1836768 (Migration)

[2019] AATA 6801

1836768 (Migration) [2019] AATA 6801 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836768

MEMBER:Amanda Mendes Da Costa

DATE:17 September 2019

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 17 September 2019 at 10:07am

CATCHWORDS
MIGRATION – cancellation – 457 (Temporary Work (Skilled)) visa – Restaurant Manager – applicant had ceased employment with the sponsor – applicant not employed in the position of Restaurant Manager – inconsistent evidence from sponsor – applicant failed to comply with condition 8107 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116,140, 348, 359
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 December 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant (the applicant)’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with subparagraph 3(a) of Condition 8107 attached to the applicant’s visa in that the delegate found that the applicant had not worked only in the position of Restaurant Manager which was the occupation listed in the most recently approved nomination for the applicant. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The other applicants’ visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at [385], [393], [400]; Tien & Ors v MIMA (1998) 89 FCR 80 at [96]. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to them.

4. The applicants appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A], the second named applicant and Mr [B], the applicant’s brother-in-law.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa, in this instance subparagraph 3(a)(i) to Condition 8107 attached to the applicant’s visa. This condition requires the visa holder to work only in the occupation listed in the most recently approved nomination for the holder. The delegate found that the applicant was also working in occupations other than that of a Café or Restaurant Manager.

8. The applicant arrived in Australia [in] November 2016 after her Subclass 457 visa was granted, for the purpose of working as a Restaurant Manager for [Business 1] (the sponsor).  Prior to her arrival in Australia, the applicant graduated with Bachelor and Master’s degrees [from] universities in India and she told the Tribunal that she had two to three years’ experience as a restaurant manager in that country.  The Tribunal notes that the applicant provided it with her skills assessment for the position of Restaurant Manager.  This assessment dated 23 August 2018 and undertaken by VETASSESS shows that on the basis of her academic qualifications and work experience with the sponsor, the applicant was qualified for the role of Café or Restaurant Manager ANZSCO 141111.

9. The applicant commenced her employment with the sponsor on 5 June 2017.  When the Tribunal asked the applicant about the reason for the delay in her commencing this employment, the applicant said that this was the sponsor’s decision and she was not given any reason for it.

10. The Australian and New Zealand Standard Classification of Occupations Dictionary (ANZSCO) describes the typical duties of a Café or Restaurant Manager (Code 141111) as including the following:

    ·planning menus in consultation with Chefs;

    ·planning and organising special functions;

    ·arranging the purchasing and pricing of goods according to budget;

    ·maintaining records of stock levels and financial transactions;

    ·ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance;

    ·conferring with customers to assess their satisfaction with meals and service;

    ·selecting, training and supervising waiting and kitchen staff; and

    ·may take reservations, greet guests and assist in taking orders. 

11. In describing her role for the sponsor, the applicant explained that she was tasked with supervising staff, taking bookings, ensuring the cleanliness of the restaurant and its facilities, attending to customer enquiries and complaints, overseeing deliveries and participating in menu planning with the chef and owners.

12. The applicant told the Tribunal that the sponsor’s restaurant, situated in [Victoria], was open for business between 6 am and 11 pm every day.  Her hours of employment were from 9 am to 5 pm and the sponsor employed two assistant managers for the remaining shifts.  The sponsor also employed another staff member who “represented” the owners and performed a management role along with the applicant.  However this staff member was not performing the role of Restaurant Manager, which was performed by the applicant throughout the course of her employment by the sponsor.  The applicant explained to the Tribunal that during the period of her employment the principal owner of the business sold a share of it to another person.  It was the new director who engaged the other staff member to oversee the operation of the business for the purpose of advising him about ways to increase the profitability of the business.

13. The applicant ceased her employment with the sponsor in June 2018.  This occurred after Australian Border Force officers conducted a sponsor monitoring audit on the sponsor in April 2018 and the applicant attended an interview with Departmental staff on 1 June 2018.   The applicant told the Tribunal that during her interview with Departmental staff, she listed the duties provided in her position description.   However, the delegate found that the applicant’s answers indicated that she was not involved in the “higher level functions” of the role of Restaurant Manager such as:

    ·planning menus in consultation with chefs;

    ·planning and organising special functions; arranging the purchasing and pricing of goods according to budget; and

    ·maintaining records of stock levels and financial transactions.

