Kaur (Migration)

[2019] AATA 453

Kaur (Migration) [2019] AATA 453 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramandeep Kaur
Mr Satish Kumar
Mr Mohit Joshi
Miss Ria Joshi

CASE NUMBER:  1707212

HOME AFFAIRS REFERENCE(S):           BCC2017/678151

MEMBER:C. Packer

DATE:7 February 2019

PLACE OF DECISION:  Melbourne

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 07 February 2019 at 6:24pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – position not genuine – occupation of Café and Restaurant Manager – fast food/take away service with no dining facilities – full range of duties – no supervision of waiting staff – working at other locations – consequences of cancellation for family – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, Schedule 2 cls 457.223; 2.12, 2.43

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
Wan v Minister for Immigration & Multicultural Affairs, Australia: FFC, 18 May 2001          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant was granted the Subclass 457 visa on 20 November 2013 on the basis of an approved nomination of Café or Restaurant Manager concerning Yumyum Café & Bakery Pty Ltd. The position was to be located at a café trading as Bakers Central Café & Bakery in South Melbourne Central, a shopping mall in South Melbourne.

3. On 2 February 2017 the Department conducted a site visit to the store. 

4. On 7 March 2017 a Notice of Intention to Consider Cancellation (NOICC) was forwarded to the applicant, advising of intention to cancel the applicant’s visa on the basis that a prescribed ground for cancelling the visa applied, that is the position associated with the nominated occupation is not genuine.

5. On 15 March 2017 the applicant and representatives responded to the NOICC.

6. On 31 March 2017 the visa was cancelled under s.116(1)(g) prescribed ground r2.43(1)(kb)(iii) on the basis that the position associated with the nominated occupation is not genuine, and the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The applicant provided a copy of the delegate’s decision record with the application for review.

7. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

8. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision 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.

9. The applicants appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Thang Le (one of the business owners). The applicants were represented in relation to the review by their registered migration agent.

10. 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

11. 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)(g). 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?

    s.116(1)(g) - prescribed ground

12. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(kb)(iii)) is relevant. Regulation 2.43(1)(kb) stated:

    (kb)  in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the applicant met the requirements of subregulation 457.223(4) - that, despite the grant of the visa, the Minister is satisfied that:

    (i)  the holder did not have a genuine intention to perform the occupation mentioned in paragraph 457.223(4)(d) at the time of grant of the visa; or

    (ii)  the holder has ceased to have a genuine intention to perform that occupation; or 

    (iii)  the position associated with the nominated occupation is not genuine;

13. The nominating business made a business nomination on 6 September 2013 for the nominated occupation of Café and Restaurant Manager ANZSCO 141111. The position to be filled was at Bakers Central Café & Bakery located at Shop G22, 111 Cecil Street, South Melbourne Central.

14. At the time of the nomination the relevant Instrument was IMMI 13/066, in force from 1 July 2013 to 30 June 2014. This Instrument identified the occupation of Café or Restaurant Manager 141111. The occupation description was to “Organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.” The occupation tasks were:

    • 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

15. As well, in IMMI 13/066 the occupation had a caveat:

    *** indicates that for a nomination or visa application for a Subclass 457 visa or a Subclass 186 visa, the occupation excludes positions in Fast Food or Takeaway Food Service

16. An issue is therefore whether the store at South Melbourne Central had been a Fast Food or Takeaway Food Service such that the position there was excluded.

17. The NOICC letter of 7 March 2017 showed that the Department conducted a site visit on 2 February 2017 at South Melbourne Central, and the officers concluded “the store is a fast food/take away service. Customers order and pay for food at the counter prior to receiving it” and there was an “absence of dining facilities meant for the exclusive use of” the store.

18. The submission of 15 March 2017 responded to the NOICC letter and discussed the store at South Melbourne Central. Key points are:

    • The applicant started as a café & restaurant manager with the sponsor in October 2013.
    • The store was located at South Melbourne and “the business had enough dine-in capacity for their patterns which was adjacent to their business”. However, in October 2016 shopping mall renovations cut 3 tables which had been adjacent to the store.
    • Nonetheless, the food court management had subsequently allocated new space to the store: “The new space available to the business is in the food court which is few meters away from the business.”, as was evidenced by a letter dated 14 March 2017.
    • The employer “sometimes sent her to manage the business in Laverton”.
    • The nominator also operated a store at Laverton and in November 2016 they decided to transfer the applicant to work at that store. She was quite familiar with the business as she had worked there on “several occasions”. But the applicant was seven months pregnant and had medical difficulties and she took sick leave before the birth on 28 January 2017. She was then on maternity leave and expected to return on 11 April 2017. Because of these circumstances and the fact that the nominator was ‘super busy’ in late 2016 they had failed to notify the Department of the change of circumstances.
    • The store at Laverton is a “dine in restaurant” with dishes made on site and served to customers by a waitress.

