VEIRAM (Migration)

[2024] AATA 1620

VEIRAM (Migration) [2024] AATA 1620 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Merri-Liis VEIRAM

REPRESENTATIVE:  Mr Christopher William Agnew

CASE NUMBER:  2205268

HOME AFFAIRS REFERENCE(S):          BCC2020/2807429

MEMBER:Ian Berry

DATE:16 April 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

·cl 482.221 of Schedule 2 to the Regulations.

Statement made on 16 April 2024 at 3:28pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – short-term stream – Café or Restaurant Manager – applicant has worked in the nominated occupation for at least 2 years – decision under review remitted     

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 482.221

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 18 March 2022 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 12 December 2020. 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 occupation 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 482.221 of Schedule 2 to the Regulations because of insufficient evidence of having work in the nominated position or a related field for at least 2 years.

4. The applicant appeared before the Tribunal on 16 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s managing director Mr Baturo.

5. The applicant was represented in relation to the review.  The applicant’s representative attended the hearing.

6. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has been employed in the nominated occupation or a field related to the occupation for at least 2 years.

Requirement to have worked for at least 2 years

1. Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

2. The applicant is in the employ of the Kellett Street Pty Ltd trading as ‘Libertine Brisbane’ in inner-city Brisbane, where she is employed as the restaurant manager and has been so since 1 July 2020 to the present time.  She first commenced working for the Libertine Brisbane on 24 August 2019 where she was casually employed as a waitress.

3. Previously, the applicant had worked for the Cote Brasserie (Oxford) in the United Kingdom.  Very little detail in relation to her employment has been given in the applicant’s visa application.  It is now irrelevant as the applicant has been working as a restaurant manager for over 2 years and more accurately about 4 years.  As the restaurant manager, she is receiving $85,000 per year plus the superannuation guarantee contribution.  The restaurant is open from Wednesday to Sunday in the hours of 7 PM to 10 PM though occasionally longer on Friday and Saturday.  It is also open for lunch between midday and 2:30 PM for Friday Saturday and Sunday.  It is closely located to Suncorp Stadium and special events may alter those hours to cater with the increased restaurant traffic.

4. The applicant is one of 3 full-time staff in front of house.  The other full time positions are the assistant manager and the bar supervisor.  Back of house consists of a chef in a full-time position with presently a executive chef who has been with the organisation for at least 10 years, 3 or 4 cooks and 4 kitchenhand all casually employed.

5. The applicant explains her role as they restaurant manager is to implement the budget set weekly by the operations manager in consultation with the executive chef.  The applicant says she is involved in this process in that one of her tasks is to pass on to management as to what meals are not selling those which may involve an issue which requires resolution at a higher level.  Her involvement is in hiring, firing and training and went into detail as to the vetting resumes, for staff to be placed on a trial shift, and food safety.

6. Staff training is overlooked by the applicant ensuring the continuity of the performance of staff.  In relation to staff issues, she explained as to how that process worked involving a process to ensure the staff members are given an opportunity to improve.

7. The applicant involves herself in seeking out staff which in recent times included a chef through the Internet site Seek.  The applicant is involved in some purchasing that ultimately these matters concern more the head chef and the executive chef.

8. In summary, the applicant has been employed with Libertine Brisbane from 2020 to 2024.  The managing director Mr Baturo was satisfied with the applicant’s performance and certainly confirms the applicant having a future with his restaurant. 

9. The Tribunal has satisfied and finds the applicant has had experience as a restaurant manager for at least 2 years and is now performing that occupation in that time.

10. For these reasons, cl 482.221 is met.

DECISION

1. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

   ·cl 482.221 of Schedule 2 to the Regulations.

   Ian Berry
   Member