BELOTTI (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, by an applicant nominated for the occupation of Café or Restaurant Manager. The primary dispute revolved around whether the applicant possessed the requisite skills, qualifications, and employment background for the nominated occupation, as well as whether an approved nomination for the position remained valid following the closure of the Subclass 457 program. The Administrative Appeals Tribunal was tasked with reconsidering the decision to refuse the visa.

The legal issues before the Tribunal were twofold: firstly, whether the applicant met the criteria under clauses 457.223(4)(da) and 457.223(4)(e) of Schedule 2 to the Migration Regulations 1994, which require the applicant to demonstrate the necessary skills, qualifications, and employment background for the nominated occupation, and secondly, whether the applicant was the subject of an approved nomination that had not ceased, as stipulated by regulation 2.75 and clause 457.223(4)(a). The Tribunal was required to assess the applicant's submitted overseas qualification and work experience against the Australian and New Zealand Standard Classification of Occupations (ANZSCO) for Café or Restaurant Managers, which indicates a skill level commensurate with an Associate Degree, Advanced Diploma, Diploma, or at least three years of relevant experience.

The Tribunal found that the applicant's nominated occupation and the associated sponsorship nomination, made by Essegi Corp Pty Ltd, had not ceased despite the closure of the Subclass 457 program, due to relevant saving provisions. This satisfied clause 457.223(4)(a). However, regarding the applicant's skills and experience, the Tribunal noted that while the applicant provided a Diploma of Vocational Secondary School Certificate in Accounting and Commercial Studies and a work reference from a former employer detailing duties consistent with the nominated occupation between November 2008 and August 2013, the reference did not specify whether the employment was full-time or part-time. The Tribunal was prepared to accept the applicant worked approximately 20 hours per week over this period, equating to about 20 months of full-time equivalent experience, which fell short of the three years required by ANZSCO for skill level 2.

Consequently, the Tribunal determined that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that the applicant met the criteria under clauses 457.223(4)(a), 457.223(4)(da), and 457.223(4)(e), but the remaining criteria for the Subclass 457 visa needed to be assessed.