Aroma Enterprises Pty Ltd atf Tamana Family Trust (Migration)

Aroma Enterprises Pty Ltd atf Tamana Family Trust (Migration) [2020] AATA 3210 (11 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Aroma Enterprises Pty Ltd atf Tamana Family Trust
VISA APPLICANT:  Mr Matrika Khadka
CASE NUMBER:  1722435
DIBP REFERENCE(S):  BCC2017/2117545
MEMBER:Jennifer Cripps Watts
DATE:11 June 2020
PLACE OF DECISION:  Sydney
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
·cl.457.223(4)(e) of Schedule

Statement made on 11 June 2020 at 6:33pm
CATCHWORDS
MIGRATION– Temporary Business Entry (Class UC) visa–Subclass 457– nomination has not ceased, or been withdrawn – necessary employment experience –skills, qualification and employment background of the applicant – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 140GB, 360
Migration Regulations 1994, r 2.75, Schedule 2, cl 457.223
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 (the delegate) 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 15 June 2017.
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 31 August 2017 on the basis that cl.457.223(4)(da) was not met because they were not satisfied that the visa applicant had the skills, qualifications and employment background that the Minister considered necessary to perform the tasks of the nominated occupation.
The review application was made by the sponsoring employer because the visa applicant was offshore at the time. The Tribunal scheduled a hearing and invited the applicant to attend. In the hearing invitation it was suggested that the applicant may wish to consider providing additional documents in support of his application.
The review applicant was represented in relation to the review by its registered migration agent, who provided detailed and informative written submissions addressing the material issues prior to the scheduled hearing. It was requested that the Tribunal consider making a decision ‘on the papers’.
The Tribunal considered the request and was able to make a favourable decision on the evidence before it without requiring the review applicant or visa applicant to attend a scheduled hearing to give evidence and present arguments: s.360(2)(a) of the Act.
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 visa applicant demonstrates, and the Tribunal is satisfied, that they have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation to meet the requirements of cl.457.223(4)(da) and cl.457.223(4)(e) of Schedule 2 to the Regulations.
To meet cl.457.223(4)(a), the applicant must be the subject of a related approved nomination that has not ceased or been withdrawn.
The related nomination
On 18 March 2018, the Subclass 457 visa program was replaced with the Subclass 482 visa program and it was no longer possible to lodge a Subclass 457 visa application or for a related nomination application to be made. However, a savings provision for approved nominations was put in place for applicants still awaiting a decision on a related Subclass 457 visa application.
In summary, relevant to this matter, for a Subclass 457 visa application that was refused and a review application made, and where there is a related approved nomination, if the nominee’s review application was applied for by the visa applicant within 12 months after the day on which the nomination was approved and before 18 March 2018, subclause 6704(15) of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 ‘saves’ the nomination linked to a Subclass 457 visa application until such time as the Tribunal has reviewed the decision to refuse the visa.
The visa applicant was nominated to carry out the occupation of Chef by Aroma Enterprises Pty Ltd atf Tamana Family Trust. Their nomination was approved under s.140GB of the Act on 31 August 2017. The visa was refused on 31 August 2017 and the review application made on 20 September 2017. In the circumstances, the Tribunal is satisfied that the nomination has not ceased, or been withdrawn.
Therefore, the applicant satisfies the requirements of cl.457.223(4)(a).
Skills, qualifications 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 Chef, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 351311.
At the time of this decision, the Tribunal has before it additional information provided by the applicant, including copies of, relevantly:
a.the applicant’s current employment contract dated 23 March 2020;
b.support letter from the sponsoring employer dated 6 April 2020;
c.Diploma of Hospitality Management;
d.recent payslips dated from 18 May 2020 to 31 May 2020;
e.PAYG payment summaries for the financial years 2017, 2018 and 2019;
f.ATO Notice of Assessments for the financial years 2017, 2018 and 2019; and
g.income statement history issued by the ATO from 1 July 2019 to 19 April 2020.
The Tribunal has had regard to the ANZSCO as a guide. The Unit Group 3513 Chefs includes that most occupations in the group are at Skill Level 2; AQF Associate Degree, Advanced Diploma or Diploma, or at least three years of relevant work experience.
The visa application was lodged on 15 June 2017 and refused on 31 August 2017. The applicant’s highest qualification at that time was a Certificate IV in Commercial Cookery, which is below the indicative level in the ANZSCO, and he had been working for the sponsor predominantly as a Cook, which is specifically excluded from the 3513 Unit Group, and not as a Chef for at least three years.
At the time of this decision, the applicant has provided evidence to the Tribunal of having completed a Diploma of Hospitality Management. The Tribunal is satisfied that the applicant has a qualification at the ANZSCO indicative Skill Level 2.
In written submissions provided to the Tribunal on behalf of the applicant, it is claimed that the visa applicant now has the necessary employment experience. Background is given, with supporting and verifiable evidence, that the applicant commenced work with the sponsor in February 2015 in the position of Cook. In April 2017, the sponsor promoted the applicant to the position of Chef and he has worked for the sponsor since then, full time, 40 hours a week. It is accepted by the Tribunal that the applicant has been working in the nominated occupation, performing the usual duties of Chef, as detailed in the ANZSCO from April 2017 to the time of this decision.
It is acknowledged by the Tribunal that the applicant has, since the visa was refused, taken ‘proactive steps to further his knowledge and (he has) successfully completed a Diploma of Hospitality Management’, in addition to working for more than three years carrying out the duties and tasks of Chef, the position he was promoted to in April 2017.
For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).
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)(a) of Schedule 2 to the Regulations
·cl.457.223(4)(da) of Schedule 2 to the Regulations
·cl.457.223(4)(e) of Schedule 2 to the Regulations
Jennifer Cripps Watts
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.

[2020] AATA 3210

11 June 2020

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