Qureshi (Migration)

[2017] AATA 1883

Qureshi (Migration) [2017] AATA 1883 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeeshan Ahsan Qureshi

CASE NUMBER:  1615544

DIBP REFERENCE(S):  BCC2016/1702680

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  11 October 2017

DATE OF WRITTEN STATEMENT:         11 October 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 11 October 2017 at 3:25pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background necessary to perform the tasks of the nominated occupation – Cook – Applicant has substantial and relevant work experience

LEGISLATION

Migration Act 1958, ss 65, 359(2)

Migration Regulation 1994, Schedule 2, cl 457.223

CASES

Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116

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 visa applicant applied for the visa on 11 May 2016.

3. 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.

4. The delegate refused to grant the visa on 6 September 2016 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Cook.

5. The applicant applied to the tribunal on 23 September 2016 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.

6. On 7 April 2017, the tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information in writing that demonstrate that he meets the requirements of cl.457.223(4) (da).

7. On 12 April 2017, the applicants’ representative submitted:

   ·Copy PAYG payment summary for the nominee for 2014/15 and 2015/16 financial years;

   ·Copy pay slip as evidence of payment of wages during the period from 3 April 2017 to 9 April 2017;

   ·Nominee’s Resume;

   ·Copy Certificate III and Certificate IV in Commercial Cookery together with the statement of results awarded to the applicant by All Australian Training Pty Ltd completed through recognition of prior learning (RPL);

   ·Letter from Mr Bonello, the Executive Chef of the sponsoring employer dated 11 April 2017 as evidence of applicant’s employment at Zagame Corporation and attesting to the applicant’s skills;

   ·Letter from Ms Munro, the payroll administrator of the sponsoring employer dated 12 April 2017 as evidence of applicant’s employment at Zagame Corporation and attesting to the applicant’s skills; and

   ·Copy work reference for the applicant from Pakistan dated 6 April 2016.

8. On 16 June 2017, the applicants’ representative submitted a copy of the DIBP acknowledgment letter as evidence that the sponsoring employer applied for new nomination application, nominating the applicant for a position of a Cook on the same day.

9. On 19 June 2017, the applicants’ representative submitted:

   ·Copy Restaurant Menu;

   ·Bundle of photographs depicting the restaurant where the nominee works; and

   ·Letter from Ms Booth, the Chief Operating Officer of the sponsoring employer dated 14 June 2017, as evidence that the sponsoring business does not operate a limited services restaurant.

10. On 21 June 2017, the tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 11 October 2017.

11. On 5 October 2017, the tribunal officer contacted the department inquiring about the progress of related nomination application that was lodged with the department on 16 June 2017. The department responded o 9 October 2017, advising that processing of the nomination currently takes between 4-9 months.

12. On 9 October 2017, the applicant’s representative provided submissions outlining the applicant’s work and study history in Australia and Pakistan and bundle of photographs depicting the applicant’s work in a kitchen.

13. The applicant appeared before the tribunal on 11 October 2017 to give evidence and present arguments. The tribunal also received oral evidence from Mr Bonello, the Executive Chef of the sponsoring employer. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

14. The applicant gave evidence that, after completing the equivalent of year 12 in Pakistan, he enrolled into and completed a Diploma in Management course. He stated that he worked at Spin Ghar Restaurant in Pakistan from May to December 20111. He has four siblings. He claims that his father is successful businessman from Pakistan.

15. In his evidence the applicant stated that he first arrived in Australia in May 2014 as a holder of a student visa. After completing an English language course (duration of 6 months) and Diploma in Management (duration of 6 months); he enrolled into a bachelor of Business course. He gave evidence that he was pressured by his parents to do a Bachelor Degree course as all of his siblings have tertiary education. He did not like the course and has failed all subjects. I noted that the department could have cancelled his student visa.

16. He commenced his part time employment at Zagamis’ Reservoir Hotel (the restaurant) in September 2014. During the course of employment he worked in all kitchen areas (pizza section, entrée section and grill and fryer section). In late 2015, he finally told his father that he intend to pursue his career as a cook/chef. His father undertook to support him on his return to Pakistan by opening, as the applicant described, a ‘proper hotel’. In 2016, he completed Certificate III and Certificate IV in Commercial Cookery through recognition of prior learning.

17. Mr Bonello, the Executive Chef of the sponsoring employer gave evidence that he observed the applicant’s performance in the kitchen on many occasions. The witness attested to the applicant’s skills and ability to perform the tasks of a cook. He stated that the applicant has proven his ability to plan and organise the preparation and cooking of food in a busy restaurant that can seat up to 500 customers. He expressed his satisfaction with the applicant’s work ethic and commitment to his work.

18. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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

20. 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.

21. The tribunal accepts that the determination of the application requires more than a narrow matching process between an applicant’s tasks and an ANZSCO occupational definition. Instead, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.

22. The tribunal has had careful regard to the tasks and duties and the indicative skill level for the occupation of a Cook as described in the ANZSCO, and the tribunal regards these ANZSCO indications as important considerations. The entry requirement for the nominated occupation of a Cook is AQF Certificate III including at least two years of on the job training or AQF Certificate IV (ANZSCO Skill Level 3).

23. With his review application, the applicant presented to the tribunal evidence of completing a Certificate III and IV in Commercial Cookery awarded through the recognition of prior learning process (RPL).

24. Based on the evidence before me, including the applicant’s oral evidence and transcript of results listing the subject completed by the applicant, I am satisfied that the applicant has the necessary qualifications to perform the nominated role. I am satisfied that the applicant has the requisite level of education commensurate with the nominated position.

25. In addition, I am satisfied that the applicant developed the skills necessary to perform the role of a Cook through his employment history. Based on the work reference letters submitted by the applicant and in particular testimony of Mr Bonello, the Executive Chef of the sponsoring business, I am satisfied that the applicant has substantial and relevant work experience.

26. I considered the reference letters from his current employer dated 6 May 2016 (submitted to the department); letter from Mr Bonello, the Executive Chef of the sponsoring employer dated 11 April 2017, letter from Ms Munro dated 12 April 2017 and letter from Ms Booth dated 14 June 2017.

27. Based on the evidence before it, the tribunal is satisfied that the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus finds that he satisfies cl.457.223(4)(da) at the time of the tribunal’s decision.

28. 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

29. 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.

    Antonio Dronjic
    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.