Gurung (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, made by an applicant nominated by Eurobay Café:Bar for the occupation of chef. The applicant's initial nomination was approved in June 2015, but a new nomination application for the occupation of cook was lodged in May 2017. The Tribunal considered the applicant's skills, qualifications, and employment background in relation to the nominated occupation.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clauses 457.223(4)(da) and 457.223(4)(e) of Schedule 2 to the Regulations. Clause 457.223(4)(da) requires the applicant to possess the necessary skills, qualifications, and employment background for the nominated occupation, while clause 457.223(4)(e) mandates that the applicant demonstrate the required skills in the manner specified by the Minister, if so required. The Tribunal also had regard to the Departmental policy, which indicated that decision-makers should consider the Australian and New Zealand Standard Classification of Occupations (ANZSCO) when assessing these criteria.

The Tribunal reasoned that while Departmental policy, such as PAM 3, is not binding, it should be considered for consistency. The ANZSCO guidelines for a Chef (occupation code 351311) indicate a skill level of 2, which can be met by an AQF Associate Degree, Advanced Diploma, or Diploma, or alternatively, by at least three years of relevant experience. The Tribunal found that the applicant met the criteria under clauses 457.223(4)(da) and 457.223(4)(e).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the visa applicant meets the specified criteria under clauses 457.223(4)(da) and 457.223(4)(e) for a Subclass 457 visa.