Le (Migration)

[2017] AATA 660

Le (Migration) [2017] AATA 660 (28 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hong Loc Le

CASE NUMBER:  1517385

DIBP REFERENCE(S):  BCC2015/1503681

MEMBER:Denise Connolly

DATE:28 April 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 28 April 2017 at 5:40pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Cafe or Restaurant Manager – Vocational Education and Training Assessment Services – Unsuccessful skills assessment

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 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 applicant applied for the visa on 26 May 2015. 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 27 November 2015 on the basis that cl.457.223(4)(e) was not met because the applicant had not provided evidence that his skills had been assessed as suitable to perform the occupation Café or Restaurant Manager, by the relevant assessing authority, VETASSESS, as required by the Minister.

4. The applicant appeared before the Tribunal on 9 February 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Eddie Patel, the applicant’s employer.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.457.223(4)(e) which provides that, if required by the Minister, the applicant must demonstrate that he 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. The delegate specified that the applicant was to provide a VETASSESS skills assessment for the nominated occupation.

2. The applicant applied for the visa on the basis that he was nominated by his sponsor 6Senses Coffee Pty Ltd for the position of Cafe or Restaurant Manager.

3. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant obtained a Diploma of Management from Central College Online while he held a Subclass 572 student visa.  He provided a reference letter from Boost Juice Greenwood which stated the applicant worked as a part-time assistant manager from 1 July 2014 to 15 June 2015.

4. In June 2014 the Minister required the applicant to demonstrate he has the necessary skills to perform the occupation by providing a suitable skills assessment from VETASSESS. In September 2015 the applicant provided evidence of a VETASSESS application. The delegate notes however that the applicant did not provide the skills assessment by the time the primary decision was made on 27 November 2015.

5. Prior to the hearing the applicant’s representative provided written submissions describing the applicant’s duties as an Assistant Manager for Boost Juice. He also provided the transcript for his Diploma of Management undertaken at Central College Online. The representative stated that from about August 2015 until the time of the submission the applicant had been employed as the Cafe Manager for 6Senses Coffee Pty Ltd, his sponsor. The representative set out the duties for the position. It is asserted that the applicant worked for a café/restaurant in Vietnam from June 2006 to December 2008 and undertook a supervisory role. The representative argued that the delegate was incorrect in refusing to grant the visa because the applicant did not have a successful VETASSESS skills assessment. It is submitted that the applicant has demonstrated that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. It is submitted that the applicant’s overall skills, education and work experience should be considered in their entirety and not limited to the single requirement of a VETASSESS outcome. Despite not providing evidence of a successful skills assessment, the representative asserted that the applicant clearly satisfies the requirements of cl.457.223(4)(e). The representative provided documentation relating to the applicant’s qualifications and previous employment background. He also provided a letter from the applicant’s current sponsor claiming that the applicant is an invaluable member of his staff and that the business has grown overall since his employment.

6. The representative also provided copies of other Tribunal decisions, differently constituted, where the Tribunal has not required an applicant to demonstrate their skills by the provision of a skills assessment.

7. At the hearing the Tribunal discussed with the applicant the requirements cl.457.223(4)(e). It explained to the applicant that it had formed the preliminary view that the manner specified by the delegate, that the applicant provide a successful skills assessment from VETASSESS, is a reasonable request. It noted that while the representative’s written submissions relate to the applicant meeting cl.457.223(4)(da), the Tribunal is still required to consider whether cl.457.223(4)(e) is met, given that this was the paragraph on which the delegate refused the visa application.

8. The Tribunal asked the applicant if he has evidence of a successful skills assessment in the nominated occupation from VETASSESS. He indicated he had applied for a skills assessment in August 2016 but the outcome was unsuccessful. He indicated that he had a completed another Diploma in Hospitality since then but he has not sought a skills assessment from VETASSESS since that time. The Tribunal asked why he had not applied for a skills assessment since August 2016, if he completed another course. The applicant indicated he did not have time. He believes he has the experience to perform the tasks of the nominated occupation and he has been doing good things for the sponsor. He confirmed that he did not have evidence of a positive skills assessment in the nominated occupation from VETASSESS.

9. The Tribunal then took evidence from the applicant’s sponsor who indicated his support for the applicant and his contribution to the business.

10. The applicant’s representative indicated that the applicant would make another VETASSESS skills assessment application. The Tribunal expressed some reluctance to provide the applicant further time given it has been nearly 2 years since the visa application. However after the hearing the Tribunal wrote to the applicant advising it agreed to wait for the applicant to provide evidence that he had lodged an application with VETASSESS for a skills assessment in the nominated occupation. On 10 February 2017 the applicant provided to the Tribunal a copy of a VETASSESS skills recognition application. The Tribunal then agreed to wait until 10 March 2017 for information demonstrating that the applicant has a successful skills assessment for the nominated occupation. It explained that it would then proceed to make its decision any time after that date on the evidence before it. On 9 March 2017 the applicant’s representative wrote to the Tribunal advising that the applicant was still waiting for the skills assessment to be finalised. The Tribunal agreed to wait until 13 April 2017 for the applicant to provide further evidence of a suitable skills assessment from VETASSESS.

