1502274 (Migration)

[2015] AATA 3054

1502274 (Migration) [2015] AATA 3054 (16 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  McKkr's Pty Ltd

CASE NUMBER:  1502274

DIBP REFERENCE(S):  CLF2015/31715

MEMBER:Jennifer Ciantar

DATE:16 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 16 July 2015 at 4:15pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 January 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 18 July 2014 in the occupational trainee stream. The application was made in respect of Manish Giri (the nominee) for training in the occupation of Chef ANZSCO 351311 for a period of 1 year. It was proposed that the training take place at Alice Springs Resort.

3. The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72I(5)(c) because the nominee had not demonstrated that he has the equivalent of at least 12 months full time experience in the nominated occupation within the 24 months immediately before the application was lodged. The delegate was of the view that the duties of the applicant in his current position were more akin to those of a Restaurant or Café Manager (141111) and not the nominated occupation of Chef (351311). Also, Departmental records indicate the nominee has previously been approved an occupational trainee visa as a Café and Restaurant Manager. The delegate was not satisfied that the nominee would be enhancing his skills in the nominated occupation of Chef.

4. The applicant provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 15 July 2015 to give evidence and present arguments.  

6. For the following reasons, the Tribunal has decided affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Act and Regulations provide for approval of persons as sponsors and nominations of occupations, programs or activities to be undertaken in Australia by prospective holders of Subclass 402 (Training and Research) visas.

8. A nomination of an occupation, program or activity in relation to various visas, including Subclass 402, is made under s.140GB of the Act and r.2.72A of the Regulations.

9. Regulation 2.72I specifies the criteria to be met for a Subclass 402 (Training and Research) visa. An extract of the relevant regulation is attached to this decision.

10. It is not in dispute that there is no evidence that the occupational training proposed is required in order for the nominee to obtain mandatory registration, membership or licencing, and so r.2.72I(4) is not met.

11. It is not in dispute that there is no evidence that the proposed occupational training is supported by an Australian government agency or the nominee’s home country, or that the nominee is required to complete practical experience, research or observation to obtain a qualification from a foreign educational institution, or that he is a current student or recent graduate undertaking research closely related to their course, and so r.2.72I(6) is not met. 

    Does the applicant meet r.2.72I(5)?

12. Relevantly in this case a nomination made on the basis of training to enhance skills must meet r.2.72I(5) which requires, among other things, that the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination.

13. The applicant provided to the Department evidence in relation to the nominee’s qualifications, skills and work experience. The applicant has a Bachelor of Science in Hospitality and Catering Management from Sikkim Manipal University, conferred in February 2012. The nominee’s resume states that from 11 July 2011 to 10 May 2013 the nominee worked as a Commis III part time (10 months part-time = 5 months full-time in last 24 months) at The imperial Hotel New Delhi. His duties were:

    ·prepare mis-en-place as instructed by the immediate supervisor;

    ·prepare product for service as outlined in the work plan schedule;

    ·cook meals within the pre-fixed time limits;

    ·ensure HACCP rules and regulations are followed;

    ·work in the restaurant as well as part-time F&B associate, perform all related tasks.

14. The resume also states that since July 2013 the nominee has worked as a Kitchen Assistant  and F&B Associate (full time 12 months in the last 24 months) at Hilton Double Tree, Alice Springs. His duties are:

    ·responsible for mis-en-place and mis-en-scene;

    ·performs all necessary tasks to serve food and beverage according to the service standards;

    ·handling the preparation of food in bulk preparation;

    ·working in deli making different types of sandwich and burger;

    ·taking care of continental buffet;

    ·welcome guests, check their reservation, escort them to table and ensure they are comfortable at the table.

15. The applicant stated he disagrees with the decision because since graduating in February 2012, the nominee worked first as a Commi chef in India and then at the Hilton Hotel in Alice Springs. In the 2 years prior to the lodgement of the nomination, from 18 July 2012 to 17 July 2014, the nominee has had 12 months of relevant experience. The Tribunal put to the applicant that the nominee’s resume states he worked as a Commi chef for the equivalent of 5 months full time and at the Hilton, he was an a Kitchen Assistant and F&B Associate. The delegate found that the nominee was an occupational trainee in the occupation of Café of Restaurant Manager, which is a different occupation to that of chef.

16. The applicant stated that he believes the resume has an administrative error and that the nominee worked full-time as a Commi chef, as he had graduated from his course in February 2012 and there is no obvious reason why the nominee would have been working part-time unless the position was only available on a part-time basis. The applicant said he had attempted unsuccessfully to contact the nominee today to clarify this point and he could provide the Tribunal with more information. The Tribunal put to the applicant that he has been on notice about the issue since the delegate made the decision in January 2015 and it is hard to understand why, on the day of the hearing some 6 months later, he would be trying to obtain further information. The Tribunal also indicated it was more likely to give weight to the version of the nominee’s resume submitted with the nomination application, as it clearly states that from 11 July 2011 to 10 May 2013 the nominee worked as a Commis III part time ( 10 months part-time = 5 months full-time in last 24 months) at The imperial Hotel New Delhi.

