Varani (Migration)

[2019] AATA 4839

Varani (Migration) [2019] AATA 4839 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Claudio Varani

CASE NUMBER:  1707221

DIBP REFERENCE(S):  BCC2016/1592834

MEMBER:Karen Synon

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 October 2019 at 12:37 pm (VIC time)

DATE OF WRITTEN RECORD:                30 October 2019

PLACE OF DECISION:  Melbourne

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.

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 – skills, qualifications and employment background necessary for nominated occupation – experience in home country – decision under review remitted

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(da)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 March 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 October 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons.  The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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.

4. In this case the nominated occupation is ‘Café or Restaurant Manager”.

5. The Australian and New Zealand Standard Classification of Occupations (ANZSCO) is not binding on the Tribunal and nor does it provide a comprehensive analysis of the role of a ‘Café or Restaurant Manager’.  However the Tribunal has referred to ANZSCO to inform its consideration of whether the applicant has the skills necessary to perform the nominated occupation.

6. In considering the ANZSCO definition and tasks for the occupation of ‘Café or Restaurant Manager’ (Code 141111), it records the indicative skill level in Australia as:

   AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

7. The Tribunal has before it evidence that the applicant was awarded a Diploma of Hospitality on the basis of Recognition of Prior Learning by the Australian Institute of Business & Technology  on 28 February 2018 and, in addition, now has over 3 years’ experience working as a Café or Restaurant Manager at CRU Café & Wine Bar, his sponsoring employer.  The Tribunal accepts the evidence of Mr Tony Donnino, who appeared in person at the hearing, that the applicant is a vital asset in his business and gives him to opportunity to take days off and or take holidays because the applicant is able to resolve any problems that arise when he is not there.  He will be critical to the business’ expansion plans in opening a 100 seat venue in January 2020 to be called CRU Warehouse.  Mr Donnino’s evidence is that the applicant is in charge of day to day operations including all ordering and stock control, training employees, liaising with other management and ensuring quality control.

8. On the basis of the applicant’s qualifications and employment experience the Tribunal is satisfied the applicant has the indicative skill level cited in ANZSCO and thus has demonstrated he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Cafe or Restaurant Manager’.

9. The Tribunal notes the delegate’s concern that a verification phone call to Mr Nicolino Rossi, the applicant’s previous Italian employer, by the Australia High Commission in London, resulted in Mr Nicolino Rossi stating that the position the applicant held was that of an “experienced waiter” and that the applicant did not have some of the responsibilities of a restaurant manager.  However the Tribunal took witness evidence from Mr Nicolino Rossi, by telephone, during the hearing who confirmed that he is one of 2 bothers working in different restaurants and it was his brother Vittoriano who was running Tara Brooch and he, Nicolino, did not work directly with the applicant.  He was just there when the phone call came in.  He said the Tribunal should rely on the letter his brother wrote that the applicant was employed as a Dining Room Services Manager.

10. On this basis the Tribunal is satisfied that the applicant did not provide any false information to the department in support of his visa application and that he was employed as a Dining Room Services Manager at Tara Brooch Restaurant in Italy.

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

12. 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

13. 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)

    Karen Synon
    Member