CHONG (Migration)

[2021] AATA 532

CHONG (Migration) [2021] AATA 532 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KOOK YEW CHONG
Ms WAN YEE LEE
Mr CHENG C CHONG

CASE NUMBER:  1814400

HOME AFFAIRS REFERENCE(S):          BCC2017/4658588

MEMBER:Michelle East

DATE:29 January 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(da) of Schedule 2 to the Regulations

Statement made on 29 January 2021 at 11:57am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Cook – skills, qualifications and employment background for the nominated occupation – evidence of qualifications and work experience – time of decision criterion – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 made by a delegate of the Minister for Home Affairs on 27 April 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 7 December 2017. At the time the 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl 457.223(4)(da) because the delegate was not satisfied that he has the skills, qualifications and employment background related to the nominated occupation of Cook (ANZSCO 351411).  A copy of the decision was attached to the application for review.

4. Prior to the hearing the Tribunal was provided with further documentary evidence which is detailed below.  The Tribunal, after careful consideration of this evidence has determined the matter on the papers without proceeding to review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has the appropriate skills, qualifications and employment background related to the nominated occupation of Cook (ANZSCO 351411).

7. Clause 457.223(4)(da) requires the applicant to have the ‘skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation’.

8. 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 ‘Cook’.  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.

9. ANZSCO provides the following for the tasks and responsibilities of the position as well as the indicative skill level:

   COOKS prepare, season and cook food in dining and catering establishments.

   Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
   Indicative Skill Level:
   Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
   In Australia:

   AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

   
   In New Zealand:

   NZ Register Level 4 qualification (ANZSCO Skill Level 3)

   
   At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

   Tasks Include:

   a.examining foodstuffs to ensure quality

   b.regulating temperatures of ovens, grills and other cooking equipment

   c.preparing and cooking food

   d.seasoning food during cooking

   e.portioning food, placing it on plates, and adding gravies, sauces and garnishes

   f.storing food in temperature controlled facilities

   g.preparing food to meet special dietary requirements

   h.may plan menus and estimate food requirements

   i.may train other kitchen staff and apprentices

   
   Occupation:

   351411 Cook

   
   351411 COOK

   
   Prepares, seasons and cooks food in a dining or catering establishment.

   Skill Level: 3

10. In his visa application the applicant did not provide the relevant documentary evidence of his skill level.  When the delegate requested further information, three photographs of the applicant in a cook’s uniform were provided.

11. Prior to the hearing the Tribunal received the following documents from the applicant:

    -An unsigned letter of recommendation from the Director of the sponsor;

    -Certificate IV in Commercial Cookery issued by Victorian College of Vocational Excellence dated 10 January 2018

    -Transcript of Results dated 10 January 2018

    -Diploma of Leadership and Management dated 31 March 2016 from the International Institute of Business and Management together with the Transcript of Results

    -Resume

    -Statutory Declaration of Mark Agius signed 20 January 2021 attesting to the applicant’s work experience in the restaurant

    -Statutory Declaration of Chen Rong, signed 21 January 2021 attesting to the applicant’s work experience in the restaurant

    -Statement of Attainment from the Hospitality Institute of Australasia in ‘Use Hygiene Practices for Food Safety’ dated 4 December 2015

12. The Tribunal is satisfied based on the documentary evidence provided that the applicant has attained a Certificate IV in Commercial Cookery.

13. The Tribunal acknowledges that this Certificate and relevant work experience were completed after the visa application was lodged.  However, cl.457.223(4)(da) is a time of decision criterion and the Tribunal is entitled to rely on this qualification notwithstanding that it had not yet been obtained at the time of lodging his application.

14. After reviewing all of the documentary evidence before it, the Tribunal is satisfied that the applicant does have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation and therefore meets the requirements of cl. 457.223(4)(da).

15. 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

16. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(da) of Schedule 2 to the Regulations

    Michelle East
    Member