Shrestha (Migration)

The Administrative Appeals Tribunal considered the case of Shrestha, an applicant for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicant, a citizen of Nepal, sought to have his skills, qualifications, and employment background as a cook assessed for the nominated occupation. The Department of Immigration questioned the veracity of the applicant's claimed employment experience in Nepal due to an anomaly discovered during an employment experience check.

The primary legal issue before the Tribunal was whether the applicant met the requirements of cl.457.223(4)(da) of the Migration Regulations, specifically concerning his requisite employment experience as a cook. The Department's challenge stemmed from a telephone call made by an officer of the Australian High Commission in New Delhi to the applicant's alleged former employer in Nepal, the Ginger Café and Bar. This call revealed that another employee at the café shared the applicant's name, and this individual was working as a cook at the time of the call, while the applicant was already in Australia.

The Tribunal reasoned that while the Department had raised a valid concern regarding the applicant's Nepalese employment, this single point of doubt did not definitively disqualify him. The Tribunal noted that the applicant had provided evidence of subsequent employment in Australia as a cook, including a qualification of Certificate IV in Commercial Cookery. Furthermore, a chef from the applicant's current Brisbane employer provided evidence substantiating the applicant's skills and experience. Given these factors, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for a Temporary Business Entry (Class UC) visa for reconsideration by the Minister, with a direction that the visa applicant meets the criteria under cl.457.223(4)(da) of Schedule 2 to the Regulations.