1508293 (Migration)

[2016] AATA 3623

1508293 (Migration) [2016] AATA 3623 (24 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Darren Michael Bradley

CASE NUMBER:  1508293

DIBP REFERENCE(S):  BCC2014/2807076

MEMBER:Lesley Hunt

DATE:24 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 24 March 2016 at 5:34pm

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 23 October 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of cook. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because the applicant did not provide satisfactory evidence of having the skills required for the occupation.

6. The applicant appeared before the Tribunal on 2 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Richard Pace, the applicant’s employer.  

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has the qualifications and skills required for the nominated occupation of cook.

   Skills and qualifications

10. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons): cl.87.234 (a), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application): cl.187.234 (b), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation: cl.187.234 (c).

11. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060, and the occupations and relevant assessing authorities have been specified in IMMI 12/096. For the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.

12. The application was lodged on 23 October 2014. At the time of application the occupation of “cook” was not specified in the classes of exempt persons specified in IMMI 12/060. The evidence from the applicant indicates that his earnings are not equivalent to the current Australian Tax Office top individual income tax rate. The applicant is not the holder of a subclass 444 or 461 visa. He entered Australia on a Working Holiday visa subclass 417; was granted a second working holiday visa on 14 September 2013 and is currently the holder of a Bridging A (Class WA) subclass 010 visa in association with his application for the Class RN Subclass 187 (Regional Sponsored Migration Scheme) visa. The Tribunal finds accordingly that the applicant does not satisfy cl.187.234 (a) of Schedule 2 to the Regulations.

13. As the applicant does not satisfy cl.187.234 (a), the Tribunal considered whether the applicant meets the alternative requirements in cl.187.234 (b). This regulation provides for an application to be approved where the applicant has a suitable skills assessment and other prescribed circumstances are satisfied. In this case the applicant has not submitted a skills assessment from Trades Recognition Australia (TRA), the relevant assessing authority for the occupation of “cook”. The Tribunal finds accordingly that the applicant does not satisfy cl.187.234 (b) of Schedule 2 to the Regulations.

14. The Tribunal then considered whether the applicant has the qualifications set out in the Australian and New Zealand Standard Classification of Occupations (ANZSCO), as provided for by cl.187.234 (c) of Schedule 2 to the Regulations.

15. ANZSCO states that Cooks prepare, season and cook food in dining and catering establishments.  Chefs, Fast Food Cooks and Kitchen-hands are excluded from this unit group. The indicative skill level in Australia is an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV.  ANZSCO also provides that at least three years of relevant experience may substitute for the formal qualifications listed above.

16. The tasks of the occupation “cook” are listed in ANZSCO as follow:

    ·Examining foodstuffs to ensure quality

    ·Regulating temperatures of ovens, grills and other cooking equipment

    ·Preparing and cooking food

    ·Seasoning food during cooking

    ·Portioning food, placing it on plates, and adding gravies, sauces and garnishes

    ·Storing food in temperature controlled facilities

    ·Preparing food to meet special dietary requirements

    ·May plan menus and estimate food requirements

    ·May train other kitchen staff and apprentices. 

17. The applicant’s evidence is that he does not have an AQF Certificate III or its equivalent from the United Kingdom (UK).  However he claims to have fourteen years extensive work experience in the UK and this exceeds the three years required as a substitute for the formal qualifications. 

18. As evidence in this regard the applicant has provided a number of employment references, payslips, group certificates and other documentary evidence of his employment history. In addition he provided the following information to the Tribunal at a hearing on 2 March 2016.

19. The applicant stated that when he made inquiries about lodging the visa application he was advised that he did not have to submit a skills assessment because he had extensive work experience as a cook.  He stated that he currently works at the Rococo restaurant in Noosa and his daily work routine includes planning menus, training kitchen-hands, assisting the head chef, cooking grills, fish, steaks, making salads, placing food on plates, and providing back up to the head chef when required. 

