LABRA RODILLO (Migration)

[2018] AATA 2603

LABRA RODILLO (Migration) [2018] AATA 2603 (20 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Javier Leonardo LABRA RODILLO

CASE NUMBER:  1604859

DIBP REFERENCE(S):  BCC2015/1863936

MEMBER:Denise Connolly

DATE:20 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 20 July 2018 at 4:35pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Marketing Specialist - Whether the applicant has the relevant skills necessary to perform the tasks of the occupation – No bachelor degree or higher qualification – Whether the applicant has at least 5 years of relevant experience – Work experience not closely related to duties of the nominated occupation – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration and Border Protection 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 29 June 2015. 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 the applicant. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream, to work in the nominated position of Marketing Specialist (ANZSCO 225113). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visa on the basis the applicant did not meet cl.187.234 of Schedule 2 to the Regulations.

6. The applicant appeared before the Tribunal on 16 July 2018 to give evidence and present arguments.

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

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant lodged his visa application on the basis of a nomination to work in the position Marketing Specialist. The delegate claims that at the time of application no documents were submitted by the applicant. The delegate notes that on 27 November 2015 the applicant’s registered migration agent was advised by telephone and requested to provide documents within seven days. The delegate notes that on 7 December 2015 an email was sent to the migration agent requesting all the required documents. The applicant was given 28 days to provide the documents. The delegate notes that on 14 January 2016 a Departmental officer rang the migration agent to follow up on the requested information and the migration agent initially claimed that he did not receive any request from the Department, however he looked in his mailbox and located the relevant email. He was apologetic and assured the officer that the information would be sent. However the delegate records that as at the time of her decision no documents had been provided. (As indicated below the representative disputes this).

10. Having regard to the requirements of cl.187.234 the delegate referred to the legislative instrument IMMI 12/060 and noted the applicant was not a person specified for the purposes of cl.187.234(a) (an exempt person). She noted his occupation was not specified in IMMI 12/096 for the purposes of cl.187.234(b)(i). She found that as neither cl.187.234(a) or (b) applied, the applicant needed to demonstrate that he held the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. She noted that according to ANZSCO a Marketing Specialist is a skill level 1 occupation which requires a bachelor degree or a higher qualification, or at least five years’ relevant work experience to substitute for the formal qualification. She found that the applicant had not provided evidence that he has the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation. She was therefore not satisfied the applicant met cl.187.234.

11. The Tribunal notes that after the delegate made her decision the migration agent wrote to the Department stating that he had uploaded the relevant documentation on 5 February 2016. His response included various documents, copies of which are now on the Department’s file. Included in those documents is a statement of academic results from Cambridge International College Australia for a Diploma of Hospitality, completed in 2013. The applicant also provided a letter from the Director of Restaurant Tesoros de Chile, claiming that the applicant had worked as a wine sales promotions officer from December 2003 to December 2009 at the restaurant and claiming that his duties included:

    a.analysing market information to identify new opportunities

    b.developing marketing strategies to suit the client’s needs

    c.advising and developing campaigns to promote client’s wines

    d.designing and producing promotional material

    e.conducting promotion campaigns, including:

    i.contacting hotels, restaurants and caterers to tailor promotions according to their needs

    ii.training staff in promoting wines to customers and food-wine matching

    iii.working with wine producers to market their wines to the public

    iv.preparing, cooking and demonstrating different ways to match food-wine

    f.conducting follow-up investigations

    g.analysing the efficiency of wine sales promotions and recommending any changes based on the results.

12. The applicant’s representative provided a written submission after making the review application in which he stated he had uploaded the required documents on 5 February 2016 in response to the Department’s request. He provided copies of the same documents provided to the Department including the letter from Restaurant Tesoros de Chile.

13. At the hearing the Tribunal discussed with the applicant the requirements of cl.187.234 and the applicant’s qualifications and past employment experience. The following is a summary of the oral evidence the applicant provided at the hearing.

14. The applicant confirmed that he did not have a skills assessment because he did not think he needed to get one. He confirmed that his relevant qualification is Diploma of Hospitality completed in Australia in 2013.

15. The Tribunal asked the applicant about his employment experience with Restaurant Tesoros de Chile. The applicant indicated that it is his family’s business. He started working there as a chef in about 2008.  He has a qualification attained in Chile, a Diploma of Cooking Arts. He had been cooking in Chile for about 15 years before he decided to travel to New Zealand and Australia to feel the experience of living overseas. He came to Australia to study. In New Zealand he worked in restaurants and cafes cooking. In Australia he has worked as a cook and in wine sales. He has been sponsored by Wines of Chile and Argentina. He indicated that when he made his student visa application he probably described his employment in Chile as a chef, not as a wine sales promotions officer.

16. The Tribunal asked the applicant if he had been the sommelier at the family restaurant. He did not do this work because he was not qualified. His work experience relevant to the occupation was his involvement in organising wine events promoting regional wines. He worked at the restaurant both in cooking and in wine promotion. The Tribunal asked him to expand on his experience in wine promotion. He said the restaurant is based in a wine region of Chile. It has a yearly festival, Fiesta la vinos, which goes for a few days. He was involved in the preparation for the festival for 3 years, for a few months each year. He was responsible for contacting wineries and undertaking office work. He was also involved in setting up for the festival such as moving things around on the site, serving wine and food matching. He was still cooking for the restaurant while he was involved in the organisation for the festival. However he did not cook for the 3 days of the festival.

