1505969 (Migration)

1505969 (Migration) [2016] AATA 4504 (13 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Brooks Brantley Carretta
Miss Emilia Porriello
CASE NUMBER:  1505969
DIBP REFERENCE(S):  BCC2015/177062
MEMBER:D. Dimitriadis
DATE:13 October 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 13 October 2016 at 5:10pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 16 January 2015.
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 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.
The delegate refused to grant the visas on 15 April 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the first named applicant (the applicant) has the skills, qualifications and employment background to perform the tasks of the nominated occupation.
The applicant appeared before the Tribunal on 12 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Leonardo Di Vincenzo.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the visa application, the applicant stated that his sponsoring employer (sponsor) is Nomad Brewing Company Pty Ltd. The applicant has a high school diploma and his trade or professional qualifications are ‘Brewing Science and Technology Courses at CERB in Italy”. The applicant undertook training at three breweries, two in Italy and one in the United States. The applicant stated that his special skills are ‘Head Brewer/Production Manager’.
The applicant stated that his past employment was as follows:
·    Head Brewer at Eataly Rome from 30 May 2012 to 25 February 2013 and the duties of the position were brewing operations, facility management and beer program co-ordinator;
·    Head Brewer at Eataly New York City from 3 March 2011 to 20 May 2012 and the duties of the position were brewing operations and facility management;
·    Brewer/Pilot Plant Manager at Birra del Borgo from 1 March 2009 to 28 February 2011 and the duties of the position were day to day operations, pilot plant research and development manager;
·    Brewer/trainee at Dogfish Head brewery from 1 May 2010 to 30 May 2010 and the duties of the position were brewing technology training and assisting brewing operations;
·    Brewer/trainee at Birra Baladin from 1 March 2010 to 30 March 2010 and the duties of the position were brewing technology training and assisting brewing operations;
·    Bartender at Bir & Fud Restaurant from 9 January 2008 to 13 February 2009 where the applicant was a bartender and cellar manager.
The visa applicant stated that the base rate of pay for the nominated position is $55,000 with guaranteed annual earnings of $55,000.
The applicant provided a number of documents to the Department of Immigration (the Department) including copies of the following:
·The applicant’s curriculum vitae;
·Bank statements in the name of the applicant showing payments by ‘Experienceit’ on 10 April 2014 and 5 May 2014;
·Undated reference dated from Leonardo Di Vincenzo of Birra del Borgo;
·Reference dated 3 February 2015 from Birrificio Baladin.
On 9 February 2015 the Department wrote to the applicant and requested further evidence of his qualifications.
The applicant provided to the Department a Certificate of Attendance (in Italian and English) dated 30 October 2009 from the University of Perugia at the Italian Brewing Research Centre (CERB) stating that the applicant completed a training course ‘How to become a brewer’.
At the time of lodging the application for review, the applicant provided a copy of the delegate’s decision record.
On 20 July 2016 the Tribunal wrote to the applicants and invited them to provide information that there is a current approved nomination in relation to the applicant and information to demonstrate that the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
On 2 August 2016 the Tribunal received an email from the representative who provided a number of documents including copies of the following:
·Approval by the Department dated 5 April 2016 of Nomads Brewing Company Pty Ltd ATF Northern Beaches Brewery as a standard business sponsor for five years;
·Approval by the Department dated 6 April 2016 of a nomination by Nomads Brewing Company Pty Ltd ATF Northern Beaches Brewery of the occupation of Production Manager (Manufacturing) (ANZSCO 133512) in relation to the applicant;
·Curriculum vitae;
·Reference dated 29 July 2016 from Kerrie Abba, General Manager and Owner of Nomad Brewing Company stating that the applicant worked as a Production Manager/ Head Brewer from 1 October 2014 to 20 August 2015;
·Payroll activity details for the applicant with the sponsor;
·Reference dated 1 April 2016 from Nicola Farinetti of Eataly New York City stating that the applicant worked as a full-time Brewery Manager at two different production and retail locations and these were Eataly NYC, U.S.A. from 3 April 2011 to 25 April 2012 and Eataly Rome, Italy from 4 May 2012 to 4 February 2014.
·Letter of employment with Eataly New York;
·Payslips from Eataly NY from 13 June 2011 to 18 December 2011;
·Project based employment contract dated 1 January 2013 between the applicant and Eataly Distribuzione SRL from 1 January 2013 to 31 December 2013;
·Summary of payslips dated June 2012 and December 2012 from Eataly Distribuzione SRL showing the date of the employment contract is from 1 June 2012 to 31 December 2012;
·Summary of payslips dated July 2013 and October 2013 from Eataly Distribuzione SRL showing the date of the employment contract is from 1 January 2013 to 31 December 2013;
·Employment reference dated 6 April 2016 from Birra del Borgo Srl;
·Payslips from Birra del Borgo.
The Department’s ICSE records show that a nomination of the occupation of Production Manager (Manufacturing) in relation to the applicant by Nomads Brewing Company Pty Ltd ATF Northern Beaches Brewery was approved on 6 April 2016.
In a submission dated 2 August 2016, the representative stated that the applicant has more than five years of experience in brewery and production management and submitted that the applicant has the relevant skills to perform the tasks of a Production Manager (Manufacturing). The representative stated that the applicant was employed at Birra del Borgo SRL from 1 March 2009 to 20 March 2011 as a full-time Production and Pilot Plant Manager/Head Brewer. The representative stated that Birra del Borgo is an Italian brewery founded in 2005 and is one of the leading craft breweries. The representative set out the duties and responsibilities of the applicant at Birra del Borgo and stated that they are consistent with the tasks of a Production Manager (Manufacturing). In the employment reference from Mr Leonardo Di Vincenzo of Birra del Borgo Srl, the applicant’s duties and responsibilities were set out as follows:
oDay to day brewing and packaging operations management;
oQuality control and laboratory testing management;
oResearch and development of beer recipes and production techniques in relation to market placement of new products, overseeing feasibility and cost minimisation;
oPlanning and coordination of scheduled management meetings between interdependent departments within the production facility/brewery;
oNew staff orientation and training management;
oProduction facility staff shift and performance management;
oMachinery maintenance and operation scheduling and management;
oDirecting and managing acquisition of new equipment for programmed expansions;
oOccupational safety protocols and procedures management.
Mr Di Vincenzo stated that the applicant has represented Birra del Borgo as a worldwide ambassador and is held in high esteem. Mr Di Vincenzo stated that the applicant has participated and successfully directed projects as production manager and Head Brewer in collaboration with Dogfish Head Brewery (U.S.A.) and Birra Baladin (Italy) at two different production sites/breweries, Eataly Birreria New York City, U.S.A. and Eataly Birreria Rome, Italy.
Mr Di Vincenzo attended the hearing in person and gave evidence about the skills and experience of the applicant. Mr Di Vincenzo is the founder of Birra del Borgo and is also a partner in an Italian business that is a fifty per cent shareholder of the sponsor. The applicant was employed in 2009 to take on the role of Production Manager and brewery quality control. The applicant’s role was to lead all the other brewers who worked there. The applicant worked for Birra del Borgo until 2011 when they commenced a cooperation with Eataly and they collaborated on the beer side of the business. Mr Di Vincenzo gave evidence about the role of the applicant at Eataly in the U.S.A. and in Italy.
Mr Di Vincenzo stated that he comes to Australia two or three times a year to check on the business which is based in Brookvale. He stated that the applicant is the perfect person to lead the other brewers and has great skills and can solve the different problems that arise. The applicant has to keep the equipment running and he has to work with the suppliers. Mr Di Vincenzo stated that it is because the applicant was involved with the sponsor that he decided to invest in the business.
