For nominations made on or after 1 July 2010

   Under regulation 2.72(10)(e)(iv), the qualifications and experience of the person nominated to fill the occupation, should be commensurate with the qualifications and experience specified:

   ·for the occupation in the relevant ANZSCO code or

   ·if there is no ANZSCO code for the nominated occupation, the occupation in the legislative instrument for the purpose of regulation 2.72(10)(aa).

   Demonstration of skills

   116      May be required

   Clause 457.223(4)(e) provides that officers may require the applicant to demonstrate that they have the skills and experience that are necessary to perform the nominated occupation. If an applicant is required to demonstrate these skills and experience, officers are to specify the manner in which this is to occur…

   It is departmental policy that, if TRA supports the provision of a 457 visa skills assessment for the nominated occupation and passport country of the visa applicant, the applicant will be required to demonstrate that they meet 457.223(4)(e) by providing evidence of having completed a 457 visa skills assessment…

6. The information before the Tribunal is that the applicant holds a passport of Canada.

7. The Tribunal notes that Trades Recognition Australia does not specify the occupation of ‘Café or Restaurant Manager as a nominated occupation. [1]

   [1]>

   The Tribunal notes that the wording of cl.457.223(4)(e) states that if the Minister requires the applicant to demonstrate that she has the skills necessary to perform the occupation that the applicant demonstrates he has those skills in the manner specified by the Minister. (Tribunal’s emphasis).  In the present case, information on the department file and contained in the primary decision do not record that the delegate requested the applicant demonstrate, in any particular manner, the skills in necessary to perform the nominated position of Café or Restaurant Manager’.  The delegate rather found, on the basis of the evidence and information provided, that the applicant did not demonstrate she had the skills “considered necessary to perform the tasks of the nomination occupation”.

8. In making his decision the delegate noted the occupation’s indicative qualifications and tasks set out in The Australian and New Zealand Standard Classification of Occupations (ANZSCO).  ANZSCO is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Café or Restaurant Manager’.  However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.

9. In considering the ANZSCO definition and tasks for the occupation of ‘Café or Restaurant Manager’ (Code 141111), which is part of the Unit Group 1411 ‘Café and Restaurant Managers’; it records the indicative skill level in Australia as:

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

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

10. The specific occupation of ‘Café or Restaurant Manager’ is described as “organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services”.

11. The tasks of the occupations within this Unit Group are listed in ANZSCO as including:

    ·     planning menus in consultation with Chefs

    ·     planning and organising special functions

    ·     arranging the purchasing and pricing of goods according to budget

    ·     maintaining records of stock levels and financial transactions

    ·     ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    ·     conferring with customers to assess their satisfaction with meals and service

    ·     selecting, training and supervising waiting and kitchen staff

    ·     may take reservations, greet guests and assist in taking orders

12. In reaching a level of satisfaction as to the applicant’s relevant qualifications and experience the Tribunal accepts that the determination of each application requires more than a narrow matching process between the applicant's tasks and the ANZSCO occupational definition.  In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[2]

    [2] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).

13. The Tribunal took detailed evidence from the applicant about her employment experience including her over 4 years’ experience as a senior manager for a retail outlet in Canada.  After doing so the Tribunal is satisfied that this experience at Le Chateau is relevant, given the responsibilities and skills required, to the current nominated occupation.  In this position the applicant was responsible for the management of a large store of 25,000 ft.² and 20 staff.  Her responsibilities included: staff recruitment, selection and training (for both the floor and stockroom); staff rostering; assisting customers with highly specialised needs; stock control and pricing; security including theft control and relevant staff training; general merchandising and store presentation; merchandising; and workplace safety and regulation compliance.  The Tribunal considers that a number of these responsibilities are directly relevant to the proposed nominated occupation and accepts the applicant’s evidence that it was based on this position that she was subsequently appointed as the Manager of West Restaurant Bar, also in Canada.  This was[3] both a fine dining establishment and the bar located in downtown Calgary.  The applicant at this stage had decided to change industries to learn more and establish itself in the hospitality sector.  This was a large venue of 3 floors which sat 300 people.  The applicant’s responsibilities in this role included managing the wait and kitchen staff; developing menus in conjunction with the chefs and bar managers; staff rostering; financial record keeping; staff recruitment, hiring, training and firing; planning of special functions; and stock management of both alcohol and food.  The applicant provided written references attesting to her relevant work experience in Canada.  The applicant worked for 49 months as a store manager at Le Château and for 16 months as a Manager at West Restaurant and Bar.

