Gurung (Migration)

[2017] AATA 977

Gurung (Migration) [2017] AATA 977 (14 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sundar Gurung

CASE NUMBER:  1602609

DIBP REFERENCE(S):  BCC2015/1207317

MEMBER:Jennifer Ciantar

DATE:14 June 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 visa applicant meets the following criteria for a Subclass 457 visa:

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

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

Statement made on 14 June 2017 at 3:29pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Chef – Three years’ relevant experience as substitute for formal qualifications – Evidence provided of necessary skills and employment background

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 April 2015.

3. At the time the visa 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). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visa on 10 February 2016 on the basis that cl.457.223(4)(e) was not met because the delegate was not satisfied that the applicant demonstrated that he has the skills that are necessary to perform the nominated occupation of chef in the manner specified by the Minister.

5. The applicant appeared before the Tribunal on 6 June 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da) and (e).

9. The applicant’s approved standard business sponsor is Eurobay Café:Bar. The applicant was the subject of a nomination approved on 16 June 2015. A new nomination application for the occupation of cook was lodged by the sponsor on 30 May 2017. The Tribunal indicated that the nominated occupation is now the subject of a caveat related to the nature of the business but the Department would make an assessment of this as part of the nomination application. An approved nomination is required to meet cl.457.223(4)(a).

   Skills, qualification and employment background of the applicant

10. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is chef.

11. The Departmental policy indicates that decision-makers should have regard to ANZSCO in assessing whether the applicant meets the criteria. The Tribunal took into consideration the policy of the Department set out in PAM 3.  The Tribunal observes that whilst it may be guided by policy it is not bound to follow it.[1] The Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations.  However in the interests of consistency in decision-making, the Tribunal considered that it should have regard to the policy in this case. The policy notes, amongst other things, that the qualifications and experience of the applicant should be commensurate with the qualifications and experience specified for the occupation in the relevant ANZSCO Code. It goes on to state that the ANZSCO should be referred to as the principal source of information on the normal tasks or duties and skill requirements for occupations in Australia.  It notes that ANZSCO skill level references represent the entry level skill required for a particular occupation. In all cases, case officers must be satisfied that the applicant has the skills to be able to perform the nominated occupation. ANZSCO provides guidance as to the level of qualification required and/or the number of years of experience a person should have in order to be able to perform the occupation.

    [1]           See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

12. In ANZSCO the following information regarding the duties and skills are listed:

    
    CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

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

    
    In New Zealand:

    NZ Register Diploma (ANZSCO Skill Level 2)

    
    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:

    o   planning menus, estimating food and labour costs, and ordering food supplies

    o   monitoring quality of dishes at all stages of preparation and presentation

    o   discussing food preparation issues with Managers, Dieticians and kitchen and waiting staff

    o   demonstrating techniques and advising on cooking procedures

    o   preparing and cooking food

    o   explaining and enforcing hygiene regulations

    o   may select and train staff

    o   may freeze and preserve foods

    
    Occupation:

    351311 Chef

    
    351311 CHEF

    
    Plans and organises the preparation and cooking of food in a dining or catering establishment.

    Skill Level: 2

13. The applicant has a Diploma in Hospitality although it was issued on the basis of Recognition of Prior Learning. However, there is no evidence that the Diploma is not genuine. In any case, the Tribunal is satisfied that the applicant has had at least 3 years of relevant experience as he has worked as a chef since 2013.

14. On 19 October 2015 and 3 December 2015 the applicant was asked to undertake a TRA migration skills assessment. The applicant advised the Department that a TRA 457 skills assessment is only available to applicants from specified countries, for specified occupations, and he is not eligible. In regard to the TRA broader skills assessment, the applicant would not be eligible unless he has completed 6 years full time work experience in the occupation.  The delegate then refused the visa as the applicant had not demonstrated that he has the necessary skills.

15. The Tribunal discussed with the applicant at the hearing his qualifications and work experience in order to assess whether the applicant meets the requirements in cl.457.223(4)(da). The Tribunal had regard to the information regarding the applicant’s work history and experience. After careful consideration of the department policy, the documentary evidence and the oral evidence of the applicant, the Tribunal was satisfied that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, chef.

16. The applicant provided the Tribunal with additional information including numerous photos of himself in his workplace and a letter from the sponsoring employer, Mr Peter Mougias, owner, Eurobay Café:Bar, who writes that the applicant has worked in the business as a chef since 15 December 2013. The applicant began on a trial basis but demonstrated strong skills and after 6 months, the employer decided to sponsor the applicant under the 457 program. The letter sets out the applicant’s duties and also states that the business has had other chefs but the applicant is currently their only chef and the business would be adversely affected if he was not retained. The applicant also provided an organisation chart which shows that the business usually employs 2 chefs and 4 cooks, plus other staff. The applicant also stated that the owner has 6 restaurants which are all different and includes 2 function centres. Recently, Eurobay has begun to offer a take-out service for simple meals such as burgers or pasta.

17. The applicant provided the Tribunal with detailed information about his duties. He commenced work at Eurobay in mid-2012 and was supervised by the former chef. He was promoted to the position of chef in late 2013 and for the last 1 to 2 years he has been the only chef. He is paid more than the cooks and he provides them with recipes so that food is cooked consistently. When kitchen staff are recruited he checks resumes but is not otherwise involved in the recruitment process. However, he supervises the work of the cooks and kitchen hand, and addresses any issues that arise regarding their work by giving feedback and offering assistance. The restaurant is open from 8am to late, 7 days per week. There would be more than 100 items on the menu, which changes at the time of change of season. At the start of last summer the menu underwent major changes in order to introduce more European style dishes such as beef bourguignon. The business also employs 4 cooks and the applicant is responsible for supervising them. He draws up the roster after a weekly meeting which includes the restaurant manager. He checks supplies and sends orders to the employer who then places the orders with suppliers. The applicant checks deliveries and  monitors costs. He provides advice to the employer about changes in costs. He monitors customer feedback by talking to floor staff and he also provides customers with explanations about dishes and caters for special needs such as gluten free foods.

18. The applicant also stated that he came to Australia as the holder of a student visa and he completed a Certificate IV in Business and commenced a Bachelor degree but discontinued it after he began working at Eurobay. He was awarded a Diploma of Hospitality based on recognition of prior learning. He had not attended any classes but an assessor from Metro College had observed his work at Eurobay which was recorded in photos and video. The applicant also completed 2 assessments on the computer. His employment at Eurobay is his only work experience as a chef and he had worked as a cook in Nepal but this experience would not be recognised by TRA. However, he had more than 3 years’ experience as a chef, which meets the suggested skill level requirements in ANZSCO.

19. The Tribunal has considered the evidence provided about the tasks that the applicant undertakes as a chef at Eurobay, which are also set out in letters provided by the owner of the sponsoring business. The Tribunal is satisfied that the applicant performs most of the tasks as set out in the ANZSCO guide for the nominated occupation.

20. After having regard to the Department’s policy and ANZSCO Code, the Tribunal is satisfied that, as at the date of decision, on the basis of the applicant’s work experience at Eurobay, the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

21. As the Tribunal is satisfied the applicant meets the requirements of cl.457.223(da), the Tribunal considers it unnecessary to require the applicant to demonstrate his skills but the Tribunal is satisfied that the applicant has demonstrated his skills through the evidence provided about his work experience as a chef at Eurobay.

22. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

23. 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

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

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

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

    Jennifer Ciantar
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    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

    (eb)if:

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

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

    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.