Battistin (Migration)

[2017] AATA 1343

Battistin (Migration) [2017] AATA 1343 (3 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David Battistin

CASE NUMBER:  1610386

DIBP REFERENCE(S):  BCC2015/3219694

MEMBER:Alan McMurran

DATE:3 August 2017

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)(da) of Schedule 2 to the Regulations.

Statement made on 03 August 2017 at 9:28am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Skills, experience and qualifications necessary for the nominated occupation – Cook – Evidence that applicant has more than six years total experience – Independent skills assessment not required

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223

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 3 November 2015.

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 24 June 2016 on the basis that cl.457.223(4)(e) was not met because the primary applicant has not provided evidence of a successful completion of a Trades Recognition Australia (TRA) migration skills assessment.

5. The applicant appeared before the Tribunal on 26 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from a witness James Borruso.

6. The applicant was represented in relation to the review by his registered migration agent who appeared with him at the hearing. The applicant also had the assistance of an interpreter in the Italian language to the English language.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e). The Tribunal considers the requirements of cl. 457.223(4)(da) are also relevant.

   Skills, qualification and employment background of the applicant

9. 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 cook (ANZSCO 351411). The manner specified by the Minister was a TRA assessment.[1]

   [1] Trades Recognition Australia, Dept. of Education and Training, a skills assessment service provider specializing in assessments for people with trade skills gained overseas or in Australia for the purpose of migration and skills recognition.

10. The first issue for consideration on this review is whether the applicant meets the requirements in relation to the skills, qualifications and employment background necessary to perform the tasks of a cook.

11. The Tribunal also needs to consider the application of cl 457.223(4)(e) and the Minister’s request for a skills assessment. The Tribunal on this review considers the matter afresh and may review the evidence and consider for itself whether a trades skills assessment is necessary and whether the PA otherwise meets the skills, experience and qualifications necessary for the nominated occupation. The Tribunal understands the Department’s concerns raised as to the skills assessment based on RPL provided by Metro College (referred to below) and the extent to which such an assessment might prove reliable.

12. The Tribunal has had regard to the Department’s file and the documents on the file included with the primary application made on 3 November 2015. Those documents included references and certified translation of a letter of service from a restaurant, Galivm Italia Trattoria, certified 13 October 2015. A trattoria might generally be defined as an Italian style restaurant where dining is less formal, and where service is generally casual, wine sold by decanter rather than bottle, prices are low to moderate and the emphasis is not on haute cuisine.[2]

    [2] Wikipedia >

    The documents on the Department’s file included the application with supporting certifications, IELTS result, and curriculum vitae. The primary applicant’s passport shows that he was born in Italy where he is domiciled, and is currently 30 years of age. The file includes copies of a completion letter and Certificate IV in commercial cookery from Metro College of Technology dated 22 October 2015, and Certificate IV in commercial cookery from GQ Australia College dated 27 May 2016. The applicant has also produced a Certificate for an international pizza training course obtained in Italy and dated 12 November 2012, from the Professional Training School for Pizzaioli.

13. The file reveals an exchange of correspondence between the Department and the agent representing the applicant, concerning a request by the Department for the applicant to complete a skills assessment. The applicant did make an application for assessment by TRA in March 2016, which was unsuccessful. The Tribunal’s file contains a copy of the TRA migration skills assessment outcome dated 12 April 2016.The issue of that assessment is discussed below.

14. In more recent submissions made to the Tribunal and received on or about 21 July 2017, the applicant has provided a list of the documents which were sent to TRA, a current residential tenancy agreement, a certificate for first aid training dated 25 May 2016, a profit and loss statement from the sponsor (Borpizza Pty limited), a copy of the applicant’s driver’s licence, two PAYG summaries for the period 1 July 2015 to 30 June 2017, and a letter with submissions from the applicant’s representative which contains a chronology.

15. At the completion of the hearing, the representative offered to provide to the Tribunal within 7 days (by 2 August 2017) a copy of the documents which had been provided to TRA for the unsuccessful assessment, those documents not being on the Department’s file. The Tribunal received those documents on 26 July 2017, which were attached to a letter from the representative dated 6 April 2016 and included evidence of prior relevant employment experience at 6 restaurants. The attachments included evidence of payment vouchers and payslips from those employers.

16. At the hearing, it was explained to the applicant that the Tribunal needed to be persuaded that the applicant had the necessary skills, qualifications and experience to perform the role of the nominated occupation of cook, irrespective of the outcome of the skills assessment. It also provided the applicant an opportunity to explain his background and experience, as he had been unable to provide satisfactory evidence for a successful TRA assessment.