17. The applicant explained that the family business is both a restaurant and a reception centre with a seating capacity of about 400. It has about 6 people working in the kitchen. His role was similar to the sous chef. He is currently working as a chef for 3 or 4 days a week.

18. The Tribunal raised with the applicant that his written reference from the Director of Restaurant Tesoros de Chile claims that the applicant had worked as a wine sales promotions officer from December 2003 to December 2009. The applicant acknowledged that this is incorrect. He indicated that he was a kitchen-hand at the restaurant before, and while, he completed his cooking course.  He apologised for the reference as he was not employed as a wine promotions officer as stated.

19. The representative submitted that the applicant was not required to obtain a skills assessment. His sponsor has nominated the applicant to work as a marketing specialist as, being able to cook has advantages in wine and food matching, and selling wine to restaurants.

    Skills and qualifications

20. 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): cl.187.234(a) 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): cl.187.234(b) 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: cl.187.234(c).

21. For this criterion, the relevant classes of exempt persons have been specified in IMMI 12/060. For visa applications made on or after 1 July 2014, the date of the skills 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.

22. The Tribunal has considered IMMI 12/060 and whether the applicant is an exempt person for the purposes of cl.187.234(a). There is no evidence to suggest the nominated earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate. There is no evidence to suggest he has been in Australia as the holder of a Subclass 444 or 461 visa. Therefore the applicant is not a person specified for the purposes of cl.187.234(a). The Tribunal also notes the applicant’s occupation is not specified in IMMI 12/096 for the purposes of cl.187.234(b)(i). Therefore cl.187.234(b) is not met.

23. As the applicant does not meet either cl.187.234(a) or (b) the applicant needs to demonstrate that he meets cl.187.234(c), that is, that at the time of application he had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.

24. Having regard to the ANZSCO description for the occupation the Tribunal notes a Marketing Specialist has a level of skill commensurate with a bachelor degree or higher qualification, but that at least 5 years of relevant experience may substitute for the formal qualification.

25. The Tribunal notes the applicant has Diploma qualifications in hospitality and cooking. While these qualifications may have some relevance to marketing wine, the Tribunal is not satisfied these qualifications alone are sufficient to demonstrate that the applicant has the qualifications necessary to perform the tasks of the occupation.

26. The Tribunal has considered the applicant’s employment experience. The applicant sought to rely on his employment experience with Restaurant Tesoros de Chile. In a written reference by the Director of that business it is suggested that the applicant was employed for 6 years as a wine sales promotions officer, undertaking duties such as analysing market information to identify new opportunities, developing marketing strategies, advising and developing campaigns to promote wines, designing and producing promotional material, conducting promotion campaigns and analysing the efficiency of wine sales promotions. On the basis of the applicant’s oral evidence at the hearing the Tribunal is satisfied that this was not the case. The applicant told the Tribunal that he worked in the family business as a kitchen-hand until he became a chef in about 2008. He apologised for the misleading reference. He also told the Tribunal that for 3 years he was involved in the organisation of a 3 day wine festival, undertaking duties such as contacting wineries, undertaking office work, setting up for the festival such as moving things around on the site, serving wine and food matching. The Tribunal notes he was still cooking for the restaurant while he was involved in the organisation for the festival but that he did not cook for the 3 days of the festival. The Tribunal is satisfied the applicant’s oral evidence regarding his employment experience is reliable.

27. Having regard to the applicant’s oral evidence about his employment experience at Restaurant Tesoros de Chile, the Tribunal is of the view the applicant was essentially a chef in the family business from about 2008 until 2009 and prior to that he was a kitchen-hand. It accepts he was involved, on a part-time basis, in the preparation of a wine festival for a total of about 9 months. It accepts that he had contact with wineries and promoted wines during the festival. The Tribunal is not satisfied this part-time experience over a total period of about 9 months is sufficient to say that he had at least 5 years’ relevant experience. Having regard to the duties of a marketing specialist as described in ANZSCO the Tribunal is not satisfied that during his employment with Restaurant Tesoros de Chile the applicant, to any great extent, identified market opportunities, advised on the development, coordination and implementation of plans for pricing, and promoted the organisation's goods and services. The Tribunal has also considered the applicant’s extensive experience as a chef. It accepts that the sponsor values that experience because it is advantageous when selling wine to restaurants. However it is not satisfied his extensive experience as a chef or cook provides him with the relevant experience to undertake the duties of a marketing specialist. It has considered all of the written material provided, in particular the written reference from the Director of Restaurant Tesoros de Chile setting out a range of duties similar in some respects to those of a marketing professional. However on the basis of the applicant’s oral evidence at the hearing the assertions made in that written reference are not correct.  The Tribunal is not satisfied that the applicant’s employment experience as described at the hearing demonstrates that he has at least five years of relevant experience to substitute for the formal qualification.

28. The Tribunal has also considered the applicant’s qualifications and employment experience cumulatively.  However it is not satisfied the applicant’s diploma qualifications in hospitality and cooking, along with all of his employment experience as described at the hearing, demonstrate that the applicant had the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation.  

29. Overall the Tribunal is not satisfied the applicant had, at the time of application, the qualifications listed in ANZSCO as being necessary to perform the tasks of the occupation Marketing Specialist. Accordingly the Tribunal is not satisfied the applicant meets cl.187.234(c).

30. Therefore, cl.187.234 is not met.

31. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Denise Connolly
    Member