Case Study

Administrative Appeals Tribunal - Visa Refusals

Migration Review Tribunal

About Our Client

A popular restaurant and bar in Geelong (Victoria), employing a mix of both domestic and foreign labour.
Agents with Experience in Cancellations / Refusals / Appeals

The Problem

This case involves a cook that our client was seeking to sponsor through the skilled migration stream. The visa applicant was identified as an ideal candidate for their restaurant kitchen while she was working part time as a student studying a certificate IV in commercial cookery.

After being approached for assistance we advised that the most appropriate migration option would be under the Regional Sponsored Migration Scheme (subclass 187 visa).

All the information necessary for the nomination and visa application was collected from both the sponsor and candidate. The nominated position of cook was accepted by the Department of Immigration (DIBP), however they refused the visa application on the basis that the candidate did not have the qualifications and experience for a cook as defined under the ANZSCO list.

The refusal came as a surprise to our migration team and client alike, as the candidate clearly possessed the requisite qualification specified in ANZSCO. The basis of the refusal was that the DIBP had applied its own policy document to interpret the regulations as requiring both a certificate IV AND 2 years of on the job training or post qualification experience.

The Solution

In our professional opinion, the DIPB case officer had clearly made an incorrect interpretation of the legal requirements for the visa approval. Therefore we took the matter further and challenged the decision through the Administrative Appeals Tribunal (AAT).

Our challenge was based on a fundamental principle of statutory interpretation. A decision for visa approval should be made in the first instance by application of the Migration Act and Migration Regulations. Government policy may be used to guide interpretation, however, the DIBP cannot introduce supplementary requirements for occupations on the ANZSCO list.

The AAT decided in our client’s favour and held that the visa applicant only needed to show that they possessed a certificate IV in a field relevant to the position of cook. The decision was remitted to the DIPB for a new decision to be made. The subsequent decision resulted in our client’s candidate having their visa approved.

Despite the delay to the sponsorship process, TSS was able to secure employment for a skilled employee that was highly valued by our client. Acknowledging the error, the DIBP has also since revised its policy guide on this issue.

"We have developed a great partnership with TSS and their dedication to servicing the ALH business is evident in all aspects. We appreciate their attention to detail and approach to bringing us the best personnel and service"

Trevor Smith, National Food Manager ALH Group