17. In the letter from TRA on 12 April 2016, the applicant was informed that in order to obtain a successful outcome he would be required to provide at least one primary source or two secondary sources for each year of employment. The sources described included tax records, payment summaries, payslips, annual or company returns with an accountant’s statement, advice regarding wages paid, certified statement from an accountant, letters from taxation officers with reference to the named employer and bank statements showing income deposited.

18. The applicant said at the hearing he had been unable to locate such documents referring to his employment history in Italy. The applicant hadarrived in Australia in about October 2013 and had not brought any documents with him. The applicant was relying in his application to the Department upon his prior work history in Italy from about 2005 to 2013 to establish that he had been working consistently as a cook. If this history were accepted, the applicant would show a demonstrated work history in the occupation prior to coming to Australia for a period in excess of 5 years (excluding periods overseas when he had not worked as a cook)..

19. At the time of application, the applicant was only able to demonstrate a history in Australia working as a cook from the end of 2013 until late 2015. This history was unlikely to lead to a successful outcome for the TRA assessment as it was too short. It was therefore important to the applicant to be able to verify his work history in Italy. As TRA was not satisfied of the applicant’s skills and experience in the absence of primary and secondary documents evidencing his work history, the assessment was unsuccessful.

20. At the hearing, the applicant said that he had tried to obtain primary and secondary source documents from Italy but had been unable to do so. He said that his first employment at Da Renzo restaurant in his home town of Capella had not resulted in any records at all. He said he was employed by oral agreement without a written employment contract and was not given any pay records. In fact his wages were not always paid, were irregular, and for that reason he left that employment towards the end of 2007.

21. The applicant then worked for approximately 3 years both as a fish salesman and in a supermarket, and from 2008 until 2010 full time as a cook at La Vecchia Trattoria. He said this was a full-service restaurant where he was engaged as a cook preparing salads, entrees, pasta and risotto and worked alongside the owner, Cristian Gallo, who was the other cook. The applicant said that the owner helped train him and that he obtained substantial experience in this employment learning how to cook, prepare and plate meals. The applicant said again this was an oral contract of employment and the only thing he had been able to obtain in writing from Mr Gallo was a reference, which has been produced in support of the application.[3]The reference states the applicant worked in the restaurant as cook for a minimum of 40 hours per week from 7 October 2008 to 26 December 2010.

    [3] D file F 60

22. The Tribunal asked the applicant why it should accept his statements about that employment without further documentary evidence, such as payslips or tax payments. The applicant said that he had tried to locate documents but in Italy people did not keep good business records, particularly for small village restaurants, and they could not be produced. He asked the Tribunal to accept his statements as to his experience and said that although his first restaurant experience in 2005 until 2007 had involved predominantly fish meals, his experience from 2008 until 2010 with Mr Gallo’s restaurant was preparing more complex dishes, and he received much greater supervision and training in how to make sauces, meat dishes and under the supervision of the chef, Cristian Gallo.

23. The applicant said that he had to leave that restaurant at the end of 2010 because the restaurant closed as it was losing business. He said he spent the next two years from approximately the end of 2010 until 2012 working variously in unrelated employment. Then in 2012, the applicant wanted to become qualified and enrolled in a pizza maker course, recognised in Europe as a significant qualification. The course involved full time training over a period of 4 weeks, 3 or 4 days per week. The applicant learned how to make dough, cook pizza, gourmet cooking and producing other different types of recipes. A copy of the Certificate has been provided with the application and which the applicant says is highly regarded in Europe.

24. The applicant said that after he received the Certificate for completion of the course, he obtained employment almost immediately in a restaurant, Vittorio Gallium, which he says was a full-service restaurant, very large, employing 7 cooks and operating 7 days a week with provision for up to 300 patrons in winter and up to 500 in summer with outside seating. He said it was a relatively new restaurant which had opened in approximately 2012 and he worked there as a cook from mid-2012 until he departed for Australia in October 2013. The reference from that restaurant includes a certified translation and states that the applicant was an employee from January to September 2013 as “a pizza maker/cook”.[4]

    [4] D file F 61

25. The reference states that the applicant “prepared foods, skilfully prepared fried foods and served salads and desserts”. The Tribunal finds that it can have regard to that reference when considering the applicant’s employment history, qualifications, skills and experience in reviewing the skills, qualification and employment background of the applicant. The applicant has produced pay records and bank deposit slips concerning that employment at Gallium.[5]

    [5] Letter from representative T file F 45 et seq

26. The applicant stated that he left that employment to travel to Australia towards the end of 2013. He said that when he first arrived in Sydney he was unable to find work and for the first two months moved around until he found a suitable place to live. He saw an advertisement on the Internet for a cook and was interviewed by James Borruso who had placed the ad. He said that he initially commenced work as a cook in a casual role and was being observed by Mr Borruso in his restaurant, Borruso’s Pizza and Pasta at Northbridge.