11. On 29 March 2017 the applicant’s representative wrote to the Tribunal advising that on 3 March 2017 the applicant received a negative outcome from VETASSESS which was based on the applicant’s employment. VETASSESS was of the opinion that the applicant’s place of employment was that of a fast food or takeaway food service and not a café. The applicant lodged an application for reassessment on 31 March 2017. On 5 April 2017 the applicant received another negative outcome from VETASSESS, on the same basis. VETASSESS on review again formed the view that the applicant’s place of employment was considered a fast food or takeaway food service and not that of a café. The representative submits that the applicant is employed by a café which requires a café manager. It is submitted that VETASSESS failed to give a proper assessment or due weight to the evidence provided in relation to the applicant’s place of employment. The representative requests that the Tribunal exercise its discretion to determine that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation without the need for a VETASSESS skills assessment. The representative refers to the approval of a nomination of the position by the Department on 21 May 2015 and provides a copy of the Department’s notification of approval of the nomination. The representative provides a description of the business, its menu and its service. It is asserted that the applicant has more than 5 years’ relevant experience in a management role within the hospitality industry and that he has been responsible for various duties as described for the nominated occupation in ANZSCO.

12. The representative provided to the Tribunal a copy of VETASSESS’ skills assessment and correspondence dated 3 March 2017. VETASSESS sets out the required skill level that must be demonstrated in order for the applicant to achieve a positive skills assessment outcome. The representative explains that VETASSESS looks at both the qualifications and employment. VETASSESS advised that the applicant’s Bachelor of Design awarded in 2014 is not highly relevant to the nominated occupation. It is recorded that the applicant’s Diploma of Management awarded in 2015 is assessed as comparable to the education level and is at the required level, as is the applicant’s Diploma of Hospitality Management awarded in 2017. However VETASSESS advised that the applicant’s employment at Boost Juice does not meet the minimum requirements for the nominated occupation, as the tasks undertaken are not highly relevant to the ANZSCO tasks for the occupation. VETASSESS formed the same view in relation to the applicant’s employment at Hudson’s Coffee and 6Senses Coffee advising that the tasks undertaken in that employment are not highly relevant to the ANZSCO tasks for the nominated occupation. VETASSESS concluded that the employment background did not meet the minimum requirements for the occupation, as the businesses were of a type that do not fit with the profile for Café or Restaurant Manager, as the occupation excludes positions in fast food or takeaway food services. Accordingly the skills assessment outcome was negative.

13. The representative also provided a copy of the reassessment undertaken by VETASSESS, dated 5 April 2017, which reaches the same conclusion and finds that the applicant does not meet the requirements for the nominated occupation.

14. The representative subsequently provided a copy of the sponsor’s approval as a Temporary Business Entry Standard Business Sponsor dated 20 April 2017. He also provided a copy of a Tribunal decision differently constituted, where the member decided the applicant was not required to provide a skills assessment for the occupation Program or Project Administrator, having considered Departmental policy.

Assessment of the evidence

1. The Tribunal has considered the representative’s request that it not require the applicant to demonstrate that he has the skills that are necessary to perform the occupation in the manner specified by the delegate, by the provision of a skills assessment. It has considered the written submissions on this issue, in particular the assertions that applicant has demonstrated that he has the skills, qualifications and employment background considered necessary to perform the tasks of the nominated occupation.  In making these submissions the representative has referred to the applicant’s employment with Boost Juice and Hudson’s Coffee, the employment which VETASSESS considers does not meet the minimum requirement for the occupation.

2. The Tribunal has considered the AAT decisions by differently constituted members where the Tribunal has not required the applicants in those cases to provide skills assessments. However the Tribunal is not bound by those decisions which in any case differ on their facts. It has also taken into account the sponsor’s nomination approval for the position and the recent approval as a Temporary Business Entry Standard Business Sponsor.  However it is of the view the requirement that the applicant demonstrate that he has the skills that are necessary to perform the occupation by providing a VETASSESS skills assessment for the nominated occupation is reasonable.  It is of the view that VETASSESS as a relevant assessing authority for the nominated occupation is well positioned to undertake an assessment of the applicant’s qualifications and employment background. Accordingly the Tribunal finds that the applicant is required to demonstrate that he has the skills that are necessary to perform the occupation of Café or Restaurant Manager by providing a skills assessment from VETASSESS.

3. Based on the information provided to the Tribunal by the representative the applicant does not have suitable skills assessment for the nominated occupation from VETASSESS. The skills assessment outcome was negative, both in the first instance and on review. Accordingly the applicant does not satisfy cl.457.223(4)(e).

4. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Denise Connolly
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.