SEPULVEDA ARROYO (Migration)

SEPULVEDA ARROYO (Migration) [2017] AATA 313 (2 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Miguel Angel SEPULVEDA ARROYO
CASE NUMBER:  1510132
DIBP REFERENCE(S):  BCC2015/1409093
MEMBER:D. Dimitriadis
DATE:2 March 2017
PLACE OF DECISION:  Sydney
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 02 March 2017 at 4:13pm
CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Skills, qualifications and employment background – Cook – Recognition of prior learning – Employment background as cook

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223(4)(da)
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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 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 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 23 July 2015 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant has the skills, qualifications and employment background to perform the duties of the nominated occupation of Cook (ANZSCO 351411).
The applicant appeared before the Tribunal on 1 March 2017 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CLAIMS AND EVIDENCE
In the visa application, the applicant stated that his sponsoring employer (sponsor) is Calautti Enterprises Pty Ltd. In answer to questions about his educational qualifications, trading or professional qualifications, training and special skills, the applicant referred to his attached CV (curriculum vitae).
The applicant provided a number of documents to the Department of Immigration and Border Protection (the Department) including copies of the following:
·Diploma of Management issued by Academies Australasia Institute on 29 April 2015;
·Certificate III in Business issued by Academies Australasia Institute on 21 October 2014;
·IELTS test results;
·Employment offer dated 12 May 2015 from Cucina Espresso to the applicant of the position of Cook;
·CV of the applicant showing that he worked as a kitchen hand for Ecco Ristorante from November 2012 to August 2013 and as a Cook at Cucina Espresso from August 2013 to “current”.
On 26 May 2015 the Department wrote to the applicant and requested that he provide evidence of his qualifications, skills and work experience.
The Department received a number of documents from the applicant including a PAYG payment summary issued to him from the sponsor for the period 15 September 2013 to 30 June 2014, a reference from Ecco Ristorante stating that the applicant worked as a Cook from November 2012 to August 2013 and a reference from Cucina Espresso dated 29 May 2015 stating that the applicant has been employed as a Cook there for just over 12 months.
The delegate refused to grant the visa on the basis that cl.457.223(4)(da) was not met.
At the time of lodging the application for review with the Tribunal on 27 July 2015, the applicant provided copies of the delegate’s decision record, the sponsorship approval of the sponsor and the nomination approval on 24 June 2015 from the Department showing that the base rate of pay for the applicant will be $54,000.
On 14 November 2016 the Tribunal wrote to the applicant and invited him to provide information to demonstrate that he has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation. The Tribunal also invited the applicant to provide information that there is a current approved nomination of an occupation in relation to the applicant.
The Tribunal received a number of documents including copies of the following:
oNotice of assessment by the Australian Taxation Office (ATO) showing that the applicant’s taxable income for the year ended 30 June 2016 was $24,287;
oNotice of assessment by the ATO showing that the applicant’s taxable income for the year ended 30 June 2015 was $22,648;
oNotice of assessment by the ATO showing that the applicant’s taxable income for the year ended 30 June 2014 was $13,672;
oCV of the applicant with an amendment showing that the applicant worked as a kitchen hand and Cook for Ecco Ristorante;
oNomination approval dated 24 June 2015 by the Department;
oPAYG payment summaries for years ending 30 June 2014, 30 June 2015 and 30 June 2016.
The representative provided to the Tribunal a letter dated 25 November 2016 and stated that in addition to the applicant’s level of qualifications, which matches the nominated occupation in ANZSCO, the applicant has been employed as a Cook for more than three years.
The Tribunal hearing
The applicant provided to the Tribunal copies of three photographs which show him cooking, a Certificate IV in Commercial Cookery issued by Brisbane Business & Hospitality Training on 6 February 2017 and a transcript of results showing that the applicant had met the competency for the subjects through recognition of prior learning (RPL).
The applicant confirmed at the hearing that the Certificate IV in Commercial Cookery was achieved through RPL. He did not undertake any subjects at Brisbane Business & Hospitality Training (BBHT).
The applicant stated that he did not know that a new nomination has to be lodged. The Tribunal brought to the applicant's attention that a nomination lasts no longer than 12 months and the Tribunal referred him to its letter of 14 November 2016. The applicant stated that he does not know if a new nomination has been lodged. The applicant thought that his representative was going to put in a new nomination application. He has been with the sponsor as a Cook since August 2013, for over three years. He became full-time when his Student visa ceased around May 2015 which was about the time he applied for a Subclass 457 visa. The applicant stated that he has enough experience and qualifications to apply for this visa.
The applicant stated that he has been working as a Cook since the beginning of 2013. He started off as a kitchen hand with Ecco Ristorante, and in January or February 2013, he began working as a Cook part-time. When he gave the CV to his representative, he did not give the updated one and she forwarded the earlier one to the Department. He has provided an updated one to the Tribunal showing that he worked as a kitchen hand and a Cook with Ecco Ristorante.
The applicant stated that he has worked as a Cook for more than three years and it was sufficient to obtain a qualification through RPL. He provided information to BBHT including his updated CV, 25 photographs, two videos of him cooking, work references and information about the period he worked with Cucina Espresso. The applicant had to show BBHT that he had worked as a Cook for three years in order to obtain the qualification. He was not asked whether he was part-time or full-time. The applicant stated that he was not permitted to work full-time when he held a student visa except when the course sessions were not on.
Regarding the competency of ‘coach others in job skills’ as listed in transcript of results, the applicant stated that there is an apprentice working with the sponsor and the applicant coaches and instructs her. Mr Carlo Calautti is the head chef. His brother, Mr Rocco Calautti, is the manager of the café. The café seats about 70 people and is open from Monday to Sunday.
The applicant stated that he commenced working for the sponsor in August 2013. The Tribunal informed the applicant that the base rate of pay in the nomination approval in relation to the applicant for the occupation of Cook is $54,000. The Tribunal informed the applicant that it has some concerns that his income for the year ended 30 June 2016 was only $24,287, according to the notice of assessment from the ATO. The Tribunal informed the applicant that it has some concerns that during a period when he was full-time he was earning significantly less than the base rate of pay shown in the nomination approval. The applicant stated that the sponsor will pay the amount stated in the contract, when the applicant is granted the visa.
The applicant stated that he works Sunday, Monday, Tuesday and Wednesday from 7am to 3pm. The Tribunal informed the applicant that this means that he is working 32 hours a week and it has concerns as to whether he is working full-time. The applicant stated that he earns $500 clear a week and this is the amount paid into his bank account.
FINDINGS AND REASONS
The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da).
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 this case the nominated occupation is Cook.
In deciding whether an applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation, the Tribunal is guided by the skill level as set out in ANZSCO which is an indicative guide. The Tribunal finds that ANZSCO is an appropriate measure of the skills and qualifications of a Cook.
In determining the skills and qualifications required for a Cook, ANZSCO states that most occupations in this unit group of Cooks have a level of skill commensurate, in Australia, with an AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3). At the time of the visa application, the applicant had qualifications in Management and Business but did not have qualifications in Commercial Cookery. However, the applicant applied for recognition of prior learning from BBHT and was successful in being issued with a Certificate IV in Commercial Cookery. BBHT issued to the applicant a Certificate IV in Commercial Cookery on 6 February 2017 and a transcript of results showing that the applicant met the competency for the subjects through RPL.
The Certificate IV in Commercial Cookery indicates that the course is within the Australian Qualifications Framework and BBHT provides nationally recognised training. The Tribunal accepts that the applicant has been issued with a Certificate IV in Commercial Cookery.
The Tribunal therefore finds that the applicant has the skills and qualifications necessary to perform the tasks of the nominated occupation of Cook as he has a Certificate IV in Commercial Cookery. The Tribunal is also satisfied that the applicant has the employment background necessary to perform the tasks of the nominated occupation. The Tribunal accepts that the applicant has been working as a Cook for the sponsor since about August 2013.
The Tribunal finds that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).
The Tribunal has referred to its concerns in this case because it appears that although the applicant is working for the sponsor, he is only working 32 hours a week and is being paid less than half of the base rate of pay referred to in the nomination approval on 24 June 2015. The applicant was paid $24,287 by the sponsor for the year ending 30 June 2016 but the base rate of pay (and the guaranteed annual earnings) ($54,000) in the nomination approval are more than double this amount.
However, 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, including whether there is a current approved nomination.
DECISION
The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:
·cl.457.223(4)(da) of Schedule 2 to the Regulations.
D. Dimitriadis
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.
1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, 2013, Version 1.2
UNIT GROUP 3514 COOKS

COOKS prepare, season and cook food in dining and catering establishments.
Chefs, Fast Food Cooks and Kitchenhands are excluded from this unit group. Chefs are included in Unit Group 3513 Chefs. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants.
Indicative Skill Level:
Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
In Australia:
AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

In New Zealand:
NZ Register Level 4 qualification (ANZSCO Skill Level 3)

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
Tasks Include:
oexamining foodstuffs to ensure quality
oregulating temperatures of ovens, grills and other cooking equipment
opreparing and cooking food
oseasoning food during cooking
oportioning food, placing it on plates, and adding gravies, sauces and garnishes
ostoring food in temperature controlled facilities
opreparing food to meet special dietary requirements
omay plan menus and estimate food requirements
omay train other kitchen staff and apprentices

Occupation:
351411 Cook

351411 COOK

Prepares, seasons and cooks food in a dining or catering establishment.
Skill Level: 3

[2017] AATA 313

2 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction