KAYA (Migration)

[2017] AATA 2347

KAYA (Migration) [2017] AATA 2347 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MEDENI KAYA

CASE NUMBER:  1619954

DIBP REFERENCE(S):  BCC2016/2223779

MEMBER:Stephen Conwell

DATE:10 November 2017

PLACE OF DECISION:  Melbourne

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.

Statement made on 10 November 2017 at 5:40pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background necessary to perform nominated occupation – Cook

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 made by a delegate of the Minister for Immigration (‘the Minister’) on 10 November 2016 to refuse to grant the visa Applicant a Temporary Business Entry (Class UC) Subclass 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The Applicant applied for the visa on 30 June 2016. 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.

3. The delegate refused to grant the visa on 10 November 2016 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the Applicant  has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a cook.

4. The Applicant applied to the Tribunal on 25 November 2016 for review of the delegate’s decision. Along with the review application, the Applicant provided a copy of the primary decision record.

5. By email dated 23 May 2017, the Applicant’s representative submitted to the Tribunal:

• the representative’s response of same date setting out the Applicant’s work and study history;

• Annexure I – Notification of approval of nomination (approved on 14 September 2016);

• Annexure II – Certificate III in Commercial Cookery  (17 of 25 units RPL);

• Annexure III – Certificate IV in Commercial Cookery (25 of 33 units RPL);

• Annexure IV – Study Units description and various recipes;

• Annexure V –  Employer reference letter from Turkish Kebab House, Langkawi, Malaysia;

• Annexure VI –  2 x Payslips Nov-14 and Dec-14 from Turkish Kebab House;

• Annexure VII –  photos of Applicant preparing food and working in the kitchen;

• Annexure VIII –  Statutory Declaration of Nader Tawfer, director of Leyalina Restaurant, dated 25 May 2017;

• Annexure IX –  Payslips from Leyalina from 20 June 2016 to 21 May 2017

1. By email dated 6 October 2017, the Applicant’s representative presented a final submission to the Tribunal in preparation for this Hearing.  On examination the final submission is simply a copy of the 23 May submission.

2. The Applicant appeared before the Tribunal on 18 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Nader Tawfer, director of Leyalina restaurant.

3. The Applicant was represented in relation to the review by his registered migration agent. In the migration agent’s submission:

• the Applicant claimed to have a total 92 months (7.6 years) of relevant employment experience as a cook, acquired through his employment at several restaurants in Malaysia and through his employment with Leyalina restaurant since his arrival in Australia.

• the only documentary evidence of this overseas experience was an employer reference letter dated 8 November 2016 and 2 monthly payslips for November and December 2014 from Turkish Kebab House, the Applicant’s last place of employment in Malaysia. The letter stated that the Applicant worked at the restaurant for a year throughout 2014 as a cook.

1. The submission contained no other documentary evidence of the Applicant’s employment history in Malaysia, however the submission petitioned the Tribunal that the Applicant’s claimed work history in Malaysia and his employment at Leyalina restaurant in Melbourne should be accepted as meeting the requirements of cl.457.223(4)(da).

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary visa Applicant meets the requirements of cl.457.223(4)(da).

Skills, qualification and employment background of the Applicant

1. 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 cook.

2. The Tribunal notes that the ANZSCO guide indicates that in respect of the occupation of cook, the indicative skill level is an AQF Certificate III including at least two years of on-the-job-training, or AQF Certificate IV (ANZSCO Skill level 3). At least three years of relevant experience may substitute for the formal qualifications. Departmental policy indicates that decision-makers should have regard to ANZSCO in assessing whether the Applicant meets the criteria for assessing the skills qualification and experience to perform the occupation.

3. According to ANZSCO, cooks prepare, season and cook food in dining and catering establishments. The type of establishment does not ordinarily include fast food restaurants or small family cafes or takeaway shops, as found in food halls and malls, where the menus are limited and food preparation relatively simple.

4. The Tribunal may also be guided by policy and have regard to the Procedural Advice Manual 3 (PAM). The Manual is an administrative advisory guide to decision-makers and notes that ANZSCO should be referred to as the principal source of information on the tasks, duties and skill requirements for various occupations.

5. PAM notes that fundamentally, the primary role of a cook is one of cooking where the tasks which are likely to be performed may be at a lower level of skill than, for example, skill level for a chef. The occupation of cook may be relevant for small to mid-size restaurants and establishments (even those providing takeaway facilities) and casual dining and may vary from time to time based on the tasks being performed in the particular environment.

