Hernandez Ocampo (Migration)

[2019] AATA 4007

Hernandez Ocampo (Migration) [2019] AATA 4007 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ana Maria Hernandez Ocampo
Mr Sergio Samir Caceres Anaya

CASE NUMBER:  1700576

DIBP REFERENCE(S):  BCC2015/2583216

MEMBER:Amanda Mendes Da Costa

DATE:15 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – skills and qualifications – written references not verified – credible witnesses – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 4 September 2015.

3. At the time the visa applications were 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 visas on 22 December 2016 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the first named applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

5. The applicants appeared before the Tribunal on 12 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Angelo Theophylactou.  The Tribunal was provided with the following documents prior to the hearing:

   ·Copy Diploma of Hospitality issued by FMEDGE on 24 March 2017.

   ·Confirmation of Employment dated 11 July 2019, authored by Mr Angelo Theophylactou.

   ·Employment payment details for the first named applicant.

   ·PAYG Payment Summaries for the first named applicant for the years ended 30 June 2017 and 2018.

   ·Notices of Assessment for the first named applicant for the years ended 30 June 2017 and 2018.

6. The applicants were represented in relation to the review by their 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 first named  applicant meets the requirements of cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

9. 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 Café or Restaurant Manager ANZSCO 141111.

10. In her decision, the delegate noted that the first named applicant had provided the Department with a written reference from her previous employer in support of the visa application.  The delegate was not satisfied that the contents of the reference could be verified as the business which employed the first named applicant had been sold and the first named applicant’s employment reference could not be verified after a search of former employee records by current staff.

11. The first named applicant told the Tribunal that before she arrived in Australia she was employed in Colombia as a Café or Restaurant Manager at the Pan Norte Restaurant in Santiago.  She was employed in that role from 2009 to 2012 whilst she was studying for her Architecture degree.  During term time she was employed on a part-time basis and during holidays she was employed on a full-time basis.

12. After her arrival in 2013 the first named applicant commenced employment with the nominator as a Cafe or Restaurant Manager.  The Tribunal notes that the first named applicant has also been issued with Copy Diploma of Hospitality issued by FMEDGE on 24 March 2017.

13. Mr Theophylactou is a director of the company nominating the first named applicant.  He told the Tribunal that the company operates a business with three restaurants in the Melbourne CBD. He said the first named applicant had been employed in the business since shortly after its inception in 2013 as a Restaurant Manager.  Whilst he operates two of the restaurants the first named applicant manages the largest of the restaurants.  He described the first named applicant’s duties and skills in the business, which were commensurate with the duties and skills for a Café or Restaurant Manager as set out in ANZSCO 141111.  Mr Theophylactou said the first named applicant was a skilled and dedicated employee who already possessed the necessary skills as a Café or Restaurant Manager when she commenced her employment with the nominator.  Those skills had increased significantly over the course of her employment.

14. The Tribunal found the first named applicant and Mr Theophylactou to be credible and convincing witnesses and accepted their evidence.

15. The Tribunal is satisfied on the basis of both the documentary and oral evidence before it that the first named applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

16. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

17. In relation to the second named applicant, the Tribunal finds that as the first named applicant satisfies the criteria for grant of a Temporary Business Entry (Class UC) visa, the second  named applicants meet the criteria for a Subclass 457 visa as a member of the family unit of a person who has satisfied the primary criteria.

18. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 457 visas.

    DECISION

19. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

    Amanda Mendes Da Costa
    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.