19. The applicant provided a letter dated 14 March 2017 from Spotlight Property Group to explain that there had been a change of circumstances in the store in 2016. Key points are:

    ·An extension/renovation in the food court which concluded in October 2016 now provided more tables and chairs available to all five food tenants in the centre.

    ·This renovation involved the relocation of the Tatts tenancy that inadvertently took the space of three dining tables adjacent to the store.

    ·The renovation increased the size of the existing food court by about 22 seats with the capacity of the entire food court now at 129 seats. This seating is now available for use by the five food tenants allowing them to attend to more customers on a table service basis.

20. The delegate’s decision of 31 March 2017 (provided to the Tribunal in the review) stated in part:

    Based on a site visit conducted by Departmental officers on 2 February 2017 to YUMYUM CAFE & BAKERY PTY LTD (trading as Bakers Central Café & Bakery) at two of its business locations: Shop G22, 111 Cecil Street, South Melbourne (South Melbourne Central) and Shop 1B Triholm Avenue, Laverton, it was found that Ramandeep Kaur ‘s nominated position of Café or Restaurant Manager is not genuine based on the following:

    ·     Observations made during the site visit at Shop G22, 111 Cecil Street, South Melbourne indicate the store is a fast food/take away service where customers order and pay for their food at the counter prior to receiving it;

    ·     The absence of dining facilities meant for the exclusive use of YUMYUM CAFE & BAKERY PTY LTD (trading as Bakers Central Café & Bakery) at this location indicates that many of the duties that would be performed by a Café / Restaurant Manager would not be required. Duties are such as:

    o   planning and organising special functions;

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

    o   conferring with customers to assess their satisfaction with meals and services;

    o   selecting, training and supervising waiting staff;

    o   take reservations, greet guests and assist in taking orders.

    ·     Based on observations at Shop 1B Triholm Avenue, Laverton, the officers were satisfied that this shop was not the primary work location of Ramandeep Kaur.

    The above information indicates that the position associated with the nominated occupation is not genuine therefore the prescribed ground for cancellation defined at Regulation 2.43(1) (kb)(iii) of the Migration Regulations 1994 exists in this case.

21. At hearing I discussed the documentary evidence before the Tribunal that included the NOICC letter of 7 March 2017, delegate’s decision of 31 March 2017 (provided to the Tribunal in the review), and the documents produced by the applicant and representative. At hearing the applicant described the store at South Melbourne Central:

    ·The store sold takeaway food such as sandwiches, cakes, donuts and also simple Vietnamese dishes such as steamed rice with chicken- and everything was cooked in the morning.

    ·The store had been a very big and spacious restaurant with tables at the front. When I pointed out it was a food hall with tables in the centre, she agreed and said the store told customers they could sit there.

    ·The store served dishes in big plates, and food was served at tables. She agreed food was ordered at the counter and the customers were told food would be brought to them. When I queried how that was done in a food court she responded customers were told to sit at a table.

    ·The store employed two waiters. When I queried whether they only did waitering, she responded they also prepared food and prepared plates. I queried how those staff had time to wait on tables during a busy lunch, and she responded with a description of the busy kitchen area and how staff prepared plates and she assisted in taking orders. I next queried how staff had time to bring food out to the food court tables with the kitchen being so busy. She responded that someone cooked the food and another one brought the food to the table. I then queried that nonetheless they did this while also doing everything else she had described, and she agreed and spoke of cooking and preparing food. I pointed out that waiters doing all of this sounds unlikely.

    ·I queried how the waiters knew who to take the food to in the food hall. She responded that when she took the order she told the staff they needed to cook a dish for that person and it would be taken to the person. She agreed she took customers’ orders and told staff this dish is for that person.

    ·When I queried whether from the start of her employment there had been shared tables in a food court, she responded the store told customers they could sit in the food court otherwise there were three tables in front, and after a renovation the number of tables was reduced. When I pointed out that anyone could sit there as it was a food court she agreed.

    ·After a renovation the tables had been distant, but the store still served at tables.

    ·The South Melbourne Central management were responsible for the tables and chairs including cleaning and collecting rubbish.

    ·She trained waiters by showing them where the dishes and dishwasher are, and told them about safety and the wellbeing of the customers.

22. At hearing the witness Mr Le described the store at South Melbourne Central:

    ·When the business started there had been: three food stores and the stores faced the food court but later SMC put in two kiosks and so there are now five food stores; eight tables for the store only, but the number of tables had been reduced by SMC after a renovation.

    ·The tables were in a food court and managed by the food court that included cleaning.

    ·The store was a counter and display with a menu displayed. The customers ordered at the counter and were given a number, and normally staff took food to the tables. He then agreed that when food was ready the store would call out the number/name and the customer came up and took their food to a table. When I pointed out that the store didn’t then have waiters, he responded that two staff took food to tables. When I pointed out that the SMC was responsible for the tables and chairs, and queried whether occasionally staff took some hot food to a table, he agreed. He added it was not their fault the SMC changed the tables.  

23. The evidence of the applicant and Mr Le at hearing is that the store has always operated in the same way. The store is an internal food business in the SMC mall that faces inside and is comprised of a long counter facing the mall, with staff behind the counter, and a kitchen behind them. The store has never been a business with its own internal tables and chairs with waiter service. Customers have always come up to the counter, viewed the menu/food, ordered and paid at the counter. The applicant stated everything was cooked in the morning. The store has always sold a range of takeaway food including sandwiches, pies and sausage rolls, sweets and slices, cold beverages and coffee. Other hot food was also sold and these dishes were often seasonal and largely reflected simpler Vietnamese cuisine. In sum, the format of the store and operation and the menu show the store was a fast food and takeaway business.

24. Customers have had the option of taking their food away or eating their food at tables and chairs in the mall. The evidence of the applicant and Mr Le at hearing is that the store had waiters and table service. The letter dated 14 March 2017 from Spotlight Property Group mentioned a renovation in October 2016 that increased seating in the food court “allowing them to attend to more customers on a table service basis”. However, the applicant’s evidence about the store having two waiters and how she managed them was not convincing. When I examined her evidence about the waiters she discussed how those staff undertook a range of tasks such as working in the kitchen and preparing plates. Her description of the training of waiters merely involved orientating them about where things were such as the dishwasher and a shallow description of telling them about safety and customer wellbeing. Similarly, Mr Le’s evidence was that two staff took food to tables but he also agreed that when food was ready the store would call out the number/name and the customer came up and took their food to a table, and occasionally staff took some hot food to a table. In sum, while I accept the store brought a hot meal to a table in the food court for some customers, I find this was only ever infrequent and almost all transactions were takeaway or involved the customer collecting their hot meal from the counter and taking it to a table. I do not accept staff had been employed as waiters but rather, kitchen staff had been available to take a hot meal to a table in the food court on quite infrequent occasions while also performing their usual kitchen tasks. I do not accept the store had a need for waiters or ever employed waiters. 

25. The evidence of the applicant and Mr Le at hearing is that at the start there had been three food stores. Their evidence, and supported by the letter dated 14 March 2017 from Spotlight Property Group, was that the store used some tables adjacent to the store but in October 2016 the SMC management replaced three adjacent tables with a Tatts tenancy, and put more tables elsewhere in the food court available to all (by then) five food tenants in the centre. The Departmental site visit on 2 February 2017 was conducted after the October 2016 renovation/expansion and the officers observed that there was an “absence of dining facilities meant for the exclusive use of” the store. However, at hearing when I asked the applicant whether from the start of her employment there had been shared tables in a food court, she responded the store told customers they could sit in the food court otherwise there were three tables in front, and after a renovation the number of tables was reduced. When I pointed out that anyone could sit at the tables as it was a food court she agreed. The evidence of the applicant and Mr Le at hearing is that the tables and chairs the store used were always in the mall/food court and have always been managed by SMC and the centre was responsible for cleaning and rubbish removal. In sum, I find that store customers had been able to sit at tables in the food court/mall that originally included three tables adjacent to the store until they were removed. But I find that the tables were not set aside for the store’s exclusive use as: the tables were in a public space in a mall; they could be used by anyone in the mall/food court; they were controlled and managed by the SMC management.

26. The relevant Instrument identified the occupation of Café or Restaurant Manager 141111 and the occupation description was to “Organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.” However, as discussed at hearing, the position in the store at SMC did not require many of the occupation tasks including:

    • Planning and organising special functions
    • 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 staff
    • May take reservations, greet guests

1. As discussed at hearing, the store sold takeaway and fast food, and did not have special functions. The store had no dining facilities and never had any control over the tables in the mall/food court, and so the position never had a task to ensure dining facilities complied with health regulations and were clean, functional and of suitable appearance. Customers always ordered and paid for food at a counter before the food was given to them, and infrequently hot food was taken to a customer at a table- the position did not involve conferring with customers to assess their satisfaction with meals or in particular with service. I do not accept there had been waiters employed by the store and so I do not accept that the position ever required waiting staff to be selected, trained and supervised. The store had no dining facilities and so there had been no reservations of tables and the position had no task of greeting guests.

2. After considering the evidence, and submissions and arguments of the applicant and in light of my foregoing findings I find that the at the time of the business nomination the nominated occupation was Café and Restaurant Manager ANZSCO 141111 and the position to be filled was at Bakers Central Café & Bakery located at Shop G22, 111 Cecil Street, South Melbourne Central, and the position to be filled had not been at any other location. I find that the position to be filled at Bakers Central Café & Bakery was in a Fast Food or Takeaway Food Service both at the time of the nomination and at the time the applicant was granted the Subclass 457 visa on 20 November 2013 on the basis of the approved nomination. The caveat in IMMI 13/066 - that for a nomination or visa application for a Subclass 457 visa, the occupation excludes positions in Fast Food or Takeaway Food Service- applied to both the nomination and the applicant’s visa application for a Subclass 457 visa. I find, therefore, that the position associated with the nominated occupation is not genuine. As well, in the foregoing discussion I find the position associated with the nominated occupation had never required or involved many of the occupation tasks, and for this reason too I find that the position associated with the nominated occupation is not genuine.

3. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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

4. 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’ including:

   ·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

   ·the extent of compliance with visa conditions

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

   ·circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

   ·past and present behaviour of the visa holder towards the department

   ·whether there would be consequential cancellations under s.140

   ·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

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

   ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

   ·any other relevant matters

   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

5. Her travel and stay in Australia to November 2013 As discussed at hearing, the applicant first entered Australia in 2009 on a Student visa, and she last entered Australia on 23 February 2013 on a Student visa, and she held a Student visa up to the grant of a Subclass 457 visa on 20 November 2013. To that time, the purpose of her travel to and stay in Australia had been to study as a student with a requirement to depart Australia if she ceased her approved study. Her travel and stay in Australia as a student is now distant in time and does not give her a compelling need to remain in Australia.

6. Her stay in Australia on a Subclass 457 visa The applicant applied for the Subclass 457 visa, and the nominator made a business nomination, on the basis that the applicant would work in a nominated occupation of a Cafe & Restaurant Manager 141111 for the nominator Yumyum Cafe & Bakery Pty Ltd at Shop G22, 111 Cecil Street, South Melbourne (SMC). Based upon the documentation provided by the applicant and nominator to support the business nomination and visa application- and as the delegate[1] advised without a site visit- the Department assessed that the position was genuine and that the applicant met the relevant criteria, and so approved the nomination and visa application. But on 29 January 2016, the applicant lodged an application for a permanent resident visa Subclass 186 and as part of the assessment for that visa application a site visit was conducted on 2 February 2017. The site visit led the Department to consider cancelling the applicant’s visa and her visa was cancelled on 31 March 2017 on the basis that the nominated occupation was not genuine. She sought a review of the visa cancellation and the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. Accordingly, for the entire time that the applicant held her Subclass 457 visa she worked in the nominated occupation that is not genuine.

   [1] Delegate’s decision at page 3

7. The applicant’s stay in Australia was on the basis that she would work in a genuine position, and depart before the Subclass 457 visa ceased if she did not get another Subclass 457 visa or obtain a visa of a different class. Accordingly, her stay in Australia working in a non-genuine position while holding a Subclass 457 visa weighs in favour of cancellation.

8. Her work at the nominator’s Laverton store The applicant claims that she also went to work as a Cafe & Restaurant Manager at the nominator’s store at Laverton and this was a café with seating. As discussed at hearing, the approved position concerned the position at SMC and not at Laverton. As well, the applicant’s evidence about her work at Laverton was not convincing. At hearing she at first said she had gone two or three times, and only after I asked for clarification she stated two or three times each month when the Laverton store was busy. But as I pointed out at hearing, this seems different to the submission of 15 March 2017 that stated the applicant’s employer “sometimes sent her to manage the business in Laverton”, and different to her evidence of being very busy at SMC up to October 2016.

9. She also claimed that she transferred to the Laverton store in October 2016 as the SMC seating had decreased and the store was losing customers. The submission of 15 March 2017 discussed this claimed transfer and key points are:

   ·The business decided to transfer the applicant to Laverton because the October 2016 renovation at SMC had led to reduced business, and she was “quite familiar with the (Laverton) business as she has already worked there on several occasions”.

   ·In the first week of November 2016 the business owner asked her to work permanently at Laverton and to be on call to work temporarily at SMC.

   ·However, in November 2016 she was seven months pregnant and she had “lots of complications during her third trimester”. Therefore she took one month leave in the second week of December 2016.

10. As discussed at hearing, the submission’s statement of her being asked in November 2016 to work at Laverton followed by a description of her significant health complications as a result of a difficult pregnancy at the time, causes me to have concerns with her evidence at hearing that she commenced work at Laverton in October 2016 and worked there full-time until she obtained a medical certificate and went on sick leave from 16 December 2016. As I pointed out at hearing, while not determinative of the issue, she had provided to the Tribunal her bank account statements that covered the period October to December 2016 but there were no references to transactions in Laverton. She stated the transactions they showed at Docklands could be when she took the train to Laverton, but as I next pointed out, she also stated she took a train to get home when working at South Melbourne and the statements showed she had long had bank transactions at Docklands.

11. As well, the applicant and nominator did not advise the Department of this claimed change of position and employment until after the site visit in February 2017 and NOICC letter of 7 March 2017. The applicant submits this is because she was not able to think about anything except her difficult pregnancy and then the birth of her child on 28 January 2017. A submission submits the nominator Ms Thi Lieu Tran had been “super busy in October and November 2016 as her new restaurant in Ballarat was under construction” and as her son had some mental issues since birth and she spent extra time with the son (and this was supported by a large volume of medical reports and assessments concerning Ms Thi Lieu Tran’s son). However, as I pointed out at hearing, this did not explain why Mr Le (who had given evidence at hearing) had been unable to advise the Department.

12. In sum, I cannot discount the possibility that the applicant worked at the Laverton store on occasion from 2013 to 2016 but I do not accept that she worked there on a regular basis of two or three times each month. I do not accept that she transferred to the Laverton store in October 2016. I cannot discount the possibility that she travelled to Laverton from a date after the first week of November 2016 albeit this soon ceased when she took sick leave in December 2016. She does not propose to work at the Laverton store in the future. She was not granted a Subclass 457 visa on the basis of a position at Laverton, and at best was briefly transferred there after working in a non-genuine position since 2013. Accordingly, her scant work at a Laverton store while holding a Subclass 457 visa does not give her a compelling need to remain in Australia.

13. Her stay in Australia from December 2016 As discussed at hearing, the applicant had undertaken little work since December 2016 for the following reasons:

    ·16 December 2016 to 15 January 2017, sick leave (medical certificate)

    ·23 January to 10 March 2017, maternity leave (maternity leave form of 23 November 2016)

    ·She was still on maternity leave and expected to return to work on 11 April 2017 (submission of 15 March 2017)

    ·At hearing she stated she briefly returned to work in March 2017 before going on unpaid maternity leave

    ·27 March 2017 to February 2019, unpaid maternity leave (submission of 3 December 2018)

14. Her proposed future work The applicant made an application for an Employer Nomination (Subclass 186) visa on 29 January 2016. Her proposed position was at SMC as a café or restaurant manager. However, her Subclass 186 application was refused on 3 August 2017 on the basis that the employer nomination by the nominator had been refused (as shown by a copy of the delegate’s Subclass 186 refusal decision provided by the applicant to the Tribunal after the hearing). The nominator sought a review of the refused employer nomination by the Tribunal, and the applicant has sought a review of the refused Subclass 186 visa application, and those reviews have not been determined by the Tribunal.

15. At hearing the applicant and Mr Le stated she intends to work for the nominator in the future but at a different location and indeed, in a store that had not yet opened. The applicant and Mr Le discussed the nominator’s new store in the town of Nhill that they stated was planned to open in February 2019. A prospective menu showed Vietnamese street food. However, the applicant’s evidence about working in Nhill caused me problems. She stated that she would work in Nhill but at hearing she appeared uncertain where it was located beyond saying it was in the country and her evidence did not satisfy me that she had made any investigations about moving there to live and work. When I queried whether her husband would also move there she at first said he would remain in Melbourne with the children. When I pointed out this would mean she would be separated from the children and in particular the youngest who had caused her to stay at home since birth, and her husband worked, she responded that she has a sister who can care for the children in Melbourne. She then stated she could move to Nhill first and the family could follow later. In sum, while I consider the applicant had given no genuine consideration to moving to Nhill to live and work, I cannot discount the possibility that she would do so in the future if it led to her being granted a visa that enabled her and her family to remain in Australia. 

16. However, the new store in Nhill had not yet opened at the time of the hearing, and the store and position there has not been assessed by the Department for the purposes of either a Subclass 457 visa application or Subclass 186 visa application. Also, as the applicant and Mr Le said at hearing, the delegate had not refused the application for the Subclass 186 visa because of the visa cancellation on 31 March 2017, but because the sponsor’s business nomination had been refused due to the Department’s assessment of the sponsor’s finances.

17. I acknowledge that the visa cancellation if affirmed would additionally adversely affect her application for an Employer Nomination (Subclass 186) visa. Nonetheless, even if the Tribunal exercised the discretion and her Subclass 457 visa was not cancelled, the Tribunal’s findings that the applicant had not worked in a genuine position while she held a Subclass 457 visa would also ostensibly adversely affect her ability to meet all of the requirements for a Subclass 186 visa. The applicant holds a Bridging visa that allows her to remain in Australia while the reviews remain on foot and her continued stay does not depend on her holding a Subclass 457 visa. I consider that in these circumstances the applicant’s proposed work in Nhill and/or her unresolved application for an Employer Nomination (Subclass 186) visa do not weigh against cancellation.

    Circumstances in which ground of cancellation arose; The extent of compliance with visa conditions

18. The ground of cancellation arose when the applicant commenced work at SMC. In my foregoing findings I find the applicant had almost wholly worked in a fast food and takeaway food service in a food court at SMC and so she worked in a position that was excluded from the occupation of Café or Restaurant Manager 141111, and she did not perform many of the occupation tasks of the position. I find, therefore, she has remained in Australia for years as a Subclass 457 visa holder while working in a non-genuine position, and this weighs in favour of cancellation.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship); Whether there would be consequential cancellations under s.140; Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation; If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

19. The cancellation would not lead to removal in breach of Australia’s non-refoulement obligations. I note  that no claims have been raised, and I find on the evidence that cancellation of the visa would not do so, taking into account that the applicants have a permanent visa application/review on foot.

20. I accept that the visa cancellation will lead to the consequential visa cancellations of her husband and two children, and that they will be required to return to India. The applicant’s response to the NOICC letter did not raise any matters of hardship but at hearing her evidence was that she and her family would suffer hardship if her visa was cancelled and they had to return to their home area in north India.

21. At hearing the applicant particularly spoke of her children and she argued the visa cancellation and move to India would have an adverse effect on them as they are aged 11 and 2. I have considered the Convention on the Rights of the Child (CROC) and whether cancellation would not be in the best interests of the children. I have treated the children’s interests as a primary consideration.The oldest child was born in India but has attended school in Australia for many years and has spent the majority of his life in Australia. The youngest child was born in Australia and has just turned 2 and has always been cared for at home by the applicant. While the applicant would prefer to raise her children in Australia because of greater opportunities and lifestyle, the children are Indian nationals and hold Indian passports and will have no difficulties travelling to and living in India. Ostensibly, the children would meet other of their family and relatives in India. I accept the children would face some degree of psychological hardship if the visa is cancelled, but not at a level that suggests they cannot travel to India to live. It is in the best interests of the children that they not be separated from the parents, and if the applicant’s visa is cancelled, the children will not be separated from the applicant (their mother) or father (whose visa would also be consequentially cancelled).

22. The applicant’s husband would also have his visa consequentially cancelled, however, he would return to India with his wife and children and he is an Indian national who previously lived in India. The applicant discussed her and her family’s happy life in Australia. Until the birth of her youngest child she had worked in a good job, and she intended to work again in Nhill, and her husband works full-time, and they would not get that well-paying work in India. However, the applicant would return to India with qualifications and some work experience albeit as a manager of a fast food/take away outlet, and her husband would return with work experience in warehousing. They are Indian nationals and they will be able to seek and get work in India. As such there is no evidence before the Tribunal that the applicant will encounter insurmountable difficulty re-establishing herself and her family in India where the applicant and her husband’s extended families live. I do not accept she or her family faces financial hardship if the visa is cancelled.  

23. While the applicant has a strong bond with her close sister (an Australian citizen) and sister’s family in Melbourne, and the applicant and family would have formed friendships here, she states that all her other relatives are in India.

24. As already canvassed, a Subclass 457 is in any event of limited duration related to working for a particular sponsor in a skilled occupation. It does not create an expectation of a permanent or extended life in Australia or an expectation of ongoing financial or other advantage by reason of being in Australia. Having taken all of these matters into account, and in particular the primary consideration of the children’s best interests, I place limited weight on any hardship that may be caused to the applicant and family members and I place limited weight against cancellation. I note that it does not follow from this the Tribunal must find that the visa should not be cancelled, rather the Tribunal may exercise its discretion to cancel the visa if it finds that other considerations outweigh the best interests of the child: (see for example Wan v Minister for Immigration & Multicultural Affairs, Australia: Full Federal Court, 18 May 2001).

    Past and present behaviour of the visa holder towards the department

1. The applicant has been personally cooperative in her dealings with the Department and Tribunal. Nonetheless, some of the information provided to support her Subclass 457 visa application was misleading and intended to facilitate the visa grant without meeting all of the visa grant requirements (ie one of which had been that the position was genuine). I give these considerations no weight either in favour of cancellation or against cancellation.

   Whether there are mandatory legal consequences

2. The applicant is currently on a Bridging visa because of this review process and the review process concerning the refused Subclass 186 visa application. She would be able to remain in Australia with her family, and wait for the outcome of the refused Subclass 186 visa application. In the absence of a successful outcome, or the Minister granting a visa, ultimately she will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst her continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision.

3. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include business or skilled visas. Consequently, this limits what visa applications could be made by the applicant whilst onshore. I have taken that potential limitation into account. She will also be subject to Public Interest Criterion 4013 as a result of a cancellation which means she may not be granted a temporary visa for three years from the date of a cancellation. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, I am not satisfied there are consequences of the cancellation which mean that the visa should not be cancelled.

   Any other relevant matters

4. I have considered and weighed up all of the relevant circumstances in this matter including the matters raised by the applicant and her representative. I place substantial weight on my finding that the applicant has always worked in a position that did not require many of the tasks of a café or restaurant manager and was in a fast food/takeaway store and was not genuine, and that the cancellation did not arise in circumstances which were outside of the applicant’s control (ie SMC management rejigging seating in the mall/food court).

5. I place little weight on her plans to work for the sponsor in Nhill in the future, in light of: the new store in Nhill had not yet opened at the time of the hearing; the store and position there has not been assessed by the Department for the purposes of either a Subclass 457 visa application or Subclass 186 visa application; the problems with the sponsor’s finances identified by the Department in the employer nomination refusal have not yet been reviewed/resolved.

6. I place some weight on the difficulties the visa cancellation will have on her Employer Nomination (Subclass 186) visa application, and that her visa status would impede further nomination and employment opportunities. I place some weight on the fact that there will likely be some hardship on the applicant and her family if the visa is cancelled, including financial, emotional and psychological hardship. I have taken the best interests of the children into account as a primary consideration. It is in the best interests of the applicant’s children that they not be separated from the parents, but if the applicant’s visa is cancelled, the children will not be separated from the applicant (their mother) or father (whose visa would also be consequentially cancelled). If the visa is cancelled, all of the family will remain in Australia on Bridging visas while the applicant’s Subclass 186 review is determined, and if unsuccessful all of the family will ultimately be required to depart Australia.

7. However, balanced against those matters is that the purpose of the applicant’s continued stay in Australia was to fill a particular approved position for a particular approved sponsor. Further, despite the applicant’s, her husband’s and her children’s extended residence in Australia, I am not satisfied they would not be able to re-establish themselves in their home country, where their extended families live, albeit this is not an option of their choosing.

   Conclusion

8. The Tribunal has considered this matter in light of the applicant’s own particular circumstances as in the Tribunal’s view it is required to do so, so as not to fