Shrestha (Migration)

[2019] AATA 2657

Shrestha (Migration) [2019] AATA 2657 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pujan Shrestha

CASE NUMBER:  1700649

DIBP REFERENCE(S):  BCC2016/301252

MEMBER:Ian Berry

DATE:8 January 2019

PLACE OF DECISION:  Brisbane

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 08 January 2019 at 10:41am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – occupation of Cook – skills, qualifications and employment background for the nominated occupation – anomaly in employment experience check – another employee with the same name – requisite employment experience – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration on 22 December 2016 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 Act).

2. The visa applicant applied for the visa on 20 January 2016. The delegate refused to grant the visa on the basis that the applicant has not satisfied cl.457.223(4)(da) because he has not demonstrated he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

3. The applicant appeared before the Tribunal on 12 December 2018 with the a 2^nd hearing on 7 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Pujan Shrestha and his immediate superior Mr Bridge, Mr Udas the café owner in Nepal and Mr Tamang the main cook in that café.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(da).

7. The applicant is a citizen of Nepal who arrived in Australia on 29 June 2013 on a TU-573 student visa.

8. This visa required the applicant to undertake a course of study and he did so. The applicant alleges he was a cook at the Ginger Café and Bar located in Kathmandu, Nepal. He further alleges he worked there from 1 April 2011 to 10 May 2013. It appears to be a clerical error in his visa application as he states that it was from 10 April 2011 to 1 May 2013.

9. The Department questions the veracity of this experience as an officer of the High Commission of Australia in New Delhi telephoned both the owner and the main cook at the Ginger Café and Bar on 26 August 2016. That officer found that at the time of making the call there was a person working there as a cook with the same name as the applicant. At that time, the applicant was in Australia and had been so since 29 June 2013.

10. Before the applicant made his application on 21 January 2016, and after the completion of his course of study where he achieved a qualification of a Certificate IV in Commercial Cookery with recognised prior learning (RPL). He states that he has worked as a chef since April 2011 and in Australia work since October 2013[1].

    [1] Tribunal file: folio 7 – visa application folio 7

11. His experience, as is noted on his visa application, not only refers to the Ginger Café and Bar but also the State Library Café & Restaurant from 10 November 2014 to 30 June 2015. The applicant was employed as a cook, and his duties were food preparation, baking, cooking, preparing, and general kitchen cleaning.

12. From 1 July 2015 to 20 January 2016, the applicant was employed as a cook at the Pig N Whistle, from 1 July 2015 to 20 January 2016. Again employed as a cook, his duties included food preparation, cooking, food ordering and the safe handling of food.

13. The applicants earlier employment positions include been employed as a pizza maker at Crust Gourmet pizza (Hamilton) from 1 October 2013 to 30 January 2014 and at Crust Gourmet Pizza at New Farm where he was employed from 1 February 2014 to 30 September 2014. Both those positions have similar duties which consisted of pizza making, general cleaning, food preparing, food ordering, stock control, and safe handling of food.

14. Presently, the applicant is employed as a cook in Brisbane and the nomination has been approved. The applicant’s employment is at a well-known restaurant business in the Brisbane. Mr Bridge a chef within that restaurant gave evidence to the Tribunal at the request of the applicant. His evidence substantiated the applicant’s claim to have the necessary experience  to be a cook, and his reference was accompanied by positive comments on his work ethic and skills as a cook.

15. The applicant’s employment in Nepal is challenged by the Department on the ground that, if the applicant had not worked for the Ginger Café and Bar, then the applicant did not have the relevant experience.

16. The Tribunal finds his experience is not dependent on his not working at the Ginger Café and Bar The experience is set out in this decision is sufficient for the nominated position as a cook.The Tribunal is satisfied he did have the relevant experience.

17. The Tribunal does not make a finding as to whether he had worked at the Ginger Café and Bar from 1 April 2011 to 14 May 2013. The hearing of the applicant’s application happened over 2 days. The first day the Tribunal heard the evidence from the owner Mr Udas and the main cook Mr Tamang. There were many telephone interruptions by the mobile phone dropping out, and it seems the mobile phone is the common communication mode in Kathmandu.  Mr Tamang (the main cook at the Ginger Café and Bar, had been a cook at this café since it started. He gave evidence through an interpreter who had difficulty in convincing Mr Tamang that he should listen to the question before answering.

18. The issues were whether the applicant worked at the Ginger Café and Bar for the period given, and whether there were 2 persons who both had the name of ‘Pujan Shrestha’. Evidence suggests it was a common name in Kathmandu. Mr Tamang gave a statutory declaration that at  the time of the call by High Commissioner’s officer, the café was extremely busy and he was  not sure whether the High Commissioner’s officer was talking about Mr Shrestha (the person then working there) or Shrestha who had previously been employed there.

19. The Tribunal did not have a transcript or synopsis of the High Commissioner’s officer but to a summarised version as set out by the delegate. While this may be sufficient in some circumstances, in this case it was difficult because Mr Tamang’s evidence was hampered by the communication hookup and as to whether he understood each of the questions asked of him.

20. The Tribunal is satisfied that the applicant had the  qualification at the appropriate level namely a Certificate IV in Commercial Cookery, for meeting the requirement under ANZSCO.

21. The Tribunal also accepts from the applicant has the skills and employment background necessary to perform the tasks of the nominated occupation of ‘cook’.  It follows that the Tribunal accepts that the applicant satisfies the requirements of cl.457.223(4)(da).

22. 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

23. 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.

    Ian Berry
    Member