Sutto (Migration)

[2020] AATA 4878

Sutto (Migration) [2020] AATA 4878 (6 October 2020)

DECISION RECORD

1. DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Nicola Sutto

   CASE NUMBER:  1807072

   DIBP REFERENCE(S):  BCC2016/3150623

   MEMBER:Andrew McLean Williams

   DATE:6 October 2020

   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 06 October 2020 at 3:34pm

   CATCHWORDS
   MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Café or Restaurant Manager – necessary skills, qualification and experience – highest level of formal qualification – Certificate III in Hospitality – relevant experience in the hospitality industry – nature or veracity of the applicant’s prior employment – ‘managerial’ or ‘supervisory’ roles – prior non-managerial experience – decision under review remitted

   LEGISLATION
   Migration Act 1958 (Cth), s 65
   Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2018, refusing to grant Mr Nicola Sutto a Temporary Business Entry (Class UC) visa, pursuant to s.65 of the Migration Act 1958 (‘the Act’).

3. Mr Sutto (‘the visa applicant’) applied for the visa on 22 September 2016 in relation to the nominated position of Café or Restaurant Manager (ANZSCO 141111) at the ‘1889 Enoteca’ Restaurant at Woolloongabba in Brisbane, working for IL LUPO Pty Ltd (as trustee for the Il Lupo Unit Trust).

4. 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 that the visa applicant satisfy one of the ‘streams’ for the visa. One of these streams is that as contained in cl.457.223(4), which is now 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 (in this instance Il Lupo Pty Ltd as trustee for the Il Lupo Family Trust, trading as 1889 Enoteca Restaurant). No claims have been made in respect of the alternate streams in cl.457.223.

5. The delegate refused to grant the visa on the basis of the delegate’s view that cl.457.223(4)(da) was not met, because the delegate took the view that the applicant’s prior skills and experience were not commensurate with those of either an Associate-level degree, Advanced Diploma, or Diploma, or that the evidence supporting the application was such that Mr Sutto could in the alternate demonstrate at least three years relevant experience, via his past employment.

6. The applicant appeared before the Tribunal on 1 September 2020 by telephone in order to give evidence. The applicant was represented in relation to this review by his registered migration agent, Mr Fabrizo Fiorino of Porta Lawyers (MARN 1795302), and by Mr Dan Fuller, of counsel. Mr Fuller and Mr Fiorino also attended the Tribunal hearing on 1 September 2020, again by telephone. 

7. Prior to the hearing, Mr Fiorino assembled a comprehensive suite of additional evidence, particularly going to the issue of the visa applicant’s prior experience in the hospitality industry.  Mr Fuller then prepared detailed written submissions on that evidence, also addressing therein all relevant matters of policy and law.  These further documents were duly filed in the Tribunal by the applicant’s authorized representative 7 days prior to the hearing, in accordance with the requirements now mandated by cl.6.11(b) the COVID-19 special measures practice direction – Migration & Refugee Division.  After the hearing Mr Fuller took the further precaution of filing supplementary submissions (those dated 2 September 2020), clarifying one technical legal aspect in his original written submissions. 

8. For the following reasons, the Tribunal has concluded that the matter should now be remitted to the department for reconsideration, subject to a direction from the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. A Subclass 457 visa applicant must meet the criteria in either subclause 457.223(2), or (4). The criteria in subclause (2) apply only in the case of employment nominations arising pursuant to labour agreements, which is not the case here. Accordingly, the issue arising in this case is whether the visa applicant meets the requirements of cl.457.223(4), and specifically that contained in cl.457.223(4)(da).

   Skills, qualification and employment background of the applicant

10. Clause 457.223(4)(da) requires that the applicant have the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), and 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 particular manner specified by the Minister. In this case the nominated occupation is that of a Café or Restaurant Manager (ANZSCO 141111). No specific manner for demonstrating the necessary skills of that occupation have been specified by the Minister by means of an instrument for purposes of cl.457.223(4)(e). Skills assessment may therefore be undertaken ‘globally’, in light of all of the available evidence at the time of the making of the decision.

11. In the decision now under review the delegate commenced by noting that the indicative skill level for the occupation of Café or Restaurant Manager as specified by ANZSCO Code 141111 is skill level 2, thus requiring that the visa applicant hold an AQF Associate Degree, an Advanced Diploma, or a Diploma, although further noting that at least three years of relevant experience may also serve as an effective substitute for any of these formal qualifications. 

12. In the instant case, the visa applicant’s highest level of formal qualification is that of a ‘Certificate III’ in Hospitality issued by the Royal Brisbane International College on 20 September 2016.  This is a qualification that is beneath the necessary skill level 2.  In these circumstances the visa applicant sought to rely upon prior relevant experience working in the hospitality industry in order to make up for that.  This prior experience included, inter alia, an employment reference from the ‘Luna Nuova’ Restaurant and Bar in Venice, Italy which indicated that the applicant had worked as an assistant manager for six months, before being promoted to manager in December 2012 whereupon the applicant continued to work at that establishment until February 2015.

13. In refusing the visa application, the delegate noted that the department’s post in London had not been able to confirm the complete accuracy of the information regarding the applicant’s prior employment at the Luna Nuova Restaurant in Venice; and the delegate seemingly also attached little relevance to the applicant’s other specified employment history, in circumstances where any of the prior jobs did not happen to have the term ‘manager’ in the title.  On this basis the delegate could not be satisfied that the applicant could meet the necessary skills requirement for the nominated position via his prior work experience.

14. On the hearing of this application for review the applicant has submitted extensive documentary evidence showing his prior work experience and work history and Mr Fuller of counsel has then made extensive submissions thereon, making the point that prior non-managerial experience in the hospitality industry is a matter that still needs to be considered under the ANZSCO rubric of ‘relevant experience’, before then culminating in a submission that the sum total of all the applicants prior work experience - whether described as managerial or otherwise - is now more than adequate as a practical substitutes for any putative deficiency in the visa applicant’s formal qualifications.  In this latter regard, the additional evidence produced before the Tribunal removes any questions regarding the adequacy of information regarding the nature or veracity of the applicant’s prior employment whilst working at the Luna Nuova Restaurant in Venice, and the summary of the applicant’s combined prior work experience - as  now produced as Schedule 1 to Mr Fuller’s written submissions - shows that the applicant has around seven-and-a-half years of prior hospitality experience, and that more than 5.83 years full-time equivalent were spent in either ‘managerial’ or ‘supervisory’ roles.  The Tribunal accepts all of that evidence.  The Tribunal also accepts the correctness of Mr Fuller’s submission that ‘relevant experience’ as a substitute for formal qualifications must be taken to include time spent gaining work experience in related occupations or activities required for the competent performance of the tasks in an occupation; and that this should not be regarded as an enquiry that is confined to experience in performing the actual tasks of the nominated occupation.  Similarly, the Tribunal accepts that prior non-managerial experience in the tasks of the hospitality industry are still matters that may be taken into consideration as part of relevant experience when assessing qualifications for the Café or Restaurant Manager occupation. 

15. As a final factual matter, it is to be noted that since the date of the delegate’s refusal decision the visa applicant has spent a further two-and-a-half years in the nominated position of Restaurant Manager at 1889 Enoteca.  In the noted absence of any temporal limitation in subclause 457.223(4)(da), this is additional relevant experience that the Tribunal may also take into account.

16. On the basis of the accepted evidence, the visa applicant has ample relevant hospitality industry experience, well more than the minimum of three years that may serve as a substitute for the listed formal qualifications in ANZSCO 141111.    

17. For these reasons the applicant satisfies the requirements of cl.457.223(4)(da).

18. 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

19. 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.

    Andrew McLean Williams
    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.