20. The Tribunal referred the applicant to the curriculum vitae he submitted, noting there were some discrepancies between the dates he indicated he was working at the Bar Lounge in the UK, the payslips submitted and information provided in his curriculum vitae.  The applicant undertook to provide a more detailed curriculum vitae and additional independently verifiable evidence corroborating his claim regarding his extensive relevant work experience.

21. The applicant’s employer told the Tribunal that he has 55 staff at the Rococo Restaurant, Noosa and it has a multi-million dollar turnover. He stated that he relies heavily on the applicant to assist in the smooth running of the kitchen.  He stated that the applicant is responsible for cooking and quality control of the food.  He stated that when the restaurant is at its busiest there are 8 working in the kitchen at one time and the applicant cooks meals and watches every single dish to ensure seasoning, tastes and temperatures are right before it is taken out to customers. 

22. The applicant’s curriculum vitae indicate that he has worked as follows.

    ·Dene Hotel from October 2000 to October 2002 as Commis Chef

    ·Living Room Restaurant October 2002 to October 2003 as Junior Chef de Partie

    ·Ego Mediterranean Restaurant September 2003 to September 2004 as Chef de Partie

    ·Upstairs at the Grill Restaurant September 2004 to May 2005 as Chef de Partie

    ·VX Catering June 2005 to June 2008 as Junior Head Chef

    ·The Ivy Restaurant September 2008 to 29 August 2009 as Junior Chef de Partie

    ·Barlounge 15 October 2009 to 7 October 2012 as Head Chef

    The above employment has been in the UK.  In Australia he has worked at Ms Moneypenny’s as Sous Chef and at the Rococo Restaurant. 

23. Documentary evidence submitted by the applicant includes the following: a letter from the Accounts and Payroll Supervisor at the Barlounge, Chester, UK, stating that the applicant was employed there from 15 October 2009 to 7 October 2012; statement of earnings for the applicant issued by the Accounts and Payroll Supervisor at the Barlounge, and group certificates for the tax years 2011 and 2012 issued by the Barlounge Limited. 

24. Also submitted is a letter from the Human Resources Director at Caprice Holdings confirming the applicant’s employment from 8 September 2008 to 29 August 2009 at the Ivy Restaurant and a number of payslips as additional evidence in this regard.

25. Prior to the hearing the applicant submitted a document headed “New Kitchen Staff Assessment of Skills” dated 30 May 2014 from the Executive Chef, Rococo Restaurant, Noosa and a letter dated 21 June 2015 from the General Manager, Rococo Noosa.  The letter states in part that the applicant was tested by the Executive Chef over a 2 seek period and his skills and knowledge were found to far exceed their expectations and requirements.

26. The following documents were submitted with the visa application:  the applicant’s curriculum vitae; payslips from the Barlounge Limited for the period 30/11/09 to 31/10/12; a letter from the Executive chef at Barlounge Limited stating that the applicant worked as head chef at Bar Lounge for three years prior to his travel to Australia.

27. In assessing whether or not the applicant has the relevant experience required as a substitute for the formal qualification of an AQF Certificate III, the Tribunal notes the following.  The evidence indicates that the applicant has worked in the hospitality industry almost continuously since October 2000.  He has worked in the positions of Commis Chef, Junior Chef de Partie, Chef de Partie, Junior Head Chef, Head Chef, Sous Chef and Cook.  ANZSCO sets out the tasks, qualifications and specialisations relating to the occupation of Chef.  There is considerable overlap in the tasks ANZSCO identifies for the occupation of Cook and the occupation of Chef. 

28. After assessing the evidence the Tribunal is satisfied that the applicant has more than three years of employment experience that is directly relevant to the occupation of cook and that his relevant experience may substitute for the formal qualification of AQF Certificate III.

29. The Tribunal finds that the applicant has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation of Cook.  The requirements of cl.187.234(c) are satisfied.

30. Therefore, cl.187.234 is met. 

31. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

32. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.234 of Schedule 2 to the Regulations.

    Lesley Hunt
    Member