Sirito (Migration)

[2018] AATA 1113

Sirito (Migration) [2018] AATA 1113 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Federico Tommaso Sirito

CASE NUMBER:  1607728

DIBP REFERENCE(S):  BCC2015/2145126

MEMBER:Hugh Sanderson

DATE:16 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 16 March 2018 at 3:59pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Nominated occupation – Café or Restaurant Manager – Negative skills assessment report – Tasks of nominated occupation not relevant to ANZCO tasks

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 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 27 July 2015.

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 10 May 2016 on the basis that cl.457.223(4)(e) was not met because the applicant had failed to provide a VETASSESS Skills Assessment as requested by the Department.

   Background

5. The applicant is a citizen of Italy. The applicant applied for the visa on the basis the occupation of Cafe or Restaurant Manager (ANZSCO 141111) by his sponsor, Ciccia Bella Pty Ltd trading as Da Orazio Pizza and Porchetta.

6. The applicant provided various documents in support of his application. His CV claimed that he had been employed between 2007 and 2015 as a ‘Chef de rang’. The applicant also provided information as to his academic activities. Despite this, the Department were not satisfied that clear evidence had been provided that he had the experience or academic qualifications for the nominated occupation. The Department invited the applicant to submit evidence of a formal VETASSESS Skills Assessment.

7. The applicant’s agent advised the Department on 4 September 2015 that the applicant had started the process of obtaining a Skills Assessment. The Department again wrote to the applicant on 23 October 2015 requesting him to provide the necessary information. The applicant responded by providing information as to further courses he had undertaken.

8. On 29 March 2016 the Department contacted VETASSESS who advised the Department that the skills assessment had been finalised on 15 March 2016. The Department then wrote to the applicant requesting further information, however, no response was received.

9. As no evidence of a successful VETASSESS Skills Assessment had been provided by the applicant to the Department the delegate found that the applicant did not meet the criteria in cl.457.223(4)(e) and refused the application.

   Information to the Tribunal

10. The applicant provided further documents in support of his application. This included a Diploma of Hospitality from the Get Qualified Australia College dated 25 January 2016 and a work reference from his employer and other documents from the restaurant where the applicant works.

11. The applicant appeared before the Tribunal on 5 January 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

12. The applicant said that he had previously applied for a VETASSESS report, however, this gave a negative result. He said that he was planning to get a new VETASSESS report, but wanted to wait until he had worked in Australia for three years.

13. It was agreed that the applicant have until 1 March 2018 to provide a new VETASSESS report. The applicant requested an extension of time and this was granted to him. He was required to provide the report by 15 March 2018.

14. On 14 March 2018 the applicant wrote to the Tribunal noting the VETASSESS skills assessment outcome was negative. He said that he had previously been advised by his migration agent that he should meet the criteria and provided an advice from a migration agent raising certain issues.

15. The report from VETASSESS found that the tasks of the applicant with his current employer are not highly relevant to the ANZSCO tasks for the nominated occupation and therefore the skills assessment outcome was negative. The report was dated 23 February 2018.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e).

    Skills, qualification and employment background of the applicant

18. 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 Cafe or Restaurant Manager (ANZSCO 141111).

19. The applicant was required by the Minister to demonstrate that he had the skills that are necessary to perform the occupation by obtaining a skills assessment report from VETASSESS. The applicant has acknowledged at the time the Department made their decision he had obtained the skills assessment report from VETASSESS which was negative. The Tribunal has allowed the applicant further time to obtain a skills assessment report from VETASSESS. Unfortunately, the most recent skills assessment report from VETASSESS dated 23 February 2018 is negative. The report states that based on the evidence provided to VETASSESS the qualifications and/or employment described in the report did not meet the Skills Assessment requirements for the applicant’s nominated occupation.

20. As the applicant has not demonstrated that he has the skills to perform the occupation in the manner specified by the Minister the applicant does not satisfy the requirements of cl.457.223(4)(e).

21. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Hugh Sanderson
    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.