Armocida (Migration) - [2019] AATA 2049

Armocida (Migration) [2019] AATA 2049 (6 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Fulvio Armocida
CASE NUMBER:  1616531
DIBP REFERENCE(S):  BCC2016/440573
MEMBER:Michelle East
DATE:6 May 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(a)of Schedule 2 to the Regulations.
·Cl.457.223(4)(da) of Schedule 2 to the Regulations.

Statement made on 06 May 2019 at 3:15pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Café or Restaurant Manager – necessary skills, qualifications and experience – at least 3 years of relevant experience – Diploma of Hospitality Management – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

CASES
Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116

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 visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 29 January 2016.
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.
The delegate refused to grant the visa on 21 September 2016 on the basis that cl.457.223(4)(da) was not met because it was not satisfied that the visa applicant holds the necessary skills, qualifications and employment background for the nominated occupation of Café or Restaurant Manager.
A copy of the delegate’s decision was attached to the application for review.
The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(4)(da).
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Armocida (Migration)

Details

AGLC: Armocida (Migration) [2019] AATA 2049
Case: [2019] AATA 2049
Decision Date: 6 May 2019

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), brought by an applicant nominated by Paprika Holdings Pty Ltd for the occupation of Café or Restaurant Manager. The Tribunal was required to determine whether the applicant met the requirements of clauses 457.223(4)(a) and 457.223(4)(da) of Schedule 2 to the relevant regulations.

The primary legal issues before the Tribunal were whether an approved nomination for the applicant's occupation existed and had not ceased, and whether the applicant possessed the necessary skills, qualifications, and employment background to perform the tasks of a Café or Restaurant Manager. The Tribunal considered the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for guidance, acknowledging it was not binding but useful for informing its assessment. The Tribunal noted that ANZSCO indicated a skill level commensurate with an AQF Associate Degree, Advanced Diploma, or Diploma, with at least three years of relevant experience potentially substituting for formal qualifications.

The Tribunal found that the requirements of clause 457.223(4)(a) were met, as an approved nomination by Paprika Holdings Pty Ltd for the nominated occupation was in effect and had not ceased. Regarding clause 457.223(4)(da), the Tribunal accepted that the determination of an applicant's suitability required more than a narrow matching exercise against ANZSCO definitions, and instead favoured ascertaining the applicant's skills and their application to the nominated occupation, citing *Joshi v Minister for Immigration and Multicultural and Indigenous Affairs* [2005] FMCA 1116. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the applicant met the criteria under clauses 457.223(4)(a) and 457.223(4)(da).

Orders

Orders of the court

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Background

Background to the litigation

For these reasons the requirements of cl.457.223(4)(a) are met.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 addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is ‘Café or Restaurant Manager’. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Café or Restaurant Manager’. However, the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation. In doing so the Tribunal accepts that the determination of an application requires more than a narrow matching process between the applicant’s tasks and an ANZSCO definition. Rather, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116. The ANZSCO definition and tasks for the occupation of ‘Café and Restaurant Manager’ which is part of the Unit Group 1411 ‘Café and Restaurant Managers’ records the indicative skills level in Australia in relation to ‘Café and Restaurant Managers’ :Most occupations in this unit group have a level of skill commensurate with an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). At least three years of relevant experience may substitute for the formal qualifications listed above. The ANZSCO lead statement states that Café and Restaurant Managers ‘organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services’. Specifically, ANZSCO records that occupations in the unit group 1411 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 With his visa application the applicant provided the following documents:-Employment Reference Letter from Benugo, London dated 18 December 2015-Employment Reference Letter from Villa Romana, Carlton dated 10 December 2015-Employment Reference Letter from Voyage Kitchen, Sorrento dated 22 December 2015.-Curriculum Vitae (CV) of applicant

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(4)(da).Requirement for an approved nomination Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant provided to the Tribunal a copy of the ‘Notification of approval of a nomination’ letter dated 2 November 2018 that states the business nomination application lodged by ‘Paprika Holdings Pty Ltd’ for the nominated occupation of ‘Café or Restaurant Manager’ (ANZSCO Code 141111) was approved by the Department on 2 November 2018. This approval is valid until 2 November 2019. Accordingly, the Tribunal finds that the business nomination made by ‘Paprika Holdings Pty Ltd’ was made by an entity that was a standard business sponsor at the time the nomination was approved on 2 November 2018 and that it has not ceased under regulation 2.75 at the time of its decision. For these reasons the requirements of cl.457.223(4)(a) are met.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 addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is ‘Café or Restaurant Manager’. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Café or Restaurant Manager’. However, the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation. In doing so the Tribunal accepts that the determination of an application requires more than a narrow matching process between the applicant’s tasks and an ANZSCO definition. Rather, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116. The ANZSCO definition and tasks for the occupation of ‘Café and Restaurant Manager’ which is part of the Unit Group 1411 ‘Café and Restaurant Managers’ records the indicative skills level in Australia in relation to ‘Café and Restaurant Managers’ :Most occupations in this unit group have a level of skill commensurate with an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). At least three years of relevant experience may substitute for the formal qualifications listed above.

Decision

Reasons for decision

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 application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:·cl.457.223(4)(da) of Schedule 2 to the Regulations.·Cl.457.223(4)(a) of Schedule 2 to the Regulations.Michelle EastMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

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