6. PAM further notes that in considering the skill level, regard should be had to the food offered, where it is cooked, whether it is supplied by another outlet, the menu and range of food offered together with the relative complexity of the preparation of the food. The environment may also be relevant, for example, if there is table seating or dining facilities available on the premises or whether food is offered in a packaged form for takeaway purposes.

7. It is not disputed that the Applicant has an Australian Certificate III and IV in Commercial Cookery both awarded in 2016 by All Australian Training Pty Ltd. The question before the Tribunal was whether, having regard to the above evidence, the Tribunal is satisfied that the Applicant has the skills, qualifications and employment background to perform the tasks of the nominated occupation of cook and that he therefore meets cl.457.223(4)(da).

8. The Tribunal had to consider how much weight to give to the Applicant’s evidence of having worked as a cook in Malaysia for a total of 91 months, being approximately 7 ½ years. The only documentary evidence before the Tribunal pertaining to the Applicant’s employment history in Malaysia was the employer reference letter dated 18 November 2016 from his last employer, Turkish Kebab House and its accompanying payslips for his final two months of employment.

9. During the Hearing the Applicant gave evidence of his efforts to obtain documentary evidence from his various employers in Malaysia. He explained that one employer, the Seaview, had closed down after its principal died. He also explained that in the restaurant trade employers were not generally helpful to their previous employees when it came to providing documentary evidence of their employment or even providing work references. The Applicant said this problem was made more difficult when dealing with previous employers in other countries. However the Applicant was willing to continue his efforts to obtain further documentary evidence from Malaysia should the Tribunal direct him to do so.

10. At the Hearing the Applicant:

    a.    confirmed the accuracy of his employment history in Malaysia as described in the written submission.

    b.    advised that he first arrived in Australia on 11 February 2015 as a secondary Applicant accompanying his girlfriend at that time.

    c.    said that immediately upon his arrival in Melbourne he began looking for work as a cook, and within a few days of his arrival had secured part-time work as a cook at Leyalina restaurant, after initially agreeing to do volunteer work there as he was keen to learn more about Turkish and Middle Eastern cuisine.

    d.    confirmed that both in his employment in Malaysia and at Leyalina restaurant he had always been employed as a cook, never in a more junior role.

    e.    confirmed that as per the written submission he had worked as a part-time cook at Leyalina from February 2015 to 1 January 2017, after which he converted to being a full-time cook at the restaurant and has continued in that role until the present, being a period of some 10 months.

    f.   explained that he is one of Leyalina’s two cooks and there are five other kitchen staff. His work at the restaurant is typical of a cook’s duties and include, checking all foodstuffs for quality and freshness; checking that ovens and other kitchen equipment are in working order and can operate at correct temperatures; preparing and cooking food; ensuring adequate supply of foodstuffs, particularly over the busy weekend period; training and supervising other kitchen staff; planning the menu and ensuring the quality of meals prepared and overall kitchen service.

    g.    described Leyalina restaurant as a mid-size restaurant having two levels, seating approximately 120  people, meaning that approximately 400 people can be served over the course of the busy weekend nights.

    h.    was questioned with regard to his vocational studies completed in Australia. He explained that he had selected All Australian Training Pty Ltd as the training provider simply through an online search; whilst travelling to Sydney with friends on a personnel trip, he completed his registration for the certificate courses at the provider’s main Sydney office.

    i.   explained that the many Recognition Of Prior Learning (RPL) credits that he was granted towards both Certificate III and Certificate IV in Commercial Cookery were awarded on the basis of the provider conducting several visits to Leyalina restaurant to observe the Applicant’s in the workplace and to interview the restaurant’s owners regarding the Applicant’s skill and experience as a cook.

11. The Tribunal found the Applicant to be a credible witness and consequently was prepared to accept on the evidence before it that the Applicant had worked as a cook in Malaysia for a minimum of 3 years, even if it was not possible, given the lack of documentary evidence in his submission, to be satisfied as to the exact number of years that the Applicant spent employed as a cook in Malaysia.

12. The Tribunal was also prepared to accept the Applicant’s explanation with regard to the RPL credits he was awarded towards his Certificates III and IV in Commercial Cookery.

