Sutto (Migration)

This matter concerned an appeal by a visa applicant against a decision to refuse a Subclass 457 (Temporary Work (Skilled)) visa. The nominated occupation was Café or Restaurant Manager. The applicant’s highest formal qualification was a Certificate III in Hospitality, which was below the indicative skill level 2 required for the occupation. The applicant sought to rely on prior work experience to meet the skills requirement, including a period as an assistant manager and then manager at an Italian restaurant.

The primary legal issue before the court was whether the applicant possessed the necessary skills, qualifications, and employment background to perform the tasks of a Café or Restaurant Manager, as required by subclause 457.223(4)(da) of the Migration Regulations 1994. This involved assessing the adequacy of the applicant's formal qualifications and prior employment experience, particularly in light of concerns raised by the department regarding the veracity of some of the employment information provided.

The court noted that for the nominated occupation, ANZSCO indicated a skill level 2, typically requiring an AQF Associate Degree, Advanced Diploma, or Diploma, though at least three years of relevant experience could substitute for these qualifications. The delegate had refused the visa application, partly because the department's post in London could not confirm the complete accuracy of the applicant's employment at the Luna Nuova Restaurant and Bar, and because other prior jobs lacked the explicit title of "manager." The court found that the delegate had attached insufficient relevance to the applicant's overall employment history and that a global assessment of all available evidence was permissible, as no specific manner for demonstrating skills had been prescribed by the Minister under subclause 457.223(4)(e).

Consequently, the Tribunal remitted the application to the department for reconsideration, directing that the visa applicant be considered to meet the criteria under subclause 457.223(4)(da).