Fiorella (Migration)

[2017] AATA 557

Fiorella (Migration) [2017] AATA 557 (18 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luigi Fiorella

CASE NUMBER:  1511745

DIBP REFERENCE(S):  BCC2015/251626

MEMBER:Katie Malyon

DATE:18 April 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 applicant meets the following criteria for a Subclass 457 visa:

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

Statement made on 18 April 2017 at 9:05 pm

CATCHWORDS

Migration –

Temporary Business Entry (Class UC) visa – Subclass 457 –
Skills, qualifications and/or employment background – Cafe or Restaurant Manager – Overseas qualification – Australian Qualifications Framework – Requisite qualifications, skills and employment background

LEGISLATION

Migration Act 1958, s 65, 234, 359A

Migration Regulations 1994, Schedule 2, cl 457.223(4)(da), PIC 4020

CASES

Joshi v MIMIA [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 Immigration on 6 August 2015 to refuse to grant the visa applicant, Mr Luigi Fiorella, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Fiorella applied for the visa on 23 January 2015. 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).  Relevant extracts are set out in the Attachment to this decision. 

3. The delegate refused to grant the visa on the basis that cl.457.223(4)(da) was not met because, although he had been successfully nominated by his employer and prospective sponsor Ciccia Bella Pty Ltd ATF Ciccia Bella Unit Trust (Ciccia Bella) in the occupation of Cafe or Restaurant Manager ANZSCO 141111, the delegate was not satisfied that Mr Fiorella had the skills, qualifications and/or employment background necessary to perform the tasks of the nominated occupation.

4. Mr Fiorella appeared before the Tribunal on 30 January 2017 to give evidence and present arguments.  The Tribunal also received oral evidence from Cristian Poddine, Venue Manager with Ciccia Bella at its Da Orazio Pizza and Porchetta restaurant.  Mr Fiorella was represented in relation to the review by his registered migration agent, who also attended the hearing.

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 the present case is whether the visa applicant meets the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations.

   Skills, qualification and employment background of the applicant

7. Clause 457.223(4)(da) of Schedule 2 to the Regulations requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In this case, the nominated occupation is Cafe or Restaurant Manager ANZSCO 141111.

8. As recorded in the delegate’s decision, a copy of which was provided with the review application, Mr Fiorella provided with his Subclass 457 visa application a Certificate for Intermediate Diploma in Catering Banquet Hall – Bar Sector from the Governmental Vocational School for Hotel and Restaurant Services, Italy undertaken in Academic Year 2003/2004 (the Certificate).  The Certificate was referred by the Department to the overseas post for verification.  It was determined that the qualification was equivalent to completing secondary school at Year 12 level but does not compare to what is regarded as a Diploma under the Australian Qualifications Framework (AQF).  Invited to comment on this information, the applicant noted that he has over 6 years’ relevant employment experience but did not provide any evidence to support his claim. 

9. After lodging the review application, Mr Fiorella’s representative provided the Tribunal with:

   ·     a Diploma – Catering Services Expert issued to Mr Fiorella by the Aldo Moro School of the Ministry of Education, University and Research for Academic Year 2005/2006 (that is, September 2005 until June 2006) in Italian with NAATI accredited translation (the Diploma); and,

   ·     an employment reference from American Bar Cluny Di Di Paola Filomena & C. Sas, Tioia, Italy confirming Mr Fiorella’s appointment and duties as a Bar Manager from December 2007 to September 2011. 

10. Prior to the hearing, the Tribunal sent to Mr Fiorella a letter pursuant to s.359A of the Act noting the receipt of the Diploma and that Mr Fiorella had provided the Department with a CV in support of his Subclass 457 visa application which states that he worked at the Vittoria Restaurant in Edinburgh, Scotland as a Barman from September 2005 until December 2005 and then as a Bar Manager from January 2006 until October 2007. In addition, his CV lodged with the Department made no reference to his claim that he had studied for the Diploma in the period September 2006 to January 2007 (despite referring to and attaching evidence of completing the Certificate). The Tribunal advised Mr Fiorella that it appears he has made statements that, to his knowledge, were false or misleading in a material particular in breach of s.234 of the Act and that Public Interest Criterion 4020 may, as a result, be enlivened.

11. Mr Fiorella’s representative provided the Tribunal with the following in response to the letter issued pursuant to s.359A of the Act:

    ·     Statutory Declaration from Mr Fiorella sworn 17 January 2017;

    ·     UK HM Revenue & Customs P45 tax documentation confirming period of work at Vittoria Restaurant in Edinburgh together with supporting documentation;

    ·     a revised CV.

12. Prior to the hearing Mr Fiorella’s representative also provided the Tribunal with:

    ·     an employment reference from Icebergs Dining Room and Bar, Bondi Beach confirming Mr Fiorella’s appointment and duties as a Bar Manager from 20 March 2012 to 16 September 2012 and again from 15 November 2013 to 10 January 2014;

    ·     an employment reference from Ciccia Bella dated 16 January 2017 confirming Mr Fiorella’s ongoing appointment and duties as a Bar Manager from 13 January 2014 to date; and,

    ·     evidence of lodgement of a new nomination by Ciccia Bella dated 25 January 2017 for the nominated occupation of Cafe or Restaurant Manager in respect of Mr Fiorella (the former nomination had expired on 10 March 2016).  On 9 March 2017 the Tribunal received notice that Ciccia Bella’s nomination of the position of Cafe or Restaurant Manager ANZCSO 141111 in respect of the nominee Mr Fiorella was approved. 

    Hearing

13. During the course of the hearing, Mr Fiorella reiterated statements made in his Statutory Declaration.  Essentially, he confirms that he studied for and completed the Certificate at Ministero Dell’Instruzione, Dell’Universita e Della Ricerca’s Government Vocational School for Hotel and Restaurant Services in the 2003/04 academic year and then, in the 2005/2006 academic year, he studied for and completed the Diploma at Ministero Dell’Instruzione, Dell’Universita e Della Ricerca’s Institute of Aldo Moro School.  He confirmed that, unlike Australia, the academic year in Italy runs from September in one year through to June the following year.  He provided the Tribunal at the hearing with the originals of both the Certificate and the Diploma in Italian together with NAATI accredited translations thereof.

14. The original Diploma comes with a summary of the course on the back of the Diploma in Italian, English, French, German and Spanish.  The text states that the Diploma “holder is familiar with all catering services including bar service and the planning and provision of parties, banquets and buffet meals, and with the ingredients of dishes and choice of suitable wines.  He/she has the relevant knowledge of the principles of nutrition, food preservation and special dietary needs”. 

15. Mr Fiorella the told the Tribunal that, after he finished the Diploma, he went to work at the Vittoria Restaurant in Edinburgh.  This was his first job.  He said he worked there from 27 July 2006 until 30 September 2007.  Mr Fiorella explained that, in his CV, he erroneously wrote the incorrect start date for his employment in Edinburgh and that this was an innocent mistake, not done with any intention to mislead the Department.  He said the reason for the error was that he mistakenly put the incorrect completion date for his Diploma when he wrote “07/2005” instead of “07/2006”.  Because Vittoria Restaurant in Edinburgh was his first job, he just followed the date through in his CV from memory without checking and he got both the month and the year wrong.  He added that, as evidence this was a genuine mistake on his part not done with any intention to mislead or provide false information, he provided the Tribunal with the HM Revenue & Customs tax documentation which covers the period of his employment with Vittoria Restaurant in Edinburgh.  He noted this documentation was attached to his Subclass 457 visa application when lodged on 24 March 2015 and it clearly shows the dates that he worked at Vittoria Restaurant.  The Tribunal has examined the Department’s file and confirmed these details.  Mr Fiorella expressed deep regret about his error in his CV submitted with his Subclass 457 visa application.

16. Asked to explain why he did not lodge his Diploma with his Subclass 457 visa application Mr Fiorella said he didn’t have all of the documentation with him at the time and he had to wait until the original came from Italy.  By the time it arrived, it was too late.

17. The Tribunal referred the Diploma to the overseas post for verification and to determine if it is equivalent to an AQF Diploma.  The post confirmed that it had spoken with a named person at the Administration Department of the Aldo Moro School who confirmed that the Diploma is genuine.  Whilst the post noted it was unable to provide a precise determination with regard to a comparison to the AFQ system and observed that it is clear the Diploma is not equivalent to a Bachelor degree or a tertiary education as defined by the AQF, it confirmed “the Diploma is equivalent to a professional trade qualification and the holder has access to specific professions such as Cook, Head Waiter, Chef de Rang or Bartender”. 

    Does the applicant have the skills, qualification and employment background required?

18. Mr Fiorella has been nominated for the occupation of Cafe or Restaurant Manager ANZSCO 141111.  As noted in the delegate’s decision, the occupation’s indicative qualifications and tasks as set out in the Australia and New Zealand Standard Classification of Occupations (ANZSCO).[1]   While ANZSCO is not binding on the Tribunal, it has nonetheless referred to ANZSCO to inform its consideration of whether Mr Fiorella has the skills, qualifications and employment background necessary to perform the nominated occupation.

    [1] ttp://>

    ANZSCO records the indicative skill level for the occupation of Cafe or Restaurant Manager Code 141111, which is part of the Unit Group 1411 Cafe and Restaurant Managers as:

    ·AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2).

    ·At least 3 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.

19. ANZSCO states that Cafe or Restaurant Managers organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.  The tasks of the occupations within this Unit Group are listed in ANZSCO as including:

    ·     planning menus in consultation with Chefs

    ·      planning and organising special functions

    ·      arranging the purchasing and pricing of goods according to budget

    ·      maintaining records of stock levels and financial transactions

    ·      ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    ·      conferring with customers to assess their satisfaction with meals and service

    ·      selecting, training and supervising waiting and kitchen staff

    ·      may take reservations, greet guests and assist in taking orders

20. In reaching a level of satisfaction regarding Mr Fiorella’s relevant qualifications and experience the Tribunal accepts that the determination requires more than a narrow matching process between the tasks undertaken and the ANZSCO occupational definition.  In an earlier version of this clause, the Court in Joshi v MIMIA held the sensible and correct approach requires the ascertainment of the attributes and skills of an applicant and how those attributes and skills are being applied in the workplace for remuneration.[2]

    [2] Joshi v MIMIA [2005] FMCA 1116 (McInnis FM, 12 August 2005).

21. The Tribunal notes that significant documentation not available to the Department has been provided by Mr Fiorella’s representative to the Tribunal.  In addition, Venue Manager Mr Poddine told the Tribunal that Ciccia Bella’s restaurant, Da Orazio Pizza and Porchetta, in Bondi operates a 99 seat restaurant and that Mr Fiorella is a real asset to the business.  He added that roughly 60% of revenue comes from food with 40% from beverages.  Revenue for the current year is significantly more than last year, up by about 20%.  In his opinion, Mr Fiorella has all the necessary skills to fill the role of Restaurant Manager outlined in ANZSCO and referred to above.  He opined that, although he has qualifications from Italy and has lived in Australia for 20 years, Mr Fiorella’s qualifications are much higher than his because Mr Fiorella went to the Aldo Moro School and, moreover, Mr Fiorella has been working in restaurants for many years including Vittoria Restaurant in Scotland, Icebergs Dining Room and Bar at Bondi as well as Da Orazio Pizza and Porchetta in Bondi.  As a result, he is firmly of the opinion that Mr Fiorella has the knowledge and skills required for the job. 

22. The Tribunal also discussed the tasks of the nominated occupation with Mr Fiorella as well as his qualifications and experience of this job.  His qualifications include the Certificate and, significantly, the Diploma: both have been confirmed by the post as genuine.  In addition, the statements of service provided by Mr Fiorella from some of his former employers and Mr Poddine’s oral evidence confirm for the Tribunal that Mr Fiorella more than 7 years relevant work experience.

23. Based on the evidence provided, the Tribunal is satisfied Mr Fiorella has demonstrated he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Cafe or Restaurant Manager and that, specifically, he has the skills and experience to organise and control the operations of the Da Orazio Pizza and Porchetta restaurant, as well as any related establishments, to provide dining and catering services.

24. 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

25. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

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

    Katie Malyon

    
    Member

    ATTACHMENT
    
     Extract from Clause 457.223 of Part 457 of Schedule 2 of the Migration Regulations 1994
    
    

    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

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    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.

    oOOo