Kaur (Migration)

[2021] AATA 2394

Kaur (Migration) [2021] AATA 2394 (28 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jasminder Kaur

CASE NUMBER:  2015162

HOME AFFAIRS REFERENCE(S):          BCC2020/1894174

MEMBER:Vanessa Plain

DATE:28 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2021 at 04:35pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – work in other than most recently approved nominated occupation – site inspections – restaurant manager doing tasks of food and beverage attendant – inspection report based on short observation on quiet day and interviews with unidentified other employees – documentary and oral evidence from applicant and business owner – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 October 2020 made by a delegate of the Minister for Home Affairs to cancel 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 breached condition 8107(3)(a)(i) on the basis that the applicant did not work only in the occupation listed in the most recently approved nomination. 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. The applicant appeared before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Rumoro, the owner of Ru Motel.

4. The applicant was represented in relation to the review by her registered migration agent.

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

   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 condition 8107 attached to the applicant’s visa.

8. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(a)(i) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:

   “8107

   (3) If the visa is, or the last substantive visa held by the applicant was, a subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

   (a)the holder:

   (i)   must work only in the occupation listed in the most recently approved nomination for the holder; and

9. The Delegate’s decision record of 9 October 2020 provides as follows:

   “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is RUMOTEL PTY LTD (the sponsor), who applied to nominate her to work at 686 Burwood Road, Hawthorn East, Victoria, in the occupation of Cafe or Restaurant Manager (ANZSCO 141111). The sponsor certified that the tasks or duties of the nominated position included a significant majority of the tasks of the nominated occupation as specified in ANZSCO or the legislative instrument. Specifically, the sponsor certified that the tasks or duties of her position would include:

    Liaising with Chefs about menu items and assisting in menu design

    Preparing staff rosters for kitchen and floor staff

    Being responsible for hiring and firing staff

    Overseeing customer liaison and attending to customer issues

    Overseeing café budget and maintaining sales figures

    Overseeing ordering of stock and supplies

    Storing food in temperature controlled facilities

    Preparing food to meet special dietary requirements

    Planning menus and estimating food requirements

    Performing any other duty directed by the employer

   The tasks or duties associated with the occupation of Cafe or Restaurant Manager involves organising and controlling the operations of cafes, restaurants and related establishments to provide dining and catering services and are specified in ANZSCO UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS. They include:

    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

    may take reservations, greet guests and assist in taking orders

   On 04 February 2020, a delegated officer of the Department attended the sponsor’ s worksite, interviewed employees and reviewed employment records. The delegate’s report stated the following:

   “Jasminder Kaur failed to provide any evidence of her role to officers. When asked to show officers evidence of customer correspondence via email, Jasminder Kaur was unable to show any emails. Jasminder Kaur was asked by officers about upcoming functions to which she replied that there was a function on in two days for 300 people, for a 50th birthday. When asked to see evidence of this function, Jasminder Kaur opened the function booking planner to the date of the function and there was no record of a function. Officers asked to see invoices or receipts for function deposits and/or contracts to which Jasminder Kaur stated that they did not provide receipts or have contracts. When asked how the kitchen prepares for the upcoming function, Jasminder Kaur advised planning paperwork existed but that it was held by the Director. Officers requested Jasminder Kaur demonstrate this paperwork however she stated that the paperwork had been misplaced.

   Officers interviewed a person employed as a cook who stated they had no knowledge of any upcoming function. This employee stated that functions were a maximum of approximately 80 people and that kitchen staff would have knowledge of the function with between one to four weeks’ notice. The employee further stated that it was Jo Rumoro, not Jasminder Kaur, who organised function menus and delegates function staff.

   Officers interviewed a person employed as a Chef, who advised officers that Jasminder Kaur usually takes and serves customers’ orders.  Officers did not witness any evidence in the restaurant that supported that Jasminder Kaur works in her nominated occupation of Restaurant Manager. No wait staff were seen by officers and Jasminder Kaur confirmed no staff were rostered on as it was a quiet day and she serves food when required. Of the three occasions that officers conducted site visits to the sponsor, Jasminder Kaur was not at work on two occasions and appeared to be rearranging tables and the sole server on the third occasion.

10. Based on the above mentioned information, the delegate formed the view that it appeared that a significant majority of the tasks conducted by the applicant are inconsistent with those specified for the nominated occupation of Cafe or Restaurant Manager. It appeared to the delegate that a significant majority of the applicant’s tasks were more consistent with the lower skilled occupation of Food and Beverage Attendant (Waiter).

11. This indicated that the applicant had not complied with subclause (3)(a)(i) of condition 8107 attached to her visa because it appeared that she had not been working in the occupation listed in her most recently approved nomination.

12. A Notice of Intention to Consider Cancellation dated 24 July 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant responded in writing on 29 July 2020.  The applicant’s response makes it plain that she does not concede that she has breached condition 8107(3)(a)(i) of her visa and she further provided extensive reasons why her visa should not be cancelled. 

13. On 10 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 28 June 2021.  The invitation directed the applicant to provide documents to the Tribunal that the applicant proposed to rely upon in support of her case.  The Tribunal has read and considered the documents submitted by the applicant.  The documents are as follows:

    ·The decision record

    ·Payslips

    ·Employee rosters

    ·Employment contract

    ·Bank statements

    ·Market salary report

    ·Organizational chart

    ·PAYG summary 2017 – 2019

    ·Photos of functions

    ·Skills assessment

    ·Written legal submissions

    ·Emails between the applicant and her former employer

14. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their visa was subject, prescribes in 8107(3)(a)(i).

15. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

16. Given the extensive nature of the applicant’s response to the NOICC, Tribunal asked the applicant to describe her role at Ru Motel by reference to the ANZCO criteria (141111) applicable to occupations as a café/restaurant manager.

17. The applicant gave the following concise and extensive evidence:

    (a)She worked for Ru Motel (the Business) as the restaurant manager for approximately 3 years before her visa was cancelled.

    (b)In February 2020, when the department officers visited Ru Motel, she was working by herself.   She is the only one who organises, manages and supervises all functions at the motel and if she does not do so, those functions are carried out by Mr Rumoro, the owner of the hotel.  

    (c)The applicant does not email clients, she speaks with them over the telephone who conducts face to face meetings. 

    (d)Planned menus in consultations with the chefs.  It is the chefs who prepare the menus based upon the requirements of a particular function.  The applicant informed the chef of the requirements of a particular function, the chef prepares the menu and then provides it to the mangers, who then distribute it to the wait staff. 

    (e)Planning and organising special functions.  The applicant is responsible for booking, managing and supervising functions.  Given the nature of the hotel (there is a bottle shop, gaming section, restaurant and function rooms) functions vary from meetings, birthday celebrations through to wakes.  Sometimes, particularly the wakes, the function is booked at the very last minute.  The applicant prices the function and ensures the stock and alcohol levels are adequate. It is not necessarily the case that a booking attracts an immediate deposit, it depends on the nature of the booking, some functions (wakes) have a very quick turnaround time.

    (f)Arranging for the purchasing and pricing of goods according to budget.  She stated that she was in charge of that.  She checked inventory required for each function which includes food and alcohol products.

    (g)Responsible for maintaining stock levels and financial transactions.  She checks inventory daily and liaises with suppliers to co-ordinate orders depending upon function requirements.       

    (h)Ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance.  She arranges cleaning services and updates staff on health policies.    

    (i)Conferring with customers to assess their satisfaction with meals and service.  She is the primary point of contact for clients who book functions and seeks their feedback as to the overall client experience at the conclusion of a function. 

    (j)Selecting, training, and supervising waiting and kitchen staff.  She is responsible for the selection, recruitment and training of all wait staff.  She prepares and allocates the roster each week.            

    (k)May take reservations, greet guests and assist in taking orders.  She greets guests at the start of functions and takes function reservations. 

