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

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).
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.
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.
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.
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 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
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.
As recorded in the delegate’s decision, a copy of which was provided with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fiorella (Migration)

Details

AGLC: Fiorella (Migration) [2017] AATA 557
Case: [2017] AATA 557
Decision Date: 18 April 2017

CaseChat Overview and Summary

This matter concerned an application for review of a decision regarding a Temporary Business Entry (Class UC) visa, Subclass 457, for Mr Fiorella, who nominated the occupation of Cafe or Restaurant Manager. The central dispute revolved around whether Mr Fiorella met the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations, which mandates that an applicant possess the necessary skills, qualifications, and employment background for the nominated occupation.

The Tribunal was required to determine if Mr Fiorella's submitted qualifications and employment history satisfied the criteria for a Cafe or Restaurant Manager. Specifically, the Tribunal had to assess the equivalence of his overseas qualifications to the Australian Qualifications Framework (AQF) and evaluate the veracity and sufficiency of his claimed employment experience, particularly in light of potential inconsistencies and the application of Public Interest Criterion 4020.

The Tribunal reasoned that while Mr Fiorella initially provided a qualification deemed equivalent to Year 12, further documentation, including a Diploma in Catering Services Expert and an employment reference for a Bar Manager role, was submitted during the review process. However, the Tribunal noted discrepancies between his initial CV and subsequent submissions regarding his employment and study periods, raising concerns about potential breaches of s.234 of the Act (making false or misleading statements) and the applicability of Public Interest Criterion 4020. Given these complexities and the need for further clarification and evidence, the Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 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 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. 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. 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. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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