In his submission the representative stated that the applicant worked as a full-time Brewmaster (Brewery Manager) at Eataly New York City from 3 April 2011 to 25 April 2012, and with his previous experience in brewery and production management, the applicant managed and directed the beer production facilities, from designing and installation to production and management. The applicant then worked at Eataly Rome from 4 May 2012 to 4 February 2014 as a full-time Brewery Manager from 4 May 2012 to 4 February 2014. The applicant was responsible for planning and supervising production facilities and the actual production of beer, ensuring quality and quantity. The representative set out the duties and responsibilities of the applicant at Eataly New York City and Eataly Rome and stated that they are consistent with the tasks of a Production Manager (Manufacturing).
In the reference from Nicola Farinetti of Eataly U.S.A. she set out the duties of the applicant at both Eataly NYC U.S.A. and Eataly Rome, Italy. The applicant’s role was to manage and direct the beer production facilities that were designed and installed following his recommendations which proved to be efficient and profitable. In addition to managing both production plants, the applicant also consulted and assisted with the opening of two locations, Eataly Bari and Eataly Chicago and trained staff and acquired and installed new machinery.
Nicola Farinetti stated that the duties and responsibilities of the applicant as a full-time Brewery Manager included the following:
·Designing, planning, acquiring and installation of new equipment (e.g. brewhouse, tanks, pumps and plumbing materials);
·Production forecasting, scheduling, cost efficiency and feasibility;
·Operations management, quality control, assurance strategy and standardisation;
·Planning meetings between different departments within Eataly to discuss strategies and staffing needs;
·Production of manufacturing records and documents for product traceability, cost management and excise tax regulations and due dates;
·Occupational safety protocol training and management;
·Staff efficiency and performance reports to owners.
The representative stated in his submission that the applicant began working in Australia for the sponsor on 1 October 2014 as a full-time Production Manager/Head Brewer. The representative stated that duties and responsibilities of the applicant at the sponsor are consistent with the tasks of a Production Manager (Manufacturing).
The sponsor provided a reference and set out the role of the applicant and his duties and responsibilities which include controlling and operating their state of the art production plant including brewing equipment, kegging and bottling machines and associated machinery; monitoring all production output and costs; leading a team of assistant brewers; preparing regular production reports for management; ability to supervise and guide a brewing/production team; overseeing the operation and management of an automated bottling and kegging line; undertaking regular planning for routine maintenance and safety checks and supervision of maintenance; experience brewing a wide range of brewing styles; technical experience undertaking a sour mash; and undertaking and overseeing a barrel aging program and being knowledgeable about barrel maintenance.
At the hearing the representative provided translations of payslips from Birra del Borgo and detailed printed information about Birra del Borgo, Eataly, the curriculum vitae of Leonardo Di Vincenzo and the supply of equipment to the sponsor.
The applicant gave detailed evidence at the hearing about his employment and experience as a Production Manager/ Head Brewer and the employers for whom he had worked in these positions. The employers were Birra del Borgo in Italy, Eataly New York City and Eataly Rome, and the sponsor. The applicant stated that he was hired as a manager by Birra del Borgo in 2009 after he trained there and did an internship in 2008. His role as a manager was to oversee and direct production at the brewery. His role was to direct and oversee phases of production and to purchase equipment and to maintain the equipment. The applicant was also involved in the scheduling of production as well as promoting the brewery through events and conferences. He also had contact with engineering companies which supplied the stainless steel tanks, the electrical equipment, the compressed air equipment and the bottling machines. As the brewery grew, they needed to get new and bigger machinery which was part of his role. After two years at Birra del Borgo, the applicant was offered the opportunity of taking on bigger responsibility in March 2011 and he went to New York City where he built and set up a brewery at Eataly NYC. The applicant acquired new machinery, selected the staff and developed recipes for different beer. The applicant was involved in producing four different beers and he also produced seasonal beer every month. Eataly is a large company and he had to interact with a lot of managers world-wide. The applicant was at Eataly NYC for one year and one month and following the success of the New York City brewery, the company decided to open a brewery in Rome, Italy and the applicant relocated there. The applicant undertook the installation, planning and commissioning of the brewery. He also trained staff and he travelled back to New York to check on the status of the brewery there. In Italy, it was the applicant’s decision whether to purchase the equipment for the Rome brewery. His role was to negotiate with equipment suppliers, receive quotes and then advise the owners as to which equipment to purchase. He also planned and installed equipment in Eataly Chicago whilst employed by Eataly Rome.
The applicant addressed each of the tasks of a Production Manager as set out in ANZSCO and gave detailed evidence of his relevant experience.
The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da).
Skills, qualification and employment background of the applicant
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 Production Manager (Manufacturing).
In deciding whether an applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal is guided by the skill level as set out in ANZSCO which is an indicative guide. The Tribunal finds that ANZSCO is an appropriate measure of the skills and qualifications of a Production Manager (Manufacturing).
In determining the skills and qualifications required for a Production Manager (Manufacturing), ANZSCO states that most occupations in this unit group of Production Managers have a level of skill commensurate with a bachelor degree or higher qualification. The applicant does not have a bachelor degree or higher qualification. He completed high school according to his evidence and he undertook a course at CERB. The length of that course was two days according to the applicant’s evidence at the hearing.
The Tribunal is satisfied that the applicant does not have the formal qualifications of a bachelor degree or higher qualification to perform the nominated occupation of Production Manager (Manufacturing).
ANZSCO states that at least five years of relevant experience may substitute for the formal qualification and in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
The Tribunal will consider whether the applicant has at least five years of relevant experience.
The Tribunal is satisfied on the evidence that the applicant worked with the sponsor as Production Manager/Head Brewer from 1 October 2014 to 20 August 2015. The Tribunal is satisfied based on the applicant’s oral evidence and the reference from the sponsor that the duties that the applicant undertook at the sponsor are relevant to and consistent with the tasks of a Production Manager (Manufacturing) as set out in ANZSCO. The Tribunal is also satisfied that the position of Production Manager/ Head Brewer is available to the applicant, there is a current approved nomination by the sponsor of the occupation of Production Manager (Manufacturing) in relation to the applicant and the applicant wishes to work in that position for the sponsor.
The Tribunal is also satisfied on the evidence that the applicant has worked with Eataly NYC U.S.A. from 3 April 2011 to 25 April 2012 and with Eataly Rome, Italy from 4 May 2012 to 4 February 2014. The Tribunal is satisfied based on the applicant’s oral evidence and the reference from Nicola Farinetti of Eataly New York City that the duties that the applicant undertook at Eataly NYC and Eataly Rome are relevant to and consistent with the tasks of a Production Manager (Manufacturing) as set out in ANZSCO.

The Tribunal is also satisfied on the evidence that the applicant worked with Birra del Borgo from 1 March 2009 to 20 March 2011 as a full-time Production and Pilot Plant Manager/Head Brewer. The Tribunal is satisfied based on the applicant’s oral evidence, the oral evidence of Mr Di Vincenzo and the reference from Mr Di Vincenzo of Birra del Borgo that the duties that the applicant undertook at Birra del Borgo are relevant to and consistent with the tasks of a Production Manager (Manufacturing) as set out in ANZSCO.
The Tribunal is satisfied that the applicant has had at least five years of relevant experience in the nominated occupation which may substitute for the formal qualifications. The Tribunal is satisfied, based on the evidence, that the applicant was employed by the sponsor because of his skills that he exhibited in his employment at Birra del Borgo and at Eataly NYC and Eataly Rome. The Tribunal took detailed evidence from the applicant and found that he gave clear, consistent and credible evidence about his work experience at the sponsor and at the employers Eataly NYC and Eataly Rome as well as at Birra del Borgo.
The Tribunal took evidence from the applicant at the hearing about his training and work experience and Mr Di Vincenzo gave evidence about the applicant’s skills and experience and also stated that it was because the applicant was involved with the sponsor that Mr Di Vincenzo decided to invest in Nomad Brewing Company Pty Ltd.
Based on the evidence, the Tribunal is satisfied that the applicant has worked as a Production Manager/ Head Brewer for 10 months for the sponsor and he worked as a Brewery Manager at Eataly NYC and Eataly Rome for approximately two years and nine months. The applicant worked as a Production and Pilot Plant Manager/Head Brewer for Birra del Borgo for two years. The Tribunal is satisfied that the applicant has undertaken the majority of tasks of a Production Manager (Manufacturing) at the sponsor, Eataly NYC, Eataly Rome and Birra del Borgo.
The Tribunal is therefore satisfied that the applicant has at least five years of relevant experience. ANZSCO states that for a Production Manager (Manufacturing) at least five years of relevant experience may substitute for the formal qualifications listed of a bachelor degree or higher qualification. The applicant does not have the formal qualifications required.
The Tribunal has had regard to the evidence that the sponsor and his previous employers (Birra del Borgo and Eataly NYC and Eataly Rome) are satisfied that the applicant has demonstrated that he has the skills to perform the duties of a Production Manager (Manufacturing). The applicant has provided written references from all his employers and Mr Di Vincenzo attended the hearing in person to give evidence.
The Tribunal considers that the applicant’s relevant experience demonstrates that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Production Manager (Manufacturing).
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
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
The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
D. Dimitriadis
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.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
UNIT GROUP 1335 PRODUCTION MANAGERS

PRODUCTION MANAGERS plan, organise, direct, control and coordinate the production activities of forestry, manufacturing and mining organisations including physical and human resources.
Indicative Skill Level:
In Australia and New Zealand:
Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

Tasks Include:
odetermining, implementing and monitoring production strategies, policies and plans
oplanning details of production activities in terms of output quality and quantity, cost, time available and labour requirements
ocontrolling the operation of production plant and quality procedures through planning of maintenance, designation of operating hours and supply of parts and tools
omonitoring production output and costs, and adjusting processes and resources to minimise costs
oinforming other Managers about production matters
ooverseeing the acquisition and installation of new plant and equipment
odirecting research into production methods, and recommending and implementing initiatives
ocontrolling the preparation of production records and reports
ocoordinating the implementation of occupational health and safety requirements
odirecting staff activities and monitoring their performance

Occupations:
133511 Production Manager (Forestry)
133512 Production Manager (Manufacturing)
133513 Production Manager (Mining)
.....

133512 PRODUCTION MANAGER (MANUFACTURING)

Plans, organises, directs, controls and coordinates the manufacturing activities of an organisation including physical and human resources.
Skill Level: 1
Specialisations:
Operations Manager (Production)
Plant Manager (Manufacturing) (Aus)
Works Manager (Manufacturing) (Aus)
.....

[2016] AATA 4504

13 October 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction