1503561 (Migration)

[2016] AATA 4073

1503561 (Migration) [2016] AATA 4073 (1 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Aoba Pty Ltd

VISA APPLICANT:  Mr Zongjie Li

CASE NUMBER:  1503561

DIBP REFERENCE(S):  BCC2014/3402428

MEMBER:David Dobell

DATE:1 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa

Statement made on 01 July 2016 at 3:03pm

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 11 December 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 24 February 2015 on the basis that cl.457.223(4)(da) was not met.

5. The review applicant appeared before the Tribunal by phone on 1 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by its registered migration agent, who attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The following documentary evidence is on the Department file:

   • Review applicant, submission, business need
   • review applicant, sushi bar, organisation chart
   • Contract of employment, Miumius and NAATI translation
   • Letter of appreciation, Miumius, and NAATI translation
   • Untranslated documents
   • Demolition photos
   • Reference, Ikea Shanghai, for visa applicant, 22 August 2014, as sales manager
   • Reference, MiuMius Mansion, for visa applicant, 28 August 2014, part time photographer
   • Resume/work experience, visa applicant,
   • Diploma in International Trade, Shanghai
   • Photographer
   • Sales assistant
   • Ticket officer
   • Graduation Certificate, Diploma in International Trade and academic record, visa applicant,  Notary certified copy
   • IELTS test results, visa applicant, 2 December 2014
   • Chinese passport, front page, visa applicant, issued 17 August 2010
   • Visa application

9. The following documentary evidence is on the Tribunal file:

   • Reference, Shanghai Xiaodongbei Catering & Hotel Management (XCM) Co, restaurant manager, 20 June 2016- “since 1 February 2015”
   • Resume, visa applicant:
   • Adds Shanghai XCM Co, February 2015-present (15 months)
   • Payslips 2015-2016, visa applicant, Shanghai XCM Co, and NAATI translation
   • Social Security Statement 2015, visa applicant, and NAATI translation
   • Superannuation statement 2015, visa applicant, and NAATI translation
   • Representative Submission
   • Reference, Shanghai XCM Co, visa applicant, 1 February 2016
   • Labour Contract, Shanghai XCM Co,30 January 2015, Notary certified copy
   • Acknowledgement of nomination received, Department, from review applicant, 10 June 2016
   • Nomination approval, Department, for review applicant, 5 November 2014
   • Decision record, Department, 24 February 2015
   • Based on evidence not satisfied that he had the skills for restaurant manager
   • Notes qualifications and work experience not in that field

10. At the hearing, the review applicant told the Tribunal that he was not related to the visa applicant and he had found his resume online. He said he looked for people here but none were suitable.

11. The Tribunal asked why the visa applicant was suitable. He said that for the last year he has worked in a cafe or restaurant manager position with his current employer.

12. The Tribunal asked why the visa applicant was suitable at the time of visa application in December 2014. He said they were looking for a manager and his photography is very good and they need a good photographer for the food for the menu, and he had stocktake and customer service skills.

13. The Tribunal asked why the visa applicant did not tell the Department that he had started as a cafe or restaurant manager in February 2015, prior to its decision being made. He did not know.

14. The Tribunal referred to the qualifications of the visa applicant. He confirmed he had a Diploma in International Trade. The Tribunal asked how this was relevant to the occupation of cafe or restaurant manager. He said at first that it was irrelevant, and then said that it is to him as they are not a local restaurant and need a bit of ‘overseas culture’.

15. The Tribunal asked again how the qualifications were relevant. He referred to the photography skills of the visa applicant.

16. The Tribunal put to the review applicant the following.  It said it was not satisfied from the oral evidence or the qualification evidence on file that the visa applicant’s qualification was in any way relevant to the occupation of cafe or restaurant manager.

17. Further, it said that, at most the visa applicant has had 15 months experience as a cafe or restaurant manager.

18. It referred to the ANZSCO, which it is using as a guide, and read out what it stated. The Tribunal concluded that it was not satisfied on the evidence before it that he had relevant qualifications or anywhere near the experience required, using ANZSCO as a guide, and as such it was not satisfied that the visa applicant met the requirements of cl.457.223(4)(da).

19. The review applicant had nothing to add.

20. The representative had nothing to add apart from what was in his written submissions.

21. The Tribunal said it had nothing to ask the visa applicant as he would be telling the Tribunal that he had the Diploma, and that he had 15 months experience as a cafe or restaurant manager, which would be merely confirming the evidence of the review applicant to the Tribunal. 

    Skills, qualification and employment background of the applicant

22. 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 cafe or restaurant manager.

23. The Tribunal refers to ANZSCO as a guide to determining the above:

    UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS

    CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.
    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:

    •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

    Occupation: 141111 Cafe or Restaurant Manager

    141111 CAFE OR RESTAURANT MANAGER

    Alternative Titles: Food and Beverage Manager
    Restaurateur
    Organises and controls the operations of a cafe, restaurant or related establishment to provide dining and catering services.

    Fast Food Managers (Aus)/ Quick Service Restaurant Managers (NZ) are excluded from this occupation. Fast Food Managers (Aus) and Quick Service Restaurant Managers (NZ) are included in Occupation 142111 Retail Manager (General)

    Skill Level: 2

    Specialisations:
    Bistro Manager
    Canteen Manager
    Caterer
    Internet Cafe Manager

    See

24. This is a skill level 2 position, and as ANZSCO states, a visa applicant will usually have an Associate Degree, Advanced Diploma or Diploma or equivalent, and this will be in a field of study directly relevant to this occupation.

25. The Tribunal has examined the visa applicant’s academic record on the Department file. This merely states the names of the 23 subjects the visa applicant completed for his Diploma. On the evidence before it, despite the representative’s written submissions the Tribunal cannot be satisfied that the subjects are in any way relevant to the knowledge and skills the visa applicant requires as a cafe or restaurant manager.

26. Thus the Tribunal is not satisfied that the visa applicant has any qualifications relevant to the occupation of cafe or restaurant manager.

27. As to the visa applicant’s employment background as a cafe or restaurant manager, from his resume, he had none at the time of visa application but now has around 15 months of experience in this occupation.

28. ANZSCO suggests that a person should have 3 years relevant experience, which may substitute for the formal qualifications, as a reflection of this being a skills level 2 occupation.

29. Using ANZSCO as a guide, the Tribunal is not satisfied on the evidence before it that any of the visa applicant’s prior employment is relevant to the occupation of cafe or restaurant manager.

30. Using ANZSCO as a guide, the Tribunal is not satisfied that the visa applicant’s 15 months experience as a cafe or restaurant manager is sufficient for it to be satisfied that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, cafe or restaurant manager.

31. For these reasons the applicant does not satisfy the requirements of cl.457.223(4)(da). Hence the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    David Dobell
    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