    [3] The venue is now closed but the Tribunal has reviewed old websites and reviews that corroborate the applicant’s evidence

14. Since arriving in Australia the applicant has worked in a number of hospitality related management positions firstly on a Working Holiday visa and subsequently on a bridging visa.  This includes two months at the Noddle Box at Chadstone which, unlike some other Noodle Box outlets, had its own indoor seating and later James Squire, a restaurant and bar at Docklands.  After this she commenced work at Coffeewise which the applicant conceded is a takeaway outlet.  Nonetheless the Tribunal considers the applicant’s responsibilities and her skills further enhanced in this position to be wholly relevant to her nominated occupation.

15. It became obvious throughout the hearing that Coffeewise and the applicant’s proposed employer at Grafali Coffee Roasters Café are in fact owned by the same entity being JC Grafali Pty Ltd ATF John and Cindy Family Trust.  The applicant has been employed by Coffeewise as a Manager for a total period of 15 months.  In this position she has been responsible for recruitment, selection, hiring, training and rostering of staff; food and occupational health and safety; budgeting and product pricing; cash takes and financial record keeping; and all overall management.  Coffee wise has 13 employees comprising both sales and kitchen staff.

16. The applicant described the Grafali Coffee Roasting Café as a small cafe located in Bridge Road, Richmond which sells meals and specialised coffee and has indoor and outdoor seating areas that can accommodate approximately 50 customers at a time.  It has 10 staff. No one is currently in the manager’s position although Daniel Jesser as head chef takes most of the responsibility.  The cafe is open 7 days a week until 4pm and the applicant’s responsibilities included (during her previous 4 months employment ) and are proposed to include, should she be granted the visa: staff recruitment, selection, hiring and training; maintaining stock levels and ordering stock; maintaining good relationships with suppliers; menu planning in coordination with the chef; coordination of the administrative side of catering and functions (the cafe is located across the road from the Epworth Hospital ) and all general management of staff and café.

17. The Tribunal took witness evidence from Mr Daniel Jesser who has worked closely with the applicant in his role as head chef and who is currently negotiating the purchase of part or all of the business of Grafali Coffee Roasters Café from Mr John Tan who now has 100% ownership the business.  Mr Jesser spoke highly of the applicant’s skills and experience and her very capable management style.  He broadly gave the same evidence in relation to the applicant’s proposed responsibilities in the position of Café Manager.

18. After considering all the evidence before it the Tribunal is satisfied that the applicant has in excess of 3 years relevant work experience as a Manager in the hospitality industry and more than 4 years relevant experience in a senior management role in a different sector which build her foundational management skills and both informed her subsequent roles and which she relied upon to be appointed as a manager of a large, established restaurant.

19. Therefore, based on the evidence before it of the applicant’s relevant employment experience in excess of 3 years the Tribunal is satisfied the applicant has demonstrated the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of ‘Café or Restaurant Manager’ and that specifically she has the skills and experience to ‘organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services’.

20. .As such the Tribunal is satisfied that the applicant has the employment background it considers necessary to perform the tasks of her nominated occupation of Café or Restaurant Manager.

21. Consequently Tribunal is satisfied that the applicant meets cl.457.223(4)(da).

22. Given this finding, 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

23. 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.

    Karen Synon
    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

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    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.