Dal Corso (Migration)

[2022] AATA 2244

Dal Corso (Migration) [2022] AATA 2244 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Giulia Dal Corso

REPRESENTATIVE:  Ms Zhemin Shen (MARN: 1388250)

CASE NUMBER:  1909122

HOME AFFAIRS REFERENCE(S):          BCC2019/376959

MEMBER:Warren Stooke AM

DATE:1 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.221 of Schedule 2 to the Regulations; and

·cl 482.212 of Schedule 2 to the Regulations.

Statement made on 1 July 2022 at 9:00am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Accommodation and Hospitality Manager (nec) – at least 2 years of relevant experience – English language proficiency – genuine position – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 482.212, 482.221, 482.223

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 25 March 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 February 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Hospitality Manager (nec) – ANZSCO Code: 141999.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212 of Schedule 2 to the Regulations because the applicant was not the subject of an approved nomination

4. The applicant appeared before the Tribunal on 7 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Cedric Bardou, the General Manager for Five Seasons Development Group Pty Ltd. 

5. The applicant stated at hearing that she had read and provided a copy of the delegate’s decision to the Tribunal with her application for review.

6. The applicant stated that she understood her visa application had been refused because of missing a signature on the contract of employment.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has an approved standard business sponsor for the Short-term stream to work in the nominated occupation of Hospitality Manager (nec) – ANZSCO Code: 141999.

10. The applicant is a 28 year old from Italy, who was granted a Bridging Visa A on 7 February 2019 with work limitation 8547 that requires the holder not to be employed by anyone employer for a period of six months without the prior permission of the Secretary. The applicant originally arrived in Australia on a 417 Working Holiday Visa.

11. The nominee was granted a most recent Bridging Visa A on 3 March 2022

12. The nominee provided evidence of an IELTS English language test undertaken on 15 January 2019 with an original score of overall of 7.0, which has increased to 7.7 in the most recent IELTS test.

13. The nominee stated that she understood her application for a visa had been refused because the original contract of employment was not signed.

14. The nominee provided the Tribunal with evidence that her position as a Venue Manager includes the following duties:

    a.Management of the day to day operation, including rostering; hiring; bookings and events;

    b.Management of the three night clubs;

    c.Training of staff in the bar, kitchen and floor;

    d.Creation of an effective organisation to manage three levels (venues) of operation together;

    e.Eliminate wastage;

    f.Organise menus and cocktails;

    g.Organise cleaning and DJ hire.

15. The nominee provided evidence that she completed a sommelier course in Italy before arriving in Australia and was employed as a waitress in June 2018 prior to promotion to supervisor and now the Venue Manager.

    Evidence of Mr Cedric Bardou (Nominating Sponsor)

16. The nominating sponsor stated that he is the General Manager and in charge of marketing, public relations and contact with suppliers and contractors and that the nominee, Ms Dal Corso is the manager of the managers for each of the venues, training, rostering and the smooth operation of the business.

17. The nominating sponsor provided evidence that the business was registered with ASIC on 15 August 2016, as Five Seasons Development Group Pty Ltd and assigned that an ABN 628 611 156 668.

18. The nominating sponsor provided evidence of a contract of employment with the nominee dated 30 January 2019 as a Venue Manager full-time and salary of $65,000, plus superannuation. The contract was signed on 30 January 2019 by the nominee and on 6 February 2019 by the director.

19. The sponsorship was approved on 21 February 2019 and remains active until 21 February 2024.

20. The nominating sponsor provided a copy of the organisation chart where the Venue Manager reports to the Director and that the appplicant has 3 Shift Managers, as direct reports and subordinate 17 casual staff.

21. The nominating sponsor has nominated the position as Accommodation and Hospitality Manager (nec) – ANZSCO Code: 141999 [Item 42] as prescribed in IMMI – 18/048.

22. The nominating sponsor stated that the business consisted of three night-club venues offering hospitality, that included a Latin night club and cocktail bars employing 27 employees and is able to accommodate 600 patrons.

23. The nominating sponsor stated that the current turnover for the business was about the same as pre-pandemic.

24. The nominating sponsor stated that the venue has some food service but mainly cheese platters and bruschetta.

25. The nominating sponsor provided evidence that the nominee is employed full-time on a salary of $65,000 plus superannuation with Hostplus.

26. The nominating sponsor provided the Tribunal with the following schedule of duties undertaken by the applicant:

    ·responsible for all aspects of the business including, but not limited to, brand & quality control, social media, marketing, HR and training, financial administration and the day to day running of the three venues at Euro House;

    ·supervising shift managers;

    ·creating guidelines for staff rostering;

    ·observing liquor, OH&S and all relevant laws and regulations and ensure compliance at all times;

    ·planning and organising functions and entertainment activities;

    ·directing reservations;

    ·managing the selection, formation, and training of staff;

    ·monitoring team performance;

    ·conducting team meetings;

    ·implement company policies and procedures;

    ·monitoring the quality of food/drink preparation, presentation, and customer services;

    ·working with directors and marketing manager to develop and implement marketing and promotional activities;

    ·assisting in menu creation and adjustment;

    ·monitoring and maintaining financial records;

    ·Main tasks: monitoring staff performance to ensure high standard customer services and presentation;

    ·implement and monitor compliance with company policies and

    ·procedures;

    ·Nomination for a Temporary Skill Shortage Visa managing and approving staff rosters;

    ·cost control to ensure financial performance meets the targets

    ·set by the directors;

    ·assisting menu creation and adjustments;

    ·supervise shift managers and duties allocation.

27. The nominating sponsor provided evidence of the following overview of the business and other information about the position, including information about why this position cannot be filled from the local labour market:

    a.Eurohouse is a diverse and unique establishment in the heart of Melbourne city. It hosts three distinctive European bars in one building, The vision behind Eurohouse is to share the different aspects of European culture and way of life with Australian public from all age and background in an intimate and welcoming setting. The venues have a total capacity of 500. We host regular events every week and cater for private functions.

    b.To advance this vision, Eurohouse requires a dynamic and passionate venue manager on a full-time basis. The ideal candidate must have authentic knowledge of European culture and the hospitality industry in Melbourne, is fluid, dynamic and hospitality loving, who loves the social scene and has what it takes to take the brand and team spirit of Eurohouse to the next level. The person needs to understand and appreciate the subtle difference and uniqueness of these three venues when coordinating the daily operation and team building to reflect their respective themes, yet maintaining a coherent and consistent brand image of Eurohouse.

    c.For these reasons, we have not been able to find a candidate who possesses all these qualities locally. Our industry tends to have high staff turnover and the top Australian talents often choose to go overseas or start their own venues.

28. The nominating sponsor provided evidence that the applicant had completed a one year sommelier training course in Italy and had 3 years experience when she was recruited and now has 6 years of experience. He stated that the nominee started as a waitress and is now manager for the whole building.

29. The nominating sponsor stated that the nominee works from 38 to 44 hours per week depending on whether employees are off sick.

30. The nominating sponsor stated that the nominee has a Bridging Visa A that is renewed each six months and the recent visa was granted on 3 March 2022.

    Requirement to have worked for at least 2 years

31. Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

32. The Tribunal is satisfied that the evidence of the nominating sponsor has demonstrated that the applicant had completed a one year sommelier training course in Italy and had 3 years experience when she was recruited and now has 6 years of experience. He stated that the applicant started as a waitress and is now manager for the whole building. As such, the Tribunal is satisfied that the applicant has had more than 2 years experience in the nominated occupation of Accommodation and Hospitality Manager (nec) – ANZSCO Code: 141999 [Item 42] as prescribed in IMMI – 18/048.

33. For these reasons, cl 482.221 is met.

    English language proficiency

34. Clause 482.223(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.223(2), which enables the Minister to require the applicant to demonstrate their English language proficiency in a specified manner, does not apply in this case.

35. The relevant instrument for cl 482.223(1) is IMMI LIN 19/218 - Business Visas. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

36. The applicant provided the Tribunal with evidence of an IELTS English language test undertaken on 15 January 2019 with an original score of overall of 7.0, which has increased to 7.7 in the most recent IELTS test.

37. Accordingly, the Tribunal is satisfied that the applicant’s English language test results have met the requirements of cl. 482.223.

38. For these reasons, the applicant meets the requirements of cl 482.223.

    Genuine Position

39. The Tribunal is satisfied, based upon the evidence, that the applicant is performing duties commensurate with the scope of duties prescribed in the nominated occupation of Accommodation and Hospitality Manager (nec) – ANZSCO Code: 141999 [Item 42] as prescribed in IMMI – 18/048.

40. Accordingly, the applicant has met the requirements of cl 482.212.

41. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

42. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.221 of Schedule 2 to the Regulations; and

    ·cl 482.212 of Schedule 2 to the Regulations.

    Warren Stooke AM
    Member