Brar (Migration)

[2019] AATA 4181

Brar (Migration) [2019] AATA 4181 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Amandeep Kaur Brar
Mr Manpreet Singh Bhullar
Miss Shrevin Kaur Bhullar

CASE NUMBER:  1834337

HOME AFFAIRS REFERENCE(S):           BCC2018/4062317

MEMBER:Amanda Mendes Da Costa

DATE:4 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not 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 04 September 2019 at 9:14am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – ceased employment with sponsor – original café no longer operating – continue employment with sponsor at a new business – unpaid maternity leave – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 November 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) 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 first named applicant had not complied with a condition of her visa. The visas of the second and third named applicants were cancelled under s.140. The issue in the present case is whether the ground for cancellation of the first named applicant’s visa 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 first named 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 first named 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 30 April 2019 to give evidence and present arguments. The hearing was held as a combined hearing with the Subclass 186 visa application case of the first named applicant and the related nomination refusal case for Ms Lucy Luu.  The Tribunal also received oral evidence from Ms Luu, the first named applicant’s employer.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the first named applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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 condition 8107 attached to the applicant’s visa. This condition requires if the visa holder ceases employment – the period during which the holder ceases employment must not exceed 90 consecutive days. The delegate found that in June 2018, Departmental checks showed that Ms Luu’s café business in Collingwood (where the first named applicant had been employed) was no longer operating. The delegate was not satisfied that the first named applicant had been employed in her nominated position with her employer since December 2016 and found that the first named applicant had not been employed in her employment with Ms Luu for a period exceeding 90 consecutive days.

9. The first named applicant and Ms Luu told the Tribunal that the first named applicant commenced full time employment with Ms Luu in April-May 2015 as a full-time cook.  She was originally employed at the Quint café in Abbotsford and when that café ceased trading in February 2018, the first named applicant continued her employment with the applicant at a new business, the Cooks Corner in Kallista.  Ms Luu said that she employed the first named applicant on a continuous basis from April-May 2015 until the date of hearing.

10. Ms Luu told the Tribunal that she previously operated the Quint Café, which was a successful breakfast and lunch café in Abbotsford.  When the property owner decided to substantially increase the rent for the premises, Ms Luu decided to close the café and open a new business in Kallista.  Although this business did not open until September 2018, the first named applicant continued to be employed by Ms Luu in the role of Cook, assisting the applicant with all of the kitchen preparations for the opening of the new business.  This included:

    ·menu research and planning including visits to competing business in the same area;

    ·advertising for kitchen staff;

    ·interviewing and advising regarding the hiring of kitchen staff;

    ·training of staff;

    ·kitchen employee inductions;

    ·ensuring the kitchen complied with health standards and that the café obtained the requisite food safety permit;

    ·ordering of all kitchen equipment;

    ·organising of the kitchen;

11. In February 2019, the first named applicant went on unpaid leave prior to giving birth to her son on 29 March 2019.  The first named applicant and Ms Luu told the Tribunal that following her maternity leave, she would return to her duties in the employer’s business in June 2019.

12. Ms Luu provided the Tribunal with Financial Reports for the Quint Café for the years ended 30 June 2016 and 2017. These reports show that the total income for the business for the years 2016 and 2017 was sufficient to pay the salary of the first named applicant and other employees of the business.  The Tribunal accepts that the closure of the Quint Café in February 2018 is likely to account for the decrease in total income and wages and salaries from 2016 to 2017.

13. Ms Luu also provided the Tribunal with various rental and utilities accounts evidencing payments for the Quint Café premises.  The Tribunal notes that Ms Luu previously provided a leasing agreement for the premises at 2 Kallista-Emerald Road, Kallista to the Department.

14. The Tribunal was further provided with the Business Activity Statements for Ms Luu’s business for the periods July – September 2018; and October- December 2018;  bank statements for her Commonwealth Bank Smart Access account for the period from 15 May 2015 to 20 October 2018; account records from the Australian Taxation Office (ATO); PAYG payment summaries for the years 2015, 2016 and 2017; Notices of Assessment issued by ATO for the years 2015, 2016 and 2017; photographs of the nominee working in the applicant’s business and a Skill Assessment for the first named applicant.

15. The Tribunal is satisfied that the documentary and oral evidence establishes that Ms Luu was operating a business (the Quint Café in Abbotsford) and subsequently opened another business (the Cooks Corner) in Kallista, which she is currently operating.

16. The Tribunal is further satisfied that the PAYG summaries provided by the applicant show that her earnings for the years 2015 to 2018 are commensurate with her salary as a Cook in the applicant’s business.  The Tribunal further notes that banks account records contain regular deposits from Ms Luu which are also commensurate with salary payments to the applicant.

17. Based on the evidence before it, the Tribunal is satisfied that the applicant has been employed continuously by Ms Luu since 2015 and therefore has complied with Condition 8107 attached to her visa.

18. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

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

    Amanda Mendes Da Costa
    Member