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

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 29 January 2016.

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 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.

5. A copy of the delegate’s decision was attached to the application for review.

6. The applicant appeared before the Tribunal on 6 May 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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 primary visa applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(4)(da).

   Requirement for an approved nomination

10. 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.

11. 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.

12. 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.

13. For these reasons the requirements of cl.457.223(4)(a) are met.

    Skills, qualification and employment background of the applicant

14. 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’.

15. 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.

16. 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.

17. 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’.

18. 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

19. 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

20. In his CV the applicant stated:

    In London I developed my passion for coffees, cocktails and hospitality industry.  I worked for Benugo, a vibrant company with many Cafes/Bars/Restaurants spread across the UK, where employees have fast possibility to grow.  I worked as a Barista/Team Leader in a busy high-end Café and as a Bartender/Bar Manager for a cocktail bar and events.  In Melbourne I worked as Bar Manager of an Italian restaurant in the iconic Lygon Street.  I am currently working as a Bar Manager in the bar of a busy Perth’s all day Restaurant/Café called Voyage Kitchen situated by the ocean in the hearth of Sorrento.  My work experience has demonstrated my ability to train and lead teams, handle pressure in all situations whilst remaining calm and efficient and improve businesses profit. (sic)

21. At the hearing the applicant provided further documents including a Diploma of Hospitality Management qualification obtained through a Recognition of Prior Learning Process.

22. In his submissions and oral evidence he stated that he has worked continuously for the sponsor since 2015, firstly at Voyage Kitchen in Sorrento and subsequently at the Isle of Voyage at Elizabeth Quay.  He continues to work at Elizabeth Quay.

23. Further documents provided include a letter of support from one of the Director owners of the businesses, Job Description for Restaurant Manager at the Isle of Voyage, Contract of Employment for the applicant, PAYG payment summaries for the applicant from 2015, samples of pay slips, minutes of meeting at the restaurant, messages between the applicant and his team at the restaurant, emails from the applicant to staff concerning alcohol stocktake, rosters, stock orders and functions and other miscellaneous management issues concerning the restaurant.

24. In his role at Voyage Kitchen the applicant has said he:

    -Works with a team of up to 10 people, directing the work flow

    -Providing high quality drinks such as coffees, juices and smoothies

    -Training new staff on coffee, cocktails and cold drinks

    -Maintaining stock levels for the bar

25. The applicant explained his duties at the Isle of Voyage as managing the venue.  This includes rostering the staff, hiring and training new staff, managing the daily affairs of the restaurant, planning the menus with the chef and owner and planning the drinks menu with the bar manager.  The restaurant seats 150 people with seating for 80 customers with table service inside and seating for 170 outside with counter service only. 

26. The Tribunal takes particular note of the letter of support provided by the applicant’s employer, Mr Campion, Director.  He stated: ‘The trust we have in Fulvio to continue carrying out his appointed tasks with such a high level of excellence has been increasing since he began working with us.  In fact, it has now reached a point where I am so confident that I have decided to take leave from my duties at the restaurant for a period of one year, entrusting our management to Fulvio’s most capable hands’.

27. The Tribunal finds that since the applicant started working for the sponsor he has acquired the minimum suggested relevant experience as at the date of hearing, of three years working as a café or restaurant manager.  The Tribunal finds that the tasks performed by the applicant at his workplace and as confirmed by him in his oral and documentary evidence are the majority of tasks as recommended by the ANZSCO guide.

28. The Tribunal, after reviewing all of the written and oral evidence before it, is satisfied that the applicant does have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.  The Tribunal is also satisfied the applicant has had in excess of 3 years on-the-job training and employment experience as well as obtaining recognition of his prior learning and attaining a Diploma of Hospitality Management.

29. Therefore the Tribunal is satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of ‘Café or Restaurant Manager’ and consequently finds that he meets the requirements of cl.457.223(4)(da).  The Tribunal also finds the applicant meets the requirements of cl.457.223(4)(a).

30. 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

31. 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 East
    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.