27. At the same time, the applicant obtained employment as a cook on a casual basis at a restaurant, da Mario at Rosebery in Sydney, where he worked from January 2014 to May 2014[6]. The applicant said in his evidence that he worked the day shift at da Mario and the evening shift at Borruso’s. The applicant stated these were both full-service restaurants offering meals and operating seven days a week. The applicant said that at Borruso’s he was one of seven cooks who all worked under the supervision of the owner, Mr James Borruso. He said that he prepared meals, salads, sauces cooked meals, plated them and worked on the menu at the restaurant.

    [6] D file F 62

28. The applicant said that in order to meet his Visa requirements, he was only able to work casually and in about May 2014 went to Queensland where he worked for four months doing farm work. In or about September 2014, the applicant returned to Italy with his partner where he visited family and worked part-time as a cook in his hometown of Capella at a restaurant called Crazy Pizza. He said that the owner of that restaurant had been in contact with him when the applicant was in Australia and told him if he returned to Italy he would give him a job straightaway. He said he approached him when he returned to Italy and was offered part-time employment. He said it was a small restaurant, predominately takeaway and he was working as a cook making pizza and salads. The applicant produced a reference dated 23 February 2016 from Mr Antoniazzi Luca provided to the Department.[7]

    [7] D file F 63

29. The applicant returned to Australia in March 2015 and approached Mr Borruso to see if there were any positions available at his restaurant. The applicant said that he was offered his previous employment as a cook and from approximately March to June 2015 worked casually at the restaurant. Mr Borruso offered to sponsor the applicant for employment in the occupation of cook and the applicant said that he agreed as he wanted to stay in Australia. He said he was very happy working at the restaurant and saw it as an opportunity for him to work full-time in the role of cook. Borpizza Pty Limited applied for and was approved as a standard business sponsor and successfully nominated the occupation of cook for the applicant, on a base salary of $55,000 per annum.[8]

    [8] T file F 30

30. The applicant stated that in his role as Cook, he works in the restaurant kitchen alongside the other cooks, some of whom he trains. He also works under the supervision of the owner, Mr Borruso, and is responsible for preparing food, cooking and plating food and adapting the menu from time to time. Food preparation includes meat and pasta dishes, salads and desserts, and the applicant stated that he works on the whole menu as well as his specialty being pizza and pasta.

31. The sponsor provided a written reference to the Department by letter dated 15 September 2015.[9] The applicant said that he has continued to work at Borruso’s Pizza and Pasta at Northbridge, doing mostly evening shifts from approximately 3 pm to 10 pm each week. The applicant said that prior to his application for the Visa, he had submitted documents to Metro College and obtained a Certificate IV in Commercial Cookery, based on recognised prior learning.[10]

    [9] T file F 34

    [10] D file F 53-55

32. The department wrote to the representative for the applicant on 4 April 2016 when reviewing the application.[11] The Department stated that “as the department has identified integrity issues with Metro College’s qualifications on a number of occasions, the case officer decided to request for a skills assessment”. In response to this request, the applicant stated that he became concerned and sought a further qualification from a different college, GQ Australia College. The applicant obtained a Certificate IV in Commercial Cookery from GQ Australia on 27 May 2016[12], which the applicant subsequently submitted to the Department. This qualification is recognised within the AQF guideline as an appropriate qualification for the occupation of cook.

    [11] T file F 34

    [12] D file F 56-57

33. The applicant stated that he submitted the Certificate too late, as the Department had already made its decision on 24 June 2016 refusing his Visa application.[13] In that decision, no mention or reference is made to the qualifications obtained by the applicant either from Metro College or from GQ Australia College.

    [13] T file F 3-4

34. The TRA assessment similarly makes no reference to the qualifications relied upon and in any event which did not include the certificate from GQ Australia College which was obtained after the assessment. The letter of 12 April 2016 from TRA[14] states that “based on the evidence you provided, your qualification was assessed as being comparable to the relevant AQF qualification for your nominated occupation”.[15] As the only evidence of qualification at that point was the Metro College certificate, the Tribunal finds that it was that evidence that was satisfactory to TRA as evidence of the equivalent AQF qualification.

    [14] T file F 32

    [15] T file F 33

35. Because of the lack of documentary evidence to TRA about the overseas prior work experiences of the applicant, as set out in the TRA letter, the applicant was unsuccessful in his TRA skills assessment.

36. At the hearing, the Tribunal also heard evidence from the current sponsor and employer, Mr James Borruso. The witness identified himself as the owner and director of the sponsor and stated that he had had the opportunity to observe the applicant working as a cook in his restaurant since he first engaged him in early 2014. He said that he had interviewed the applicant who had applied for the position based on an advertisement for a cook. The witness stated that he advertises continuously as he always needs staff “which are difficult to find”. The witness stated that he had operated the restaurant since about 2007 and it had grown to be very successful. The sponsor’s current profit and loss statement appears in the Tribunal’s file[16] and shows gross sales of $1.375 million with expenses for wages and salaries of $638,000 (rounded).

    [16] T file F 37-38

1. The witness stated the sponsor employs approximately 45 staff with 29 full-time employees. The applicant is a casual cook working approximately 25 to 40 hours per week alongside seven other cooks and under the supervision of the witness. The witness stated that he is an experienced chef and oversees the work of all his staff. When asked by the Tribunal if he supervises the applicant when cooking, telling him what to do, the witness responded “certainly not”. The witness stated that the applicant is a very valuable employee and works largely unsupervised in the kitchen and assists training other staff as he is one of the longer term serving employees.

2. The witness said there is a regular turnover of staff as it is a “transit industry” and he is continually advertising. He said he uses Seek, Gumtree and word-of-mouth looking for employees. He stated that one of his senior staff had recently moved to front of house from the kitchen and that he wanted to replace this person in the kitchen with the applicant. He said that he viewed the applicant as one of his best employees, “in the top three”, and was hopeful to place him in a senior role in the future, meaning operating in a new restaurant the sponsor hopes to establish.

3. The witness who is himself experienced as a chef, said that he observed the applicant to be highly skilled, competent and experienced in the kitchen working as a cook and that his specialty skills in pizza and pasta making were “highly valued”. The witness was asked whether he had spoken to the applicant about his previous employment history, and the witness could not specifically recall such conversations other than the applicant informing him he had worked as a cook in Italy. Having observed him in the kitchen, the witness was of the view the applicant had already acquired significant skills when he first employed him. The witness stated that the sponsor was hoping to retain the applicant and would continue to employ him.

4. The Tribunal has paid careful attention to the evidence at the hearing, the documents submitted to the Department and on the Tribunal’s file, and the submissions to TRA and its response in its letter, declining to acknowledge the previous experience of the applicant due to the lack of primary and secondary source documentation.

5. The Tribunal understands that the Minister has properly exercised the discretion in 457.223(4)(e) to require the applicant to demonstrate the skills necessary to perform the occupation of cook and to have that assessment conducted by TRA in the manner specified.

6. The Tribunal has had the benefit since that assessment of the additional qualification provided to the applicant by GQ Australia College, which assessed him as meeting the equivalent standard for the occupation of cook. The Tribunal has also had the benefit of hearing the applicant’s oral evidence and the evidence of the witness as to the applicant’s prior experience. The Tribunal accepts that the applicant was unable to obtain primary and secondary source documents as requested by TRA. The Tribunal also finds that the explanation of the applicant for being unable to produce those documents is reasonable in the circumstances where one of his prior employers went out of business and the other employer for whom he worked for approximately three years in Italy has kept no records of a contract of employment, terms and conditions on offer and salary paid. That employer has however provided a reference, and copies of pay records, and in the circumstances the Tribunal finds it is reasonable to rely upon that written material as evidence of the prior training and employment of the applicant whilst living and working in Italy in the period from 2008 to 2010.

7. The Tribunal also finds the evidence of the witness from the sponsor corroborates its finding as to the previous experience of the applicant. The witness himself was very experienced and able to provide evidence of his observations of the work of the applicant as a cook, and the Tribunal accepts that evidence as reasonably expert and reliable, and upon which the Tribunal can reasonably make a finding as to the prior and current experience of the applicant.

8. The ANZSCO guidelines provide that absent an equivalent AQF qualification of at least a Certificate III, at least three years of relevant experience may substitute for such formal qualifications. In addition, TRA has proposed a minimum of six years prior experience. The Tribunal notes these are reasonable guidelines upon which it may rely and to which it should have regard when drawing its conclusions.

9. The Tribunal finds in this instance, the applicant has the relevant equivalent AQF qualification being a Certificate IV. Further, the Tribunal finds that the applicant has established a period of five years prior experience when working in Italy between 2005 and 2013 which, when added to the applicant’s experience working in Australia from 2014, provides the applicant with more than six years total experience as a cook since he first started in 2005.

10. The Tribunal finds that in light of these circumstances, nothing is to be gained by requiring the applicant to demonstrate further that he has the necessary skills to perform the occupation of cook and putting him to the expense of a further assessment from TRA where no further primary or secondary source documents are likely to be produced, and the Tribunal declines to make such a requirement a condition for the issue of a Visa to the applicant.

11. The Tribunal finds in the circumstances that the applicant has demonstrated he has the necessary skills, qualifications and employment background to perform the nominated occupation of cook, and that the Tribunal does not require him to demonstrate that he has those skills qualifications and employment background by a further independent skills assessment.

12. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

13. 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

14. 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.

    Alan McMurran
    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.