    (l)When the department officers came to the hotel, the applicant spoke to them once for a brief period of time, perhaps 15 to 20 minutes.  The particular day that the officers attended was very quiet, they came three times to visit the hotel, but she was there only once, the other times she was on authorised leave.  It is possible that the officers saw her arranging tables, which may have appeared to be a job for the wait staff, but if the hotel is quiet, she helps out with this sort of thing. 

    (m)The officer has misunderstood and unfairly characterised her role based on a very small observation of her duties on a quiet day.  The day the officer attended and spoke with the applicant, she was assisting with all manner of tasks in hotel because it was very quiet and on that basis, she believes that the officer received the wrong impression.  She also becomes very nervous talking with government officials, she has never breached a visa condition and feels that she would not fairly represented and she did not know of the other employees referred to in the delegate’s decision record.      

18. The Tribunal heard evidence from Mr Jo Rumoro, the owner of Ru Motel.  Mr Rumoro gave the following evidence: 

    (a)He has been the owner of the Ru Motel for 21 years.  The applicant is key to his business, he employs 20-30 staff on average at any given time and particularly, there are several managers who each oversee the gaming, bottle stop, function and restaurant and sports bar areas of the hotel. 

    (b)The applicant manages the function area and is so critical to the operational side of the business, that she has a master key to the business and has enabled Mr Rumoro to step back in his day to day operational role in the business.  

    (c)Function menus are designed by the head chef in the business.  A restaurant manager doesn’t design the menu, the chef prepares the menus and communicates it to mangers.  Then it goes down the line to wait staff.  It is his business, of course, to have a clear understanding about function menus, he keeps an eye on everything.  We never have two functions that are identical. 

    (d)He has listened carefully to the applicant’s evidence and agree with her characterisation of her role.  He stated that he does not need to pay a managerial salary of $1,100 per week to the applicant if her duties are merely wait staff duties.  He pays his wait staff approximately $300 - $400 per week depending on their hours worked. 

    (e)He has read the relevant ANZSCO description for restaurant manger and in his view, this description is more applicable to a function manager in a 5 star hotel, than a gaming venue that offers function facilities. 

    (f)When the Border Force officer attended the hotel, they were putting together a wake at the last minute, this is the nature of these functions.  Functions are also cancelled at the last minute of not confirmed in the system if a deposit hasn’t paid, this does not mean that the applicant hasn’t liaised with a client and taken a preliminary booking.   

    (g)If 100 people come in for a function, the applicant organises the setting of the room, ensures there is sufficient stock and beverage and she arranges the casual staff roster.  She’s been dealt a harsh decision in his view.  She’s spent a lot of time here in the business and when he had to deal with local kids who were stealing from the business, the applicant was integral to resolving that issue for him. 

    (h)He also informed the Border Force officer that he has entrusted the applicant with a master key to the business and if he is not able to open the business, the responsibility falls to the applicant.  This is not a function he would entrust to someone employed as waiting staff. 

    (i)He is not aware as to who the other employees are who are referred to in the delegate’s decision record and he does not agree with their alleged characterization of the applicant’s role. 

19. The Tribunal places significant weight upon the evidence of Mr Rumoro.  There is no reason why that evidence ought not be accepted, especially in circumstances where the other employees of the business who allegedly gave an account to the officers relied upon in the decision record are unable to be identified.

20. Based upon Mr Rumoro’s extensive and concise evidence, it may be inferred from the delegate’s decision record that the officer who spoke with the applicant at the business formed an opinion and made inferences about the nature and role of the applicant’s employment, based upon a very narrow set of observations of the hotel during their brief visit and conversation with the applicant.  These inferences are outweighed by the direct evidence of the applicant and Mr Rumoro, which the Tribunal finds to be credible and reliable. 

21. The Tribunal is satisfied, based upon all the evidence before it, that the applicant was performing the duties of a restaurant manager at Ru Motel.

22. 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

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

    Vanessa Plain
    Member