14. In her oral evidence, the first named applicant told the Tribunal that she refuted the Department’s finding that she has not been performing the “higher level functions of her role as Restaurant Manager.

15. In response to the Department’s request on 6 July 2018 regarding whether the applicant had been undertaking ‘higher levels’ of the role of Restaurant Manager, the sponsor advised that during her employment, the applicant had underperformed in the role of Restaurant Manager and did not appear to have the skills associated with her qualification.

16. On 23 November 2018 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa.  On 7 December 2018 the applicant provided the Department with a response to the NOICC in which she claimed that she had genuinely worked in the position of Restaurant Manager and had performed all the responsibilities as required in her nomination.

17. The Tribunal heard evidence from Mr [B] who is the applicant’s brother-in-law.  He told the Tribunal that he was a regular customer of the restaurant where the applicant was employed as manager.  Mr [B] said that he observed the applicant performing the tasks of a Restaurant Manager.  He spoke to the owners of the business, who explained to him that their business was struggling.  As a result, they had introduced another employee to oversee the business on their behalf, to assist them in making changes with the aim of improving the profitability of the business.

18. Mr [A] (the second named applicant) told the Tribunal that from his discussions with his wife about her employment with [Business 1], he was satisfied that she had been employed as a Restaurant Manager throughout her employment with the company.  He described his wife as a hard-working and diligent employee. 

19. In addition to the applicant’s skills assessment, the documents provided to the Tribunal include the following:

    ·employment contract between the sponsor and the applicant, dated 14 December 2015 for the position of Restaurant Manager ANZSCO 141111;

    ·bank statements for the applicant’s account for the period 28 July 2017 to January 2018;

    ·statement from the applicant’s superannuation fund;

    ·PAYG payment summary for the applicant for the year ended 20 June 2018; and

    ·letter from [Ms C] dated 15 April 2019.

20. Following the hearing the Tribunal received a copy of a Notice of Intention to Take Action (NOITA) dated 22 June 2018, which was sent to [Business 1] by the Department and which contains the following information:

    ·On 3 May 2018, Australian Border Force (ABF) officers visited [Business 1] trading as [Café 1].  The officers were informed that Business Director [Ms C] was working from the other business site trading as [Café 2].  This business was later identified by Departmental officers as an associated entity of [Business 1] known as [Business 2].  The officers proceeded to address and interview [Mr D], Business Director of [Business 2] who joined the interview part way through.

    ·[Ms C] provided information that [the applicant] is a Restaurant Manager and this involves training staff, seating customers and waiting on tables.  [Ms C] stated that [Mr D] knows more about the front of house side to the business.  When discussing the rosters, [Mr D] stated that [Ms E] is the Front of House Manager and she does the front of house rosters.

    ·On 1 June 2018, ABF officers interviewed [Mr F] (nominated as a Cook) and asked him questions about the front of house staff.  He stated that [Ms E] is the Manager and [Mr G] and [Ms H] are supervisors.  He stated that [Ms E] manages the tills, bars, running food, paperwork and rosters and if there are complaints she discusses them with the kitchen.  She has a small office but also uses the laptop near the till to make changes to the menu.  [Mr F] stated he was unsure of [the applicant]’s role but had seen her working on the floor.

    ·On 1 June 2018, ABF officers interviewed sponsored person [Mr I] (nominated Pastry Cook) who stated the following regarding the front of house staff: that [Ms E] is the Manager, [Ms H] is the Assistant Manager who does coffee as well and [Mr G] and [the applicant] are supervisors of the wait staff.

    ·When asked about the hierarchy between the staff she ranked them from most senior as follows: [Ms E], [Ms H], [the applicant] and then [Mr G].     

21. Pursuant to s.359A of the Act, on 23 May 2019 the Tribunal wrote to the applicants inviting their comments on or response to the above information received from the Department.

22. The Tribunal advised the applicants that the consequences of the Tribunal relying on this information was that the Tribunal may find that as the applicant did not work only in the occupation listed in the most recently approved nomination for her (i.e. Restaurant Manager) she did not comply with subparagraph 3(a)(i) of Condition 8107 attached to her visa and the ground for the cancellation of the applicant’s visa may be made out and her visa cancelled under s.116(1)(b) of the Act.

23. The Tribunal further advised the applicants that as the cancellation of the applicant’s visa was not mandatory under s.116(1)(b); if the information was relied on the Tribunal may find that the applicant was not truthful and made false claims of having worked full time as a Restaurant Manager between June 2017 and July 2018. The Tribunal may therefore find that the discretionary considerations the Tribunal considers when deciding whether the applicant’s Subclass 457 visa should be cancelled or not, overall weigh in favour of, rather than against the ongoing cancellation of her visa.

24. A copy of the NOITA was provided to the applicants with its s.359A letter. The applicants were given until 6 June 2019 to provide their comments or response.  On that date the applicants provided documents which included the following:

    ·taxation summary for the period 2016 to 2017;

    ·the applicant’s PAYG payment summary for the year ended 30 June 2018

    ·statement from the  applicant’s superannuation fund for the period 30 June 2017 to 29 June 2018;

    ·bank statements for the applicant and second named applicants for the period 29 May 2017 to 28 July 2017 and 29 November 2017 to 29 January 2018;

    ·copy of the applicant’s [Master’s Degree] awarded by [named] University, India in 2015;

    ·employment contract between [Business 1] and the  applicant, dated 14 December 2015;

    ·Skills assessment (for the occupation of Café or Restaurant Manager ANZSCO 141111) for the  applicant dated 23 August 2018;

    ·letter by [Ms C], [Business 1], dated 15 April 2019; and

    ·ASIC Current and Historical Company Extracts for [Business 1] and [Business 2] dated 6 June 2019.  

25. The Tribunal notes that in her letter dated 15 April 2019, Ms [C] states:

    This is to confirm that [the applicant], DOB [date] of [address deleted] has worked (38hrs a week) as a Café or Restaurant Manager with [Café 1] on a 457 Visa from 5^th June 2017 til 8^th July 2018 and has performed her responsibilities according to the requirement.  [The applicant] was competent in her job duties.

26. The applicants also provided the Tribunal with written submissions, which may be summarised as follows:

    ·As the sole director and owner of [Business 1] since the inception of the company in [August] 2014, [Ms C] was better informed than [Mr D] about the applicant’s duties in the business.

    ·The Tribunal should disregard the comments made by Mr [D] to Departmental staff about the applicant’s role in the business, given that he was not associated with the business in any legal capacity in the past or present as confirmed by the company extracts provided to the Tribunal;

    ·During the period of the applicant’s employment Ms [C] was responsible for overseeing the day to day operations of the business.

    ·Due to her involvement in other business interests, Ms [C] appointed [Ms E] to fill her role at the restaurant and assist her to manage all the departments that included front of house, back of house and bar.

    ·It is sometimes difficult for an outsider or internal staff to differentiate between the actual responsibilities held by individuals in the business.

27. The Tribunal accepts that the applicant was employed by the sponsor during the period June 2017 to June 2018.  The Tribunal is further satisfied that although she was initially employed in the role of Restaurant Manager, she did not remain in that position for the entirety of her period of employment and was moved into another position within the business and the role of Restaurant Manager was then performed by an employee named [Ms E].

28. In that respect, the Tribunal does not accept the evidence that she was employed in the position of Restaurant Manager, throughout the entirety of her employment with [Business 1]. 

29. The Tribunal notes that the company extract for [Business 2] shows that [Mr D] was appointed a director of the company on 30 June 2017 and as Secretary of the company on 3 September 2018.  The company extract shows that [Ms C] was previously a director and secretary of the company but ceased in those roles on 3 August 2018.

30. The company extract for [Business 1] shows that [Ms C] was appointed a director and secretary of the company on 13 August 2014.

31. The Tribunal accepts the information in the NOITA to the effect that [Business 2] and [Business 1] were related entities and Mr [D] had a detailed knowledge of the staffing arrangements for [Café 1].   

32. The Tribunal notes that in her letter Ms [C] states that the applicant was employed by [Business 1] as a Café and Restaurant Manager from 5 June 2017 to 8 July 2018 and was competent in performing her duties. This is inconsistent with the information provided by Mr [F] and Mr [I] in their interviews with Departmental staff on 3 May 2018.  The Tribunal accepts their evidence (rather than that of Ms [C]) in regard to the applicant’s role within the nominator’s business.  The Tribunal considers that their evidence regarding the applicant’s duties was credible and consistent with the evidence regarding the role of the employee [Ms E] who was actually performing the duties of Restaurant Manager. In reaching these findings the Tribunal has had regard to the applicant’s submissions that [Ms C] was better informed than Mr [D] about the applicant’s duties in the business and that it was sometimes difficult for internal staff to differentiate between the responsibilities performed by other staff.

