Pise (Migration)

Pise (Migration) [2017] AATA 1573 (23 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mayur Gajanan Pise
CASE NUMBER:  1615757
DIBP REFERENCE(S):  BCC2015/3516245
MEMBER:Catherine Carney-Orsborn
DATE:23 August 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 23 August 2017 at 1:09pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills assessment – Skills, experience and qualifications necessary for the nominated occupation – Cook – Insufficient evidence provided that applicant has appropriate skills and employment background – Skills assessment not provided
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicant applied for the visa on 25 November 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.
The delegate refused to grant the visa on 20 September 2016 on the basis that cl.457.223(4)(e) was not met because the applicant did not provided the requested skills assessment.
The applicant appeared before the Tribunal on 22 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Indian) and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e).
Skills, qualification and employment background of the applicant
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 351411.
As set out in the Department’s decision records, which was attached to the application for review, the delegate of the Department requested the applicant on 15 January 2016 to provide a completed TRA 457 Skills Assessment or evidence of the commencement of a TRA 457 Skills Assessment. On 31 March 2016 a further request for a TRA Skills Assessment was made. No TRA Skills Assessment was provided.
The Tribunal has the Department file and Tribunal file before it. The Tribunal conducted a hearing on 22 August 2017. The applicant gave oral evidence.
At the hearing the applicant provided copies of a Certificate III in Hospitality from Barrington Training Services and a Certificate IV in Commercial Cookery from Spencer College. A letter from Barrington College dated 3 February 2016 stated that the applicant had completed the theory for his traineeship. A letter from Spencer College indicated that he had commenced at the College on 1 May 2016 and completed the course on 13 Mary 2016.
On the Department file were the above certificates as well as certificates from two Hotels in India which state he worked as a ‘Kitchen Helper” from October 2010 to 1 April 2011 and 15 “July 2011 to 15 January 2011”. There was a certificate “Food Service Certification” from “Six flags over Texas”. He provided other evidence of his studies in India and abroad including a certificate which states he has a Bachelor of Hotel Management and Catering Technology from Nagpur University.
The applicant’s agent provided submissions which are on the Department file and have been considered by the Tribunal.
The Tribunal went through the issue before it at the hearing. The Tribunal explained that the delegate had requested a TRA skills assessment and he had not provided one. The Tribunal stated that it noted the submissions from his agent which referenced the ANZSCO reference skill set for Cook and submitted he had the necessary skill level.
The applicant stated that he had sufficient evidence to satisfy the skill level as set out in ANZSCO. The Tribunal indicated to the applicant that the Tribunal may use ANZSCO only as a guide.
The Tribunal asked the applicant to go through his immigration and work history in Australia.
He stated he came to Australia in 2014 on a sub class visa 402. On that visa he was only allowed to work for 20 hours. He then applied for a sub class 457 visa in 2015. These visas were subject to conditions including work restrictions. He stated that the work restriction was lifted on his bridging visa in 2016. He said that since that time he has been working full-time for the sponsor.
He claims he is currently working for his sponsor at two casual eateries as a Cook.
The Tribunal asked why he has not applied for a TRA skills assessment. He replied that he did not have the required work experience of four years.
The Tribunal asked about his work history he claimed he has worked for four years. He claims that he worked in India and America. The Tribunal pointed out that the letters from India indicate he worked for a matter of months as a “kitchen helper”. He further stated he worked in America for four months. No independent evidence of his work in America was provided.
He referred to the two Certificates he has from Spencer College and Barrington College.
The Tribunal pointed out that both those certificates seem to have been awarded to him using Recognised Prior Learning and a very short study of theory. The Tribunal again asked him what the Recognised Prior Learning referred to. He stated he had worked in India, America and Australia. The Tribunal put to him that it appeared from the evidence he provided that he only worked for a short time as a “kitchen helper”.
The Tribunal asked if he wanted to put anything to the Tribunal from his current employer/sponsor. He indicated he did not. The Tribunal asked who his sponsor was. He replied Tom. He did not know his surname.
The applicant asserts he has the skills, qualifications and employment necessary to perform the tasks. The Tribunal has considered the information before it. The applicant has provided a copy of a Bachelor Degree from a provincial university in India in Hotel Management and Catering Technology. He provided a transcript of subjects studied. The subjects related to Hotel Management. There is some reference to production and management of food however there is no subject directly relevant to being a Cook.
He provided evidence of training in India. That training was as a “kitchen helper” for a short period. He claims he has worked in Australia since 2014 however as outlined by him at hearing for much of that time he was subjected to work conditions. Those conditions were lifted in March 2016 and he states he has worked as a Cook since that time.
He provided two Certificates from Colleges in Australia. The Certificate III was for Hospitality. There was no evidence of what subjects he studied and how closely they relate to the occupation of Cook. He provided letters from the Colleges that awarded the certificate those letters indicate a very short period of learning theory. The Certificate IV for Commercial Cookery had duration of 13 days. The Transcript showed the certificate IV relied very heavily on recognised prior learning. The evidence the applicant provided to the Tribunal of that prior learning was not convincing or persuasive.
Given the applicant’s vague evidence at hearing the Tribunal is not satisfied that he has worked as a Cook for a period of time that would provide him with the skills necessary. On the evidence before the Tribunal he has only worked full-time for just over a year. Prior to that he could not provide any persuasive or independent evidence as to what work he was undertaking in the kitchen. If he did work as a Cook it was only on a part-time basis.
He did not provide any evidence from his current employer and did not know the full name of his sponsor and employer.
On the evidence before it the Tribunal is not satisfied that he has the work experience he claims to possess.
The Department required a TRA skills assessment. The Tribunal would still require a TRA skills assessment. At hearing the applicant stated he was unable to provide one.
On the evidence before it the Tribunal finds the applicant does not satisfy the requirements of cl.457.223(4)(da) or cl.457.223(4)(e).
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
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Catherine Carney-Orsborn
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.

[2017] AATA 1573

23 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal