Theodora (Migration)

[2022] AATA 4535

Theodora (Migration) [2022] AATA 4535 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chrysillia Theodora

CASE NUMBER:  1917091

HOME AFFAIRS REFERENCE(S):          BCC2019/2625770

MEMBER:Amanda Mendes Da Costa

DATE:2 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

Statement made on 2 November 2022 at 1.44pm

CATCHWORDS 
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Café or Restaurant Manager – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.212

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 Home Affairs on 27 June 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 May 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Café or Restaurant Manager (ANZSCO Code 141111).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.212(1) of Schedule 2 to the Regulations because she was not the subject of an approved nomination.

4. The applicant appeared before the Tribunal (by telephone) on 27 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Malcolm Fisher.

5. The Tribunal has considered the information in both the Departmental and Tribunal files.

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant meets the requirements of cl 482.212(1) of Schedule 2 of the Regulations.

   Requirement for an approved nomination

8. Clause 482.212(1) requires that the nomination identified in the visa application is approved, was made by a person who was an approved work sponsor at the time of approval and has not ceased.

9. In her decision, the delegate found that the applicant’s sponsoring employer Fisher & Oakley Pty Ltd (the nominator) had made a nomination application for a position associated with the applicant, but that application was refused by a delegate of the Minister.

10. The Tribunal notes that the nominator subsequently sought a review of that decision but on 13 July 2022 the Tribunal affirmed that decision.

11. Accordingly, the delegate found that the applicant was not the subject of an approved nomination and therefore did not meet the requirements of cl 482.212(1).

12. The Tribunal discussed the above information with the applicant during the hearing.  She told the Tribunal that she had been employed by the nominator for a period of five years as a Restaurant Manager.  She explained that the nomination application was refused by a delegate of the Minister who misunderstood the nature of the nominator’s business and found that it was a café serving predominantly takeaway food.  The applicant said that the business was a restaurant with a liquor licence which served eat-in and takeaway meals, with the most of the meal’s beings served to customers eating in the restaurant.

13. The applicant further explained that the nominator’s business was severely affected by the Covid-19 pandemic and her work hours were reduced from full-time to part-time in early 2021.  The applicant said that in August 2021 she resigned her employment with the nominator to commence employment as a Restaurant Manager with a different employer who also operates a restaurant.

14. The applicant explained that she is currently working on a part-time basis and is concentrating on undertaking a skills assessment.  She confirmed that she is not the subject of an approved nomination made by either Fisher & Oakley Pty Ltd or any other nominator.

15. Mr Fisher told the Tribunal that he had been a director of the nominating company (Fisher & Oakley Pty Ltd) and had operated its business ‘Labeach Fish & Chips Cullen Bay’ – a restaurant serving seafood to dine-in and takeaway customers.  He confirmed that the applicant had been employed in the business as a Restaurant Manager for several years until she resigned in August 2021.

16. Mr Fisher explained that although the business sponsored the applicant for the position of Café and Restaurant Manager, its nomination application was refused by a delegate of the Minister on the basis that his restaurant was a ‘limited-service restaurant’.  Mr Fisher further explained that although it served both dine-in and takeaway meals, the restaurant predominantly served meals to customers who ate inside the restaurant.  In this respect he notes that the restaurant’s liquor licence permitted staff to serve alcohol to customers dining in the restaurant but did not permit it to be sold on a takeaway basis.

17. Mr Fisher confirmed that the nominator sought a review of the delegate’s decision to refuse the nomination application, but it was affirmed by the Tribunal.

18. Mr Fisher said that the applicant resigned her position with the business in August 2022 to commence employment as a Restaurant Manager in another restaurant.  In early 2022 Mr Fisher sold the business and no longer employs the applicant.  He described her as an excellent employee who was diligent, hardworking, efficient, and good with customers.

19. In Mr Fisher’s opinion, the applicant was one of the best employees he had employed in over 18 years of involvement in the hospitality industry.

    Findings

20. The Tribunal accepts that the applicant is a skilled and experienced Restaurant Manager who was a valued employee.  The Tribunal further accepts that the delegate’s decision to refuse the nomination application was not due to any act or omission on the part of the applicant who was described by her former employer (Mr Fisher) as one of the best employees he employed in his 18-year career in the hospitality industry.

21. However, based on the evidence before it, the Tribunal finds that applicant’s sponsoring employer Fisher & Oakley Pty Ltd (the nominator) made a nomination application for a position associated with the applicant, but that application was refused by a delegate of the Minister.

22. The Tribunal notes that the nominator subsequently sought a review of that decision but on 13 July 2022 the Tribunal affirmed that decision.  There is no evidence before the Tribunal which shows that the applicant is the subject of an approved nomination by another sponsor.

23. Accordingly, the Tribunal is not satisfied that the applicant is not the subject of an approved nomination and therefore does not meet the requirements of cl 482.212(1).

24. As one of the essential requirements for the visa is not met, the decision under review must be affirmed

    decision

25. The Tribunal affirms the decision not to grant the applicant Temporary Skill Shortage (Class GK) visa.

    Amanda Mendes Da Costa
    Member