17. The applicant stated that the nominee wants to pursue a career in hotel management in India and he needs experience in 3 streams: cooking, Food and Beverage and front of house. Since coming to Australia he has had relevant experience including working in the kitchen. The Tribunal put to the applicant that as the nominee has been working as a café or restaurant manager, which, in the Tribunal’s opinion, is a different occupation to that of chef, it is hard to accept that the nominee has had sufficient equivalent experience as required by the Regulations. The applicant stated that the nominee’s resume, which sets out his duties in India and at the Hilton, the record of interview conducted by the applicant’s business, the skills assessment and the training plan, both prepared by the applicant’s business, all show that the nominee has performed the duties of a chef. The Tribunal put to the applicant that  the Regulations  require the nominee to have the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates. It seems that the applicant is claiming that the nominee has primarily been performing the tasks of a chef while employed as a Café or Restaurant Manager. The applicant stated that his business was not the sponsor of the nominee while he was employed as a Café or Restaurant Manager. The applicant believes that the nominee has performed the first 4 tasks as set out in ANZSCO for the occupation of Chef, certainly while he was employed as a Commi chef, and his resume indicates that most of his duties at the Hilton also involved working with food.

18. The applicant said he could provide further information about the nominee’s duties if required. The Tribunal indicated again that the applicant has had a considerable period of time to provide further information if he wanted to do so. The Tribunal was unlikely to request further information but would take into account all the available evidence.

    Consideration of Evidence 

19. The Tribunal is not satisfied that the nominee has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination. The relevant period is 18 July 2012 to 17 July 2014. Although there is no supporting reference or other independent documentation, the Tribunal is prepared to accept that from 18 July 2012 to 10 May 2013 the applicant worked part-time as a Commi III (cook) in The imperial Hotel New Delhi. The Tribunal accepts that the occupation of cook has a number of duties similar to that of a chef. The applicant suggested that the nominee had been employed full-time as a cook and there is an administrative error on the resume. The Tribunal does not accept this claim which is speculative, is contradictory to the resume and the Tribunal is of the view that it amounts to an assertion which has been made without any confirmation from the nominee or any supporting evidence. The Tribunal finds that the nominee worked as a cook for the equivalent of 5 months from 18 July 2012 to 10 May 2013.

20. The nominee’s resume indicates that since 11 July 2013 until the date of application, the nominee worked as a Kitchen Assistant and F&B Associate on a full time basis at the Hilton in Alice Springs. The resume lists the nominee’s duties, which are set out in paragraph 14. Although the resume states that the nominee has been working as a Kitchen Assistant and F&B Associate, the delegate’s decision, which was provided to the Tribunal by the applicant, indicates that the nominee has previously been approved for an occupational trainee visa as a Café and Restaurant Manager. However, in any case, the Tribunal is of the view that neither occupation is equivalent to a Chef. The Tribunal also finds that apart from the first duty, the duties listed in the nominee’s resume (see paragraph 13 and 14 above) are not those of a chef as set out in ANZSCO (attached), to which the Tribunal has referred for guidance since the nominated occupation must be an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph: r.2.72I(5)(ba).

21. The Tribunal has considered all the available information including the nominee’s resume and the experience appraisal conducted by the applicant. The appraisal lists most of the tasks of a Chef according to the ANZSCO guide and appraised the nominee’s experience in terms of the amount of time he has spent performing these tasks.  Apart from the task of “preparing and cooking food” for which 6 to 12 months experience is claimed, the nominee’s experience in performing the other tasks is either 1 to 3 months or nil. The Tribunal is of the view that the appraisal conducted by the applicant also indicates that the nominee has not had at least 12 months full-time experience in the occupation to which the nominated occupational training relates, being that of a Chef.

22. Taking into account all the available evidence, the Tribunal accepts that the nominee worked as a cook for the equivalent of 5 months prior to his arrival in Australia and that some of his duties may have been equivalent to the duties of a Chef. The Tribunal also accepts that the nominee has had some food preparation and food handling experience while employed at the Hilton in Alice Springs. However, the evidence indicates that from July 2013 until the date of lodgement of the nomination application, the nominee has performed various duties related to being a kitchen assistant, F&B Associate or Café or Restaurant Manager. The Tribunal does not accept that the nominee has been performing the duties of a chef while employed at the Hilton, Alice Springs. The Tribunal is not satisfied that the nominee has the equivalent of at least 12 months full-time experience as a Chef, which is the occupation to which the occupational training relates, in the 24 months immediately preceding the time of nomination.

