BELOTTI (Migration)

BELOTTI (Migration) [2020] AATA 4992 (4 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Enrico Belotti
CASE NUMBER:  1723177
DIBP REFERENCE(S):  BCC 2016/4027011
MEMBER:Jennifer Cripps Watts
DATE:4 September 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 2 to the Regulations

Statement made on 4 September 2020 at 2:15pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – skills, qualifications and employment background for the nominated occupation – position of Restaurant Manager – subject of an existing approved nomination – closure of the 457 program – three years relevant work experience – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, s 6704(15)
Migration Regulations 1994, Schedule 2, cl 457.223; 2 2.75
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 Subclass 457 visa that is the subject of this review on 29 November 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). Relevant in this case, is that 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.
The delegate refused to grant the visa on 11 September 2017 on the basis that cl.457.223(4)(da) was not met because they were not satisfied that the applicant had the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
On 27 September 2017, the applicant applied for merits review and provided the Tribunal with a copy of the delegate’s decision.
On 19 December 2019, the applicant’s migration agent emailed a statutory declaration, sworn by the applicant, requesting that that the Tribunal refer the matter to the Minister ‘pursuant to paragraph 16.2 of the AAT Practice Direction’, which appeared to be on the basis that the applicant thought he no longer had an approved nomination, that had not ceased, relating to his Subclass 457 visa. As the Tribunal had not yet made a decision in the applicant’s case, the applicant was invited to attend a scheduled hearing, where this issue could be discussed. The invitation to the scheduled hearing was accepted in writing.
The applicant appeared by phone before the Tribunal on 11 June 2020 to give evidence and present arguments. This was during the COVID-19 pandemic and it was explained to the applicant that the Tribunal was satisfied that it would be appropriate, in the circumstances, to conduct the review by phone. 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, which is the same issue on which the visa was refused by the delegate, is whether the Tribunal is satisfied that the applicant possesses, and demonstrates that he has, 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.
Another issue that has arisen on the review is whether the applicant is the subject of an approved nomination that has not ceased as provided for in r.2.75 of the Regulations; cl.457.223(4)(a).
The Tribunal has considered information contained in both the Tribunal and Department files, in addition to, and together with, oral evidence material to the issue on the review in reaching its decision.
The related nomination: Is there an approved nomination that has not ceased?
On 18 March 2018, the Subclass 457 visa program was replaced, effectively, 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, saving provisions for an approved nomination were put in place for applicants still awaiting a decision on a related Subclass 457 visa application, including on review.
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. Essentially, in this matter, the sponsor’s approved nomination has not ceased.
The applicant’s nominated occupation is that of Café or Restaurant Manager and the related nomination application was made by Essegi Corp Pty Ltd atf Essegi Family Trust (the sponsor); Amici Ristorante in Cammeray. The nomination application was made on 29 November 2016 and was approved on 11 September 2017. The applicant applied for the Subclass 457 visa relating to that nomination on 29 November 2016, it was refused on 11 September 2017 and his review application was lodged on 27 September 2017, within time.
For the reasons given, the Tribunal is satisfied that the nomination, relating to the applicant’s Subclass 457 visa that is the subject of this review, has not ceased.
Therefore, the applicant meets cl.457.223(4)(a).
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.
It is usual for the delegate or the Tribunal in cases such as this, when considering whether an applicant for a Subclass 457 visa has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, to have regard to the Australian and New Zealand Standard Classification of Occupations (ANZSCO). In this case, the nominated occupation of Café or Restaurant Manager has ANZSCO code 141111 and is contained in the Unit Group 1411, Café and Restaurant Managers, where they are described as those who ‘organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services’.
In the ANZSCO ‘most occupations’ in Unit Group 1411 are described as having ‘a level of skill commensurate with the qualifications and experience’ outlined, noting that while there are some specialisations and alternative titles, within the Café or Restaurant Managers unit group, there is only the one occupation. The level of skill is indicated as:
a.Australian Qualifications Framework (AQF), Associate Degree, Advanced Diploma or Diploma; Skill Level 2; or
b.At least three years of relevant experience.
With his visa application, the applicant provided an overseas qualification; Diploma Di Istruzione Secondaria Superior – Ordine Tecnico Ragioniere E Perito Commerciale [Vocational Secondary School Certificate in Accounting and Commercial Studies]. As the applicant is not claiming that this is a qualification that is at Skill Level 2 as indicated in the ANZSCO, it is acknowledged but is not relevant to the issue of the applicant’s claim to meet the criteria on the basis of having at least three years’ relevant work experience.
The applicant provided the Tribunal with a statutory declaration, sworn by him on 17 December 2019, which had attached to it a selection of pay slips and PAYG statements issued from 2015 to 2017, email communications between him and his previous migration agent appearing to indicate that some of the applicant’s instructions were not followed relating to documents that should have been provided at the time of application but were not, and a typed work reference from a former employer, Ristorante Pizzeria da Sandro in Italy, dated November 2016. The referee includes a description of the tasks and duties performed by the applicant (in Italy) from November 2008 to August 2013 that are generally consistent with those of the nominated occupation as described in the ANZSCO. It is not specified in this reference whether the applicant worked full-time or part-time. The Tribunal is prepared to accept the applicant worked over the whole period, 20 hours a week. This equates to an approximate full-time equivalent of about 20 months.
It was requested by the Tribunal, and the applicant provided, post-hearing, additional documents, on 22 June 2020, including ATO Notices of Assessment for 2018 and 2019, and pay slips for 2019.
Essentially and in summary, going to the issue material to the review, that is, the applicant’s skills, qualifications and experience, in the statutory declaration the applicant concedes he does not have a Diploma level qualification and, in the alternative, seeks to meet the cl.457.223(4)(da) on the basis of at least three years’ relevant employment.
From the time he arrived onshore in 2013, up to November 2016, the applicant said he resided in Australia as the holder of working holiday and student visas, which is not in dispute. Movement records confirm that he entered Australia holding a Subclass 417 working holiday visa in 2013 and that in 2014 he was granted a Subclass 572 Student visa. The applicant said he understood condition 8105 which attached to the student visa meant that he could only work 40 hours a fortnight and he claims that he worked no more than 40 hours a fortnight for the sponsor up to the end of 2016, while he held a student visa with this condition.
At the time of application, there was inconsistency in the sponsor’s work reference dated 17 January 2017, provided at the time of application, relating to whether the applicant worked full-time or part-time. The reference of Mr Grillo (the owner of the sponsoring business) included that the applicant worked full-time as a Restaurant Manager from April 2015 to January 2017. However, the Tribunal has considered the applicant’s oral evidence and supporting documents and accepts his explanation that this was a simple error on the part of the sponsor, and that the applicant worked no more than 40 hours a fortnight, in the nominated occupation, between April 2015 and January 2017, in compliance with his student visa conditions, specifically condition 8105.
The applicant provided the Tribunal with an updated written employment reference from Sergio Grillo, Owner Amici Ristorante Pizzeria Cammeray, dated 25 May 2020. The reference includes that the applicant has ‘continued to be employed in his position as a Restaurant Manager with Amici Ristorante Pizzeria since the review of his Subclass 457 visa refusal was lodged to the Administrative Appeals Tribunal’ (on 27 September 2017). The Tribunal verified with Mr Grillo by phone, prior to the hearing, that he had written the reference.
The applicant was asked at the Tribunal hearing what types of duties he has undertaken for the sponsor and gave a spontaneous account of the tasks he performs, including managing clients and staff under his supervision, participating in the selection of food and the buying stock, organising parties and functions and taking care also to make sure that the business can be profitable. The Tribunal is satisfied that the applicant’s description of his duties is consistent with those detailed in the ANZSCO, which include:
a.planning menus in consultation with chefs
b.planning and organising special functions
c.arranging the purchasing and pricing of goods according to budget
d.maintaining records of stock levels and financial transactions
e.ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance
f.conferring with customers to assess their satisfaction with meals and service
g.selecting, training and supervising waiting and kitchen staff;
h.taking reservations, greeting guests and assisting in taking orders
On the evidence the Tribunal is prepared to accept, and is satisfied, that the applicant worked for the sponsor as a Restaurant Manager, performing a substantial proportion of the tasks and duties outlined in the ANZSCO, acquiring experience relevant to the nominated occupation:
a.part-time, no more than 40 hours a fortnight, from April 2015 to January 2017, estimated as a full-time equivalent of approximately 20 months; and
b.full-time, ongoing from January 2017, for a total of more than three years.
The Tribunal is satisfied that the applicant possesses, and has demonstrated that he has, the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.
Therefore, 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 4992

4 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal