Sharp (Migration)

[2021] AATA 3706

Sharp (Migration) [2021] AATA 3706 (14 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Charlotte Victoria Sharp
Mr Fraser George Ellis

CASE NUMBER:  1836907

HOME AFFAIRS REFERENCE(S):          BCC2018/660577

MEMBER:Katie Malyon

DATE:14 July 2021

PLACE OF DECISION:  Sydney

DECISION: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.

Statement made on 14 July 2021 at 12:20 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cafe or Restaurant Manager – necessary skills, qualification and experience – comparability of work experience – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 (Cth), cl 6704
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 8 February 2018.

3. At the time the visa application was lodged, Class UC contained Subclass 457. 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 2 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 stream in cl.457.223, the labour agreement stream.

4. The delegate refused to grant the visas on 29 November 2018 on the basis that cl.457.223(4)(da) of the Regulations was not met because, based on an assessment of the available information, the delegate found that the qualifications and employment background of the primary visa applicant, British national Charlotte Victoria Sharp, are not commensurate with the indicative skill level specified in the Australia New Zealand Standard Classification of Occupations (ANZSCO) for the nominated occupation of Cafe or Restaurant Manager ANZSCO 141111.  Miss Sharp had been successfully nominated on 25 October 2018 by approved standard business sponsor Spin Coffee Pty Ltd (the Company).  The Company operates a coffee cafe in Bourke Street, Melbourne.  A copy of the delegate’s decision was provided to the Tribunal. 

5. Following refusal of the applicants’ Subclass 457 visa, an application for review was filed with the Tribunal.  The applicants were represented in relation to the review by their newly appointed registered migration agent/immigration lawyer, Ahmed Lababidi of Zouki Lawyers. 

   s.359(2) letter

6. The Tribunal wrote to the applicants on 31 March 2021 inviting them to provide current information about the skills, qualifications and employment background of the primary visa applicant Miss Sharp.  Later that day, a request was received for an extension of time to provide the information on the basis that some documentation would need to be obtained from overseas.  The Tribunal granted an extension until 18 May 2021.

7. On 15 May 2021, the representative forwarded a number of documents to the Tribunal including an updated signed reference letter dated 9 May 2021 from the Manager of Miss Sharp’s former employer The Showground Table Table in Norwich, United Kingdom.   Also provided was a Statutory Declaration from Miss Sharp sworn 21 May 2021 which sets out in considerable detail her experience in the hospitality industry, where she has worked and the nature of the roles since commencing work as a Waitress in Wymondham, UK at the Number 24 restaurant in May 2013 after completing her A Levels.

   Scheduled hearing

8. Having reviewed documentation provided, the Tribunal invited the applicants to attend a hearing on 14 July 2021.  A Tribunal officer contacted the representative to suggest the nature of further information Miss Sharp may wish to provide. 

9. Prior to the scheduled hearing, the representative submitted the following documentation to the Tribunal:

   ·updated CV for Miss Sharp;

   ·signed Statement from George Kozman, a Director of the Company, dated 6 July 2021 confirming Miss Sharp continues to the employed with the Company in the role of Cafe/Restaurant Manager, a position she has held since November 2017: that is, for the past 3½ years.  The letter also sets out in detail her duties in the role;

   ·payslips for Miss Sharp from the Company for the period 26 August 2019 to 27 June 2021, that is, the last 2 years 11 months;

   ·PAYG Payment Summary for Miss Sharp for the year ended 30 June 2019, her first full year with the Company.  The representative explained a PAYG Payment Summary for Miss Sharp for the year ended 30 June 2020 would have been provided but it is not available as the Company uses the single touch payroll (STP) which means the Australian Taxation Office (ATO) receives information each time the Company processes its payroll and, hence, it cannot produce a PAYG Payment Summary for Miss Sharp for the year ended 30 June 2020; and,

   ·Notices of Assessment issued to Miss Sharp by the ATO for years ending 30 June 2019 and 2020.

10. For the following reasons, the Tribunal has decided that the decision under review should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider the scheduled hearing to be necessary as it was able to find in favour of Miss Sharp on the basis of the material before it pursuant to s.360(2)(a) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether, at the time of this decision, the primary visa applicant Charlotte Victoria Sharp meets the requirements of cl.457.223(4)(da) of Schedule 2 to the Regulations.

    Skills, qualification and employment background of the applicant

12. Clause 457.223(4)(da) of Schedule 2 to the Regulations 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 Cafe or Restaurant Manager ANZSCO 141111.

13. As noted above, the delegate did not accept Miss Sharp had the necessary experience to perform the tasks of Cafe or Restaurant Manager.  Specifically, the delegate did not accept Miss Sharp’s work experience as set out in the reference letter dated 4 February 2018 from Robert Fulcher, the Manager of The Showground Table Table (now known as the Whitebread Inns), was comparable to that of a Cafe or Restaurant Manager: rather, the delegate opined the responsibilities reflect a role more akin to a Customer Service Representative / Waiter with some supervisory responsibilities.  The delegate did, however, accept that Miss Sharp had worked as a Manager with the Nixon Hotel in Docklands (Melbourne) for 8 months from February 2017 to October 2017 as confirmed by her work reference dated 10 January 2018. 

14. The indicative qualifications and tasks for the occupation of Cafe or Restaurant Manager are set out in the Australia and New Zealand Standard Classification of Occupations (ANZSCO).  While the ANZSCO is not binding on the Tribunal, it has nonetheless referred to the ANZSCO to inform its consideration of whether Miss Sharp has the skills, qualifications and employment background necessary to perform the nominated occupation. 

15. The ANZSCO states that the indicative skill level for the occupation of Cafe or Restaurant Manager in Australia is:

    AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2). 

    At least 3 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. 

16. Further, the ANZSCO states that Cafe and Restaurant Managers organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.  The tasks of the occupation listed in the ANZSCO include:

    ·planning menus in consultation with Chefs

    ·planning and organising special functions

    ·arranging the purchasing and pricing of goods according to budget

    ·maintaining records of stock levels and financial transactions

    ·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance

    ·conferring with customers to assess their satisfaction with meals and service

    ·selecting, training and supervising waiting and kitchen staff

    ·may take reservations, greet guests and assist in taking orders.

17. The Tribunal notes that Miss Sharp is required to demonstrate that she has the skill level for the nominated occupation of Cafe or Restaurant Manager as at the time of this decision (emphasis added).  It is accepted that Miss Sharp has no qualifications in the nominated occupation.  Whilst the Tribunal acknowledges the updated signed reference letter dated 9 May 2021 from the Manager of Miss Sharp’s former employer The Showground Table Table in Norwich, no evidence has been provided to confirm the authority of the referee, Ms Anthea McNamara, to issue the reference letter.  The Tribunal’s on-line research has established that the referee is currently involved in the catering industry in Norwich.  Whilst it acknowledges this is not inconsistent with also being a Manager at The Showground Table Table, the Tribunal gives greater weight to the evidence confirming Miss Sharp’s 3½ years’ recent experience in the role of Cafe or Restaurant Manager with the Company. The evidence provided is referred to above at para [9].

18. Director George Kozman’s reference letter dated 6 July 2021 confirms that, as the Company’s Cafe / Restaurant Manager since November 2017, Miss Sharp’s duties have been:

    -Open and close of (sic) venue

    -Planning and designing new menus in consultation with head chef

    -Organising trials to find new front of house staff (occasionally kitchen staff)

    -Training incoming staff regarding businesses expectations and procedures

    -Ensuring the cafe is clean and in compliance with health regulations

    -Monitoring and control of stock

    -Planning budgets and preparing rosters

    -Ordering stock and communicating with suppliers to ensure that cost of goods is within budget

    -Organising and coordinating functions

    -Organising and coordination of catering orders

    -Writing invoices and dealing with account payments

    -Taking reservations/greeting customers/confirming customer satisfaction

    -Having knowledge of local market trends & competitors’ services/prices

    -Certify that all food served is up to business standards

    -Marketing and promotions of new products/services

    -Counting tills/cash handling

    -Complying with and ensuring that Covid-19 regulations are being followed

    -implementing, and updating a Covid-Safe Plan.

19. In addition, Miss Sharp has provided evidence of her income whilst working with the Company in the period 1 July 2018 to 27 June 2021 (that is, for the last 3 years) as the Company’s Cafe / Restaurant Manager.  She has provided her PAYG Payment Summary for the year ended 30 June 2019 and payslips issued by the Company to her since that time.

20. The Tribunal has considered evidence provided in support of the review application.  Taking all of the evidence into account, the Tribunal is satisfied that, prior to lodgement of her Subclass 457 visa application, Miss Sharp had accumulated 8 months of experience in the position of Cafe Manager with Nixon Hotel in Docklands.  The Tribunal also accepts that she would not have been offered such a position without having gained some experience in the role before arriving in Australia.  For the reasons outlined above, the Tribunal accepts that Miss Sharp’s 3½ years’ experience in the position of Cafe/Restaurant Manager with the Company have added to her earlier experience in that role.  Accordingly, the Tribunal is satisfied that Miss Sharp has more than 3 years’ experience in the nominated occupation of Cafe or Restaurant Manager ANZSCO 141111.  As such, it accepts she has the skills, qualifications and employment background considered by the Minister to be necessary to perform the tasks of the nominated occupation of Cafe or Restaurant Manager.

21. The second named applicant, Mr Fraser George Ellis, applied for his visa on the basis of being a member of the family unit of Miss Sharp.  On 22 December 2020, the representative submitted a Form 1022 Notification of Changes in circumstances advising that the couple are no longer in a defacto relationship.  The issue of whether Mr Ellis is the spouse or defacto partner of Miss Sharp is a time of decision criteria to be considered by the Department on remittal of the visa application.  Accordingly, the Tribunal will forward to the Department a copy of the Form 1022 submitted by the applicants’ representative. 

22. In passing and by way of final comment, the Tribunal notes that the applicants applied for a Subclass 457 visa.  Relevantly, the Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations). The Amending Regulations repealed and replaced r.2.72 of the Regulations which sets out the criteria for nominations relating to Subclass 457 visas, and they also repealed the Subclass 457 visa. However, the validity of the nomination of the position of Cafe or Restaurant Manager made by the Company in respect of nominee Miss Sharp has been preserved in this case having regard to the provisions of cl.6704(15) of the Amending Regulations.

23. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

24. 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) Schedule 2 to the Regulations.

    Katie Malyon

    
    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.