Zafeiridis (Migration)

[2017] AATA 751

Zafeiridis (Migration) [2017] AATA 751 (10 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Anastasios Zafeiridis
Ms Eleni Stefanidou

CASE NUMBER:  1611409

DIBP REFERENCE(S):  BCC2015/3942971

MEMBER:Antonio Dronjic

DATE:10 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223 (4)(da) of Schedule 2 to the Regulations.

Statement made on 10 May 2017 at 12:31pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – skills, qualifications and employment background – Pastry Cook – Hearing not required – Evidence of qualifications and work experience provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 457, cl 457.223 (4)(da)

CASES

Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 18 December 2015.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visas on 6 July 2016 on the basis that cl.457.223(4)(da) was not met because the delegate concluded that the first named applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Pastry Cook (ANZSCO 351112).

5. The applicants applied to the tribunal on 26 July 2016 for review of the delegate’s decision. With the review applications, the applicants provided a copy of the primary decision record.

6. On 10 March 2017, the tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the applicants to provide information in writing that demonstrate that the first named applicant meets the requirements of cl.457.223(4) (da).

7. On 13 March 2017, the applicants’ representative submitted a copy Certificate IV in Patisserie awarded to the first named applicant on 1 March 2017 by Future Academy from Australia. This qualification was obtained through the recognition of prior learning process (RPL).

8. On 25 April 2017, the applicants’ representative submitted:

   ·Updated Employment Agreement between the sponsoring business and the first named applicant dated 8 April 2017;

   ·Copy applicant’s pay slips as evidence of employment at the sponsoring business and the remuneration received;

   ·Updated work reference letter dated 17 April 2017 provided by Mr Empreizoglou, stating that the applicant has been working for the sponsoring business since August 2015 and attesting to his skills and ability to undertake the tasks of the nominated position; and

   ·Bundle of photographs depicting the pastry products made on the premises; employees of the sponsoring business and the location of the sponsoring business;

9. Under subsection 360(2)(a) of the Act the tribunal considered that it should decide the review in the applicants favour on the basis of the material before it. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4)(da).

    Skills, qualification and employment background of the applicant

11. 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. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Pastry Cook (ANZSCO 351112.

12. The tribunal accepts that the determination of the application requires more than a narrow matching process between an applicant’s tasks and an ANZSCO occupational definition. Instead, it is preferable to approach the matter by ascertaining the applicant’s skills and how these skills are to be applied in the nominated occupation: Joshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1116.

13. The tribunal has had careful regard to the tasks and duties and the indicative skill level for the occupation of a Pastry Cook as described in the ANZSCO, and the tribunal regards these ANZSCO indications as important considerations. The entry requirement for the nominated occupation of a Pastry Cook is AQF Certificate III including at least two years of on the job training or AQF Certificate IV (ANZSCO Skill Level 3).

14. The applicant has failed to provide to the Department satisfactory documentary evidence relevant to his education and work experience. With his review application, the applicant presented to the tribunal evidence of completing a Certificate IV in Patisserie awarded to the first named applicant on 1 March 2017 by Future Academy from Australia through the recognition of prior learning process (RPL).

15. I considered the reference letter dated 17 April 2017, provided to the tribunal by Mr Empreizoglou, and note that the first named applicant has been working for the sponsoring business since August 2015. Mr Empreizoglou attested to the first named applicant’s skills and ability to perform the tasks for the nominated occupation.

16. With his visa application, the first named applicant submitted copy of a Certificate III in Hospitality (patisserie) awarded to the first named applicant on 21 December 2012 by Academia International. In addition the applicant submitted additional documentary evidence relevant to his work experience in Australia. This evidence was not before the delegate at the time of primary decision.

17. Based on the evidence before it, the tribunal is satisfied that the first named applicant has the skills and employment background necessary to perform the tasks of the nominated occupation, and thus finds that he satisfies cl.457.223(4)(da) at the time of the tribunal’s decision.

18. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

19. The tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223 (4)(da) of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member

    
    

    ATTACHMENT - CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.