Varani (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking review of a decision concerning a Temporary Business Entry (Class UC) Subclass 457 visa. The dispute centred on whether the applicant possessed the necessary skills, qualifications, and employment background for the nominated occupation of ‘Café or Restaurant Manager’.

The primary legal issue before the Tribunal was to determine if the applicant met the requirements of clause 457.223(4)(da) of the Migration Regulations, which mandates that an applicant must have the skills, qualifications, and employment background necessary to perform the tasks of the nominated occupation. While the Australian and New Zealand Standard Classification of Occupations (ANZSCO) is not binding, the Tribunal referred to it for guidance on the indicative skill level for a ‘Café or Restaurant Manager’, which is Skill Level 2, typically requiring an AQF Associate Degree, Advanced Diploma, or Diploma.

The Tribunal reasoned that the applicant's Diploma of Hospitality, obtained through Recognition of Prior Learning, and his over three years of experience as a Café or Restaurant Manager at CRU Café & Wine Bar, demonstrated he met the indicative skill level. The Tribunal accepted evidence that the applicant was crucial to the business's operations and expansion plans, managing day-to-day activities, ordering, stock control, training, and quality control. Furthermore, the Tribunal addressed concerns raised by the original delegate regarding a previous employer's statement that the applicant was an "experienced waiter." The Tribunal heard direct evidence from the applicant's former employer, who clarified that his brother, not he, directly supervised the applicant and that the applicant's role was that of a Dining Room Services Manager, as stated in a letter from his brother. Based on this evidence, the Tribunal was satisfied that the applicant had demonstrated the necessary skills, qualifications, and employment background.

The Tribunal set aside the original decision and remitted the matter to the Immigration Assessment Authority for reconsideration.