13. The Tribunal then called in the Applicant’s witness, Mr Nader Tawfer, his employer at Leyalina restaurant. Mr Tawfer’s evidence confirmed that:

    a.    the Applicant worked at the restaurant as a part-time cook from February 2015 to 1 January 2017, after which he became a full-time cook. The Applicant has continued working at the restaurant in a full-time capacity up to the present time. Accordingly he was happy to provide copies of the Applicant’s payslips from May 2017 up to the present.

    b.    the Applicant joined Leyalina restaurant only a few weeks after it had opened and became apparent very quickly that the Applicant’s culinary skills and experience with the restaurant’s Middle Eastern cuisine was a considerable asset to the restaurant.

    c.    despite being located in Carlton, an area of Melbourne with a high concentration of restaurants and other eateries, Leyalina has managed to gain a loyal customer base and enjoy steady business growth since its opening. He provided a Sales Chart to the Tribunal as evidence of this.

    d.    in his view Leyalina’s business growth in such a competitive industry and location was in no small part due to the Applicant’s skills and experience as a cook specialising in Middle Eastern cuisine. He added that he had previously had a career in IT so opening Leyalina restaurant was a risky career change for him and his wife and the Applicant’s cooking skills and experience and his loyalty to the restaurant have been integral to its business success.

    e.    although the Applicant is employed as a cook, his contribution and value to the restaurant is closer to that of a Chef and business partner.

    f.   The Applicant was the subject of an approved nomination by the business owners of Leyalina restaurant, which nomination has now ceased, however the sponsor intends to make a fresh nomination application for the Applicant depending upon the Tribunal’s decision in this case.

14. The Tribunal found Mr Tawfer to be a credible witness and consequently was prepared to accept his evidence regarding the value of the Applicant’s contribution to the restaurant and the business owners’ intention to make a fresh nomination application for the Applicant depending upon the outcome of this Hearing.

15. The Tribunal then permitted the Applicant’s representative to make any further submissions. He confirmed that:

    a.    the Applicant had been nominated by the owners of Leyalina restaurant for the occupation of “cook” which had been approved on 14 September 2016. In accordance with the terms of that nomination, it ceased 12 months from that date. However he confirmed that the business owners of Leyalina restaurant intend to make a fresh nomination application for the Applicant depending upon the outcome of this Hearing.

    b.    it would be possible to provide evidence of the Applicant’s continuing full-time employment at Leyalina restaurant by way of payslips from May 2017 to the present. He agreed to provide this evidence within 7 days of the Hearing.

16. From 1 July 2017, the nominated occupation of cook is specified in an instrument in writing IMMI 17/060 and is listed in Part 2, Section 7 of that instrument in the Short-Term Skilled Occupation List.

17. Alongside that occupation in Section 7 under  the column headed Inapplicability Conditions reference is made to items numbered 7 and 8, which are listed under the heading “Positions for which occupation is inapplicable”.

18. The two items refer to positions involved in mass production in a factory setting and to positions in a “limited service” restaurant. The term “limited service restaurant” is defined in paragraph 4 of Part 1of the Instrument to include:

    a.    a fast food or takeaway food service:

    b.    a fast casual restaurant;

    c.    a drinking establishment that offers only a limited food service:

    d.    a limited service Café, including a coffee shop or mall Café;

    e.    a limited service pizza restaurant.

19. The Tribunal does not believe Leyalina to fall within the definition of a “limited service restaurant”, however it is not required to make a determination on this and therefore makes no finding on this point.

20. Having considered the Applicant’s evidence and noting that the Applicant has been awarded both an AQF Certificate III and Certificate IV in Commercial Cookery from All Australian Training Pty Ltd, the Tribunal is satisfied that the Recognition of Prior Learning exemptions awarded to the Applicant were done so on the basis of credible practical assessment by the education provider of the Applicant’s skills and experience, that were conducted at his workplace.

21. Based on the evidence before it the Tribunal makes a finding of fact  that the Applicant:

    a.     had worked as a cook in Malaysia for a minimum of 3 years; and

    b.    has worked as a cook at Leyalina restaurant approximately 2 years in a part-time capacity and 10 months in a full-time role.

22. On balance, having heard the oral evidence of the Applicant and his witness and having given further consideration to the post-Hearing evidence of the Applicant’s payslips from Leyalina restaurant confirming his ongoing full-time employment, the Tribunal is satisfied that any concerns it may have had have been outweighed by the evidence before it of the skills and experience and overseas work experience of the Applicant.

23. The Tribunal is satisfied that the applicant has the skills, qualifications and employment background that the Tribunal considers necessary to perform the tasks of the nominated occupation of Cook, and therefore he satisfies cl.457.223(4)(da).

24. 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

1. The Tribunal remits the application for 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.

Stephen Conwell
Member