MASSERA (Migration)

[2019] AATA 2053

MASSERA (Migration) [2019] AATA 2053 (3 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr SERGIO MASSERA

Ms LORENA FERNANDES PRADO RIBEIRO

CASE NUMBER:  1703792

DIBP REFERENCE(S):  BCC2016/404310

MEMBER:  Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 April 2019 at 11:55 am (QLD time)

DATE OF WRITTEN RECORD:                17 June 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal remits the decisions under review

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.

Statement made on 17 June 2019 at 1:20pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cook – necessary skills, qualifications and experience – Certificate IV in Commercial Cookery – tasks of nominated position – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 13 February 2017 to refuse to grant the visa applicants Temporary Business Entry (Class UC) Subclass 457 visas under the Migration Act 1958 (the Act).

2. At the hearing on 3 April 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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) Subclass 457 visa under s.65 of the Migration Act 1958. The visa Applicant applied for the visa on 27 January 2016.

4. 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. 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).

5. 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. The claims have been made in respect of the alternative streams in cl.457.223.

6. The delegate refused to grant the visas on 13 February 2017 on the basis that cl.457.223(4)(da) is not met, because the delegate did not consider the Applicant to have the necessary skills, qualifications and experience for the role in which he was nominated as a Cook - ANZSCO 351411.

7. The Applicants appeared before the Tribunal on 3 April 2019 to give evidence and present arguments. The Applicants were assisted in relation to the review by their Registered Migration Agent. The Tribunal also took oral evidence from the applicant’s employer, Mr Gianni Greghini, the managing director of the restaurant Gusto Da Gianni.

8. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

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

10. cl.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 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 - 351411.

11. The Tribunal notes that the delegate’s decision was made on 13 February 2017. The applicant has provided the Tribunal with a copy of his Certificate IV in Commercial Cookery, which was granted on 1 August 2017 and is contained on the Tribunal file at Folio 22. This indicates that the Applicant has the educational qualifications that would be required to work as a chef as the ANZSCO states that the minimum requirement of a Cook – 351411, is an

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AQF Certificate III, including at least two years of on the job training, or an AQF Certificate IV - ANZSCO skill level 3.

1. It is then the case that on the basis of the Applicant’s educational qualifications, which were obtained after the delegate made their decision, that the Applicant now meets this criterion. Even if the Applicant did not have a Certificate IV in Commercial Cookery that was recognised within the Australian Qualifications Framework, it is the case that he would meet the requisite period of experience working in the role.

2. The letter that was provided by the Managing Director of the restaurant at which the Applicant is employed indicates that his tasks include preparing cuisine for the restaurant, including selecting relevant food stuffs for preparing customer orders in relation to the menu, making amendments to the orders, as requested by customers, cooking using ovens, grills and other cooking equipment, applying appropriate seasonings to the food as it is prepared, apportioning and plating up the food, assisting with managing the operation of the kitchen, ensuring that foodstuffs and raw materials are ordered and received in a timely manner, limiting supervision of the kitchen and waiting staff, assisting with training of kitchen and waiting staff, and implementing occupational health and safety requirements.

3. The Tribunal accepts the evidence that has been given orally by both the Applicant and Mr Greghini, confirming the applicant’s workplace tasks. For these reasons the applicant satisfies the requirements of clause 457.223(4)(da).

4. Given these findings, 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

5. 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.

   Bridget Cullen
   Member

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