23. The Tribunal is not satisfied that the requirements of r.2.72I(5) are met and therefore r.2.72(2) is not met. Given that the requirements of r.2.72I cannot be met in respect of the proposed nomination, approval should be refused under s.140GB of the Act. The delegate’s decision to this effect should be affirmed.

    DECISION

24. The Tribunal affirms the decision not to approve the nomination.

    Jennifer Ciantar
    Member

    
    

    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:

    o   planning menus, estimating food and labour costs, and ordering food supplies

    o   monitoring quality of dishes at all stages of preparation and presentation

    o   discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

    o   demonstrating techniques and advising on cooking procedures

    o   preparing and cooking food

    o   explaining and enforcing hygiene regulations

    o   may select and train staff

    o   may 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 – EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    Regulation 2.72I Criteria for approval of nomination — Subclass 442 (Occupational Trainee) visa

    (1) This regulation applies to a person:

    (a) who is an occupational trainee sponsor ; and

    (b) who, under paragraph 140GB(1)(b) of the Act, has nominated an occupation, a program or an activity in relation to a holder of, or an applicant or a proposed applicant for, a Subclass 442 (Occupational Trainee) visa (the identified visa holder or applicant).

    (2) For subsection 140GB(2) of the Act, and in addition to the criteria set out in regulation 2.72A , the criteria that must be satisfied for the Minister to approve a nomination by the occupational trainee sponsor are the criteria set out in:

    (a) subregulation (3) ; and

    (b) 1 of subregulations (4) , (5) and (6) .

    (3) The Minister is satisfied that the person making the nomination is an occupational trainee sponsor.

    Occupational training required for registration

    (4) The Minister is satisfied that:

    (a) the nominated occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant in relation to the occupation of the identified visa holder or applicant; and

    (b) the registration, membership or licensing is required in order for the identified visa holder or applicant to be employed in the occupation of the identified visa holder or applicant in Australia or in the home country of the identified visa holder or applicant; and(c) the duration of the occupational training is necessary for the identified visa holder or applicant to obtain registration, membership or licensing in Australia or in the home country of the identified visa holder or applicant in relation to the occupation of the identified visa holder or applicant, taking into account the prior experience of the identified visa holder or applicant; and

    (ca) the occupational training is workplace based; and

    (d) the identified visa holder or applicant has appropriate qualifications, experience and English language skills to undertake the occupational training.

    Occupational training to enhance skills

    (5) The Minister is satisfied that:

    (a) the nominated occupational training is:

    (i) a structured workplace training program; and

    (ii) specifically tailored to the training needs of the identified visa holder or applicant; and

    (iii) of a duration that meets the specific training needs of the identified visa holder or applicant; and

    (b) if the nomination was made before 1 July 2010 — the nominated occupational training is in relation to an occupation specified by the Minister in an instrument in writing for this paragraph; and

    [(b) amended by SLI 2010, 133 with effect from 01/07/2010 - LEGEND note][(ba) inserted by SLI 2010, 133 with effect from 01/07/2010 - LEGEND note]

    (ba) if the nomination is made on or after 1 July 2010 — the nominated occupational training is in relation to an occupation specified, with its corresponding 6-digit code, by the Minister in an instrument in writing for this paragraph; and

    (c) the identified visa holder or applicant has the equivalent of at least 12 months full-time experience in the occupation to which the nominated occupational training relates in the 24 months immediately preceding the time of nomination; and

    (d) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.

    Occupational training for capacity building overseas

    (6) The Minister is satisfied that:

    (a) the nominated occupational training is not available in the home country of the identified visa holder or applicant; and

    (b) 1 of the following requirements is met:

    (i) the nominated occupational training is supported by a government agency or the government of a foreign country that is the home country of the identified visa holder or applicant;

    (ii) the identified visa holder or applicant is required to complete a period of no more than 6 months of practical experience, research or observation to obtain a qualification from a foreign educational institution; or

    (iii) the identified visa holder or applicant:

    (A) is a student of a foreign educational institution; or

    (B) has graduated from a foreign educational institution during the 12 months preceding the time of nomination;

    and the nominated occupational training is to undertake research in Australia that is closely related to the course in which the student is or was enrolled at the foreign educational institution; and

    (c) the nominated occupational training is a structured workplace-based training program specifically tailored to the identified visa holder or applicant; and

    (d) the nominated occupational training will give the identified visa holder or applicant additional or enhanced skills in the occupation to which the nominated occupational training relates; and

    (e) the identified visa holder or applicant intends to return to his or her home country after successfully completing the nominated occupational training; and

    (f) the identified visa holder or applicant has appropriate English language skills to undertake the nominated occupational training.