33. The Tribunal has concerns about the reliability of Ms [C]’s evidence regarding the first named applicant’s employment given the inconsistencies in the information she has provided about the first named applicant’s role within the business.  The Tribunal does not find Ms [C] to be a credible or consistent witness given her statement to the Department on 6 July 2018 about the first named applicant’s performance of her duties and the comments made by her in the letter dated 15 April 2019.  Accordingly, the Tribunal attaches little weight to the evidence of Ms [C].

34. However, as previously stated, the Tribunal accepts the information in the NOITA regarding Mr [D] and finds that as a director of an associated entity to [Business 1], Mr [D] had an accurate knowledge of the staffing arrangements for both [Business 2] and [Business 1].  It also accepts that [Ms C] told ABF Officers that Mr [D]’s knowledge of the operation of the staffing arrangements for [Business 1] was greater than her own knowledge.

35. The Tribunal has taken into account the evidence of [Mr B] and the second named applicant. Although it accepts that Mr [B] was a customer of the restaurant where the first named applicant was employed, it does not consider that his observations of the first named applicant working there necessarily indicate that she was working in the role of Restaurant Manager instead of another front of house position.

1. The Tribunal also considers that the second named applicant’s knowledge of his wife’s employment duties based primarily on her account of her employment and accordingly the Tribunal attaches limited weight to the second named applicant’s evidence about his wife’s role at [Café 1].

2. Whilst the Tribunal accepts that Mr [B] visited [Café 1] when the first named applicant was employed there, it considers that his observations of her duties could also be consistent with the first named applicant performing front of house duties but not those of the Restaurant Manager.

3. The Tribunal has also taken into account the first named applicant’s Skills assessment and accepts that she has a requisite qualification for the role of Café or Restaurant Manager. It has also considered the bank statements, employment agreement, superannuation statement and PAYG payment summary.  As previously stated, the Tribunal accepts that the first named applicant was initially engaged as a Restaurant Manager and that she continued to be employed by the sponsor in a front of house job, although it is not satisfied that the first named applicant worked only in the nominated position of Restaurant Manager.

4. For the above reasons, the Tribunal is satisfied that as the applicant did not work only in the position of Restaurant Manager which was the occupation listed in the most recently approved nomination for the applicant, the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

5. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

6. The applicant was granted a Subclass 457 visa for the purpose of filling a skill shortage and work in Australia for an approved sponsor in a skilled occupation for which she was nominated to work and which could not be filled from within the Australian workforce.

7. The standard business sponsor who nominated the applicant in the most recently approved nomination for the visa was [Business 1] (the sponsor) whose nomination was approved on 30 April 2016 for her to work in the occupation of Restaurant Manager ANZSCO 141111 at a restaurant [operated] by the sponsor.

8. The applicant’s purpose to stay in Australia was to work as a Restaurant Manager on a temporary basis.  This employment is no longer open to the applicant and the applicant told the Tribunal that she was not currently employed and was caring for her young daughter on a full-time basis.  The applicant said that if her visa was not cancelled she planned to obtain further employment in Australia but she provided no evidence of any attempts made by her to obtain further employment.

9. Accordingly the Tribunal finds that as the first named applicant is no longer working in Australia, her original purpose for travelling to Australia, no longer exits.

10. The Tribunal finds that these factors weigh in favour of cancellation.

    The extent of compliance with visa conditions

11. Apart from her non-compliance with Condition 8107, there is no evidence that the applicant has been non-compliant with the other conditions of her visa and the Tribunal notes that she participated in an interview with Departmental staff and responded in a timely manner to the NOITA.

12. The Tribunal finds that this consideration, on balance, weighs against cancellation.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

13. The applicant and her husband have not made any plans or arrangements for their return to India if their visas are cancelled.  The applicant is not currently employed and told the Tribunal that she had no intention of seeking further employment for the foreseeable future as she intended to concentrate on caring for the couple’s [daughter].

14. The applicant’s husband is currently employed on a full time basis in a hotel.  Mr [A]told the Tribunal that although he had no formal qualifications in hospitality he would attempt to gain employment in that industry if he returned to live in India.

15. The applicant and her husband told the Tribunal that their daughter (the third named applicant) who is currently attending kindergarten would find it difficult to adjust to the Indian education system if the family returned to India.  They explained that as children in India commence their schooling at three years of age; their daughter would be behind in her studies if she now commenced schooling In India.  This would cause her social and educational difficulties.

16. The Tribunal accepts that the third named applicant would experience some difficulties in adjusting to a different educational system in India and a new school.

17. The applicant further told the Tribunal that a return to India would cause the family financial hardship as they would be required to pay the cost of relocation including the initial lack of income whilst she and her husband sought employment.  They would also suffer financial hardship due to lower wages in India. The Tribunal accepts this evidence.

18. These considerations, on balance, weigh against cancellation.

    Circumstances in which the ground of cancellation arose

19. The Tribunal is satisfied on the basis of the evidence obtained by Departmental staff in their interviews with staff employed by [Business 1] that whilst the applicant performed some of the tasks associated with the role of Café or Restaurant Manager, at the time her visa was cancelled she was performing the tasks of a Front of House Supervisor.  Accordingly the Tribunal finds that during her employment with the nominator, the applicant was not working only in her nominated occupation.   

20. The Tribunal acknowledges that Mr [B] observed the nominee performing some of the duties of a Café or Restaurant Manager when he was a customer in the company’s restaurant.  However, the Tribunal is satisfied that these observations are not inconsistent with the applicant performing the duties of a Front of House Supervisor.

21. The Tribunal also notes that the employment agreement between [Business 1], the  applicant’s skills assessment and her degree [show] that the applicant was initially employed as Café or Restaurant Manager.  However, the Tribunal accepts the information obtained by the staff of [Business 1] that at the time of their interviews with Departmental staff, the applicant, although employed by the [Business 1], was not performing the role of Café or Restaurant Manager.

22. This consideration weighs in favour of cancellation.

    Past and present behaviour of the visa holder towards the Department

23. The Tribunal is satisfied that the applicant has been co-operative in her dealings with the Department.

24. This consideration weighs against cancellation.

    Whether there would be consequential cancellations under s.140

25. The primary decision record indicates that at the time of the primary decision, the applicant’s husband and daughter held Subclass 457 visas as members of the family unit of the applicant.  If the first named applicant’s visa is cancelled, the visa of the second and third named applicants would be subject to consequential cancellation under s.140 of the Act.

26. These considerations weigh against cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

27. If the applicant’s visa is cancelled and unless she is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that she will be detained indefinitely because as an Indian citizen she will be able to return to India. The Tribunal acknowledges that unless the applicant is granted another visa, she may be subject to possible removal from Australia and she may be subject to an exclusion period in relation to some future visa applications. Section 48 of the Act prevents a non-citizen who held a visa that was cancelled under s.116 from applying for any visa not prescribed for the purposes of s.48 while in the migration zone.

28. These considerations, on balance, weigh against cancellation.

    Whether any international obligations, including non-refoulement and the best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. The Tribunal is satisfied that there are no obligations including non-refoulement which would be breached as a result of cancellation and accordingly this consideration is neutral.

30. The Tribunal is satisfied that given the circumstances of the third named applicant, Australia’s international obligations regarding the best interests of children as a primary consideration is a factor which weighs against cancellation.

    Finding

31. The Tribunal acknowledges that the first named applicant may experience hardship, including financial and emotional hardship if the visa is cancelled.  The Tribunal also accepts that the applicant has been co-operative with the Department.  While these circumstances weigh in favour of the first named applicant the Tribunal has given greater weight to the purpose of the Subclass 457 visa and the fact that the first named applicant has not secured another nomination since ceasing employment with the sponsor.  

32. Considering the circumstances as a whole and particularly the fact that the applicant is no longer employed in the nominated occupation of Café or Restaurant Manager, the Tribunal considers that the visa should be cancelled.

    Decision

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

34. The Tribunal has no jurisdiction with respect to the other applicants.

    Amanda Mendes Da Costa
    Member