Fontecchio (Migration)

[2020] AATA 4596

Fontecchio (Migration) [2020] AATA 4596 (4 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonatan Fontecchio

CASE NUMBER:  1810794

HOME AFFAIRS REFERENCE(S):          BCC2016/2591252

MEMBER:Stavros Georgiadis

DATE:4 October 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.234 of Schedule 2 to the Regulations.

Statement made on 4 October 2020 at 4:03pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Chef (ANZSCO 351311) – qualifications – evidence of relevant experience undertaken of at least three years that substitute for the formal qualifications – satisfies the skills level requirement – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 187.234

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 5 August 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Chef (ANZSCO 351311).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.234 of Schedule 2 to the Regulations because the delegate considered the applicant did not have the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation and found the applicant did not have a skills assessment carried out by the time of application.

6. The applicant appeared before the Tribunal on 20 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Italian and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether for the purposes of cl.187.234 the applicant possessed the qualifications listed in ANZSCO as being necessary to perform the tasks of the nominated occupation of Chef.

   Skills and qualifications

10. For applicants in the Direct Entry stream, cl.187.234 requires that at the time of application:

    ·     the applicant is in a specified class of persons (exempt persons), or

    ·     if the applicant’s occupation has been specified by the Minister and the applicant did not obtain the necessary qualification in Australia – that the applicant’s skills have been assessed as suitable for the occupation by a specified assessing authority (the skills assessment must meet certain requirements, depending on the date of visa application), or

    ·     if neither of the above applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

11. For visa applications made on or after 18 March 2018, applicants who are not exempt persons must also have been employed in the occupation for at least 3 years on a full time basis and at the level of skill required for the occupation.

12. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060 of the Register of Instruments: Business visas, and the occupations and relevant assessing authorities have been specified in IMMI12/096 of that Register of Instruments.  For the purpose of the skills assessment, if the visa application was made on or after 28 October 2013, the assessment cannot be one for a Subclass 485 (Temporary Graduate) visa. For visa applications made on or after 1 July 2014, the date of the assessment must not be more than three years before the date of visa application or, if the assessment specifies a period of validity less than 3 years after the date of assessment, that period must not have ended.  From the Department’s Movement Details, the applicant has not previously held a Subclass 485 visa.

13. The application for the Subclass 187 visas was lodged on 5 August 2016 under the Direct Entry stream.  The criteria set out in cl.187.234 must be satisfied by the applicant at the time of application. 

14. For the grant of the visa, the applicant must satisfy one of the three alternatives (a to c) set out in cl.187.234 of Schedule 2 of the Regulations which provides as follows:

    cl.187.234

    At the time of application:

    (a) the applicant was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph; or

    (b) all of the following requirements were met:

    (i) the applicant’s occupation is specified by the Minister in an instrument in writing for this subparagraph;
    (ii) the applicant did not obtain the necessary qualification in Australia;
    (iii) the applicant’s skills had been assessed as suitable for the occupation by an assessing authority specified by the Minister in the instrument for subparagraph (i) as the assessing authority for the occupation;
    (iv) the assessment was not for a Subclass 485 (Temporary Graduate) visa;
    (v) if the assessment specified a period during which the assessment was valid, and the period did not end more than 3 years after the date of the assessment - the period had not ended;
    (vi) if subparagraph (v) did not apply - not more than 3 years had passed since the date of the assessment; or

    (c) if neither paragraph (a) nor (b) applies, the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

15. The legislative instrument refers to the following classes of persons as exempt from skill requirement for the purposes of cl.187.234(a) of the Regulations:

    Class 1 - Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.

16. At the hearing, the applicant said that his earnings for the nominated occupation at the time of application were $55,000 per year and are now $58,000 per year as he continues to work in the role of Chef. This is consistent with the delegate’s decision.  Accordingly, the applicant is not exempt from the skills requirement as a person under Class 1, as the accepted level of remuneration is lower than the current Australian Tax Office top individual income tax rate.

    Class 2 - Persons who hold a Subclass 444 – Special Category visa; or Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa, and who have been working in their nominated occupation for their nominating employer for at least two years (excluding any periods of unpaid leave) in the previous three years, immediately before applying for their Subclass 187 – Regional Sponsored Migration Scheme visa.

17. The applicant responded when asked that he had not held any of the above visa classes.  This is confirmed in the aforementioned Movement Details of the Department and therefore, the Tribunal accepts the applicant’s oral evidence in this regard. The Tribunal finds that the applicant is not a person under Class 2 above as he does not hold a Subclass 444 or 461 visa.

18. Accordingly, the applicant does not meet cl.187.234(a).

19. The delegate noted as follows - Policy states:

    … “Clause 187.234(b) refers.

    The applicant must have their skills assessed by an assessing authority specified in the 187.234(b) legislative instrument if.
    · their occupation is specified in the legislative instrument and
    · the applicant did not obtain the necessary qualification for the nominated occupation in Australia.

    The applicant must provide evidence that their skills were assessed at time of application as being suitable for the occupation. A skills assessment undertaken after the visa application was made does not meet visa requirements.” …

20. At the hearing, the applicant confirmed that the position identified in the application is for the occupation of Chef (ANZSCO 351311). This is an occupation specified by the Minister in an instrument in writing for the purposes of cl.187.234(b)(i) [IMMI12/096 of the Register of Instruments]. This occupation requires an AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2).

21. The applicant provided evidence to the Tribunal of completing a Certificate IV in Hospitality (Commercial Cookery) in Australia. The applicant’s oral evidence is consistent with that set out in the visa application that the highest recognised qualification he has obtained in Australia is AQF Certificate IV.  According to his oral evidence and submissions he undertook other study overseas (in Italy) over a study period of 5 years to obtain a Diploma of Hospitality from Palermo, Italy in 2004. The applicant has provided documentary evidence of this Diploma to the Tribunal. However, as the applicant did not complete an AQF Associate Degree, Advanced  Diploma or Diploma in Australia, by the time of application he has not attained the necessary qualification in Australia.

22. The Tribunal finds from this and the visa application form that that at the time of application, the applicant did not have a suitable skills assessment from a relevant assessing authority, which is not for a Subclass 485 (Temporary Graduate) visa. There is no evidence before the Tribunal that the applicant’s skills were assessed at time of application as being suitable for the nominated occupation of Chef.

23. Therefore, the applicant does not meet cl.187.234(b).

24. As neither sub-paragraphs cl.187.234(a) nor (b) apply, the applicant must demonstrate that he has qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation at the time of lodging his application for the visa on 5 August 2016, or relevant experience that is commensurate to the formal qualification.  To meet this criterion, the applicant must demonstrate he had relevant experience of at least three years that may substitute for the formal qualifications required in ANZSCO 351311 for Chef: cl.187.234(c).

25. Following the hearing, the applicant (with leave) provided further written submissions in respect of relevant experience undertaken of at least three years that may substitute for the formal qualifications required in ANZSCO 351311 for the position of Chef.

26. The applicant’s further written submissions and documentary evidence including CV and work references under cover letter of 27 May 2020 are consistent with the oral evidence provided and set out as follows:

    … “The applicant has been a career chef his entire professional career. We provide a copy of his resume to demonstrate that he has worked in some capacity as a chef or head chef since he joined the work force in 2005 after he obtained his Diploma of Hospitality. He has been employed as a chef in the UK, Italy and Australia and has a combined total of more than 15 years’ experience in this position. He is currently working full time for his 482 sponsor in the nominated position at Trinacria Dining Pty Ltd. We provide two work references to support the evidence provided in his resume. Further work references can be provided however these are already in excess of the 3 years that are required by the regulations.” …

27. The ANZSCO 351311 classification sets out the role of Chef as one that: ‘plans and organises the preparation and cooking of food in dining and catering establishments’, which the Tribunal has had regard to. The applicant’s work history has been carefully considered and is supported by work references provided by the applicant and various past employers.  The Tribunal accepts the oral evidence that approximately 6 months after arriving in Australia in 2007 the applicant commenced work as a Chef.  The Tribunal accepts the evidence and written submissions discussed that the applicant has had extensive work experience as a Chef in Australia that spans a period of over 12 years in total.  The overriding purpose is to be satisfied the applicant has the requisite skills as being necessary to perform the tasks of the occupation of Chef when he lodged his application.  The Tribunal finds that this is the case in this matter.  The applicant has also continued to work in this occupation after lodging his visa application.

28. Given the relevant experience is at least three years, the applicant satisfies the skills level requirement of cl.187.234(c) as being necessary to perform the tasks of the nominated occupation, as he has demonstrated to have sufficient relevant experience commensurate with, and that may substitute for, the formal qualification set out in ANZSCO 351311 for the occupation of Chef:- Skill Level 2.

29. Accordingly, the applicant meets cl.187.234(c).

30. Therefore, cl.187.234 is met.

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

    DECISION

32. The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.234 of Schedule 2 to the Regulations.

    Stavros Georgiadis

    
    

    Member