1500245 (Migration)

This matter concerned an appeal by a visa applicant against a decision that she did not meet the requirements of subclause 457.223(4)(da) of the Migration Regulations 1994, which pertains to having the necessary skills, qualifications, and employment background for a nominated occupation. The nominated occupation was ‘Café or Restaurant Manager’. The Tribunal was satisfied that a new nomination had been lodged and was still being processed.

The primary legal issue before the Tribunal was whether the applicant possessed the requisite skills, qualifications, and employment background to perform the tasks of a ‘Café or Restaurant Manager’, as required by subclause 457.223(4)(da). This involved assessing the applicant's work experience against the duties and skill level indicated in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for that role, and considering whether any specific demonstration of skills had been requested by the delegate.

The Tribunal reasoned that while ANZSCO provides guidance, it is not binding and a narrow matching process is insufficient. It applied the principle from *Joshi v MIMIA* that the correct approach involves ascertaining an applicant's attributes and how they are applied in the workplace. The Tribunal found that the applicant's extensive experience as a senior manager in retail, and subsequently as a manager in fine dining establishments and restaurants in Canada, along with her recent roles in Australian hospitality settings, demonstrated a strong foundation of management skills directly relevant to the nominated occupation. This included responsibilities such as staff management, menu planning, financial record keeping, and compliance with health and safety regulations. The Tribunal also noted that the delegate had not requested the applicant demonstrate her skills in any particular manner as permitted by subclause 457.223(4)(e).

Consequently, the Tribunal was satisfied that the applicant met the criteria under subclause 457.223(4)(da). The Tribunal remitted the application for a Temporary Business Entry (Class UC) visa for reconsideration, directing that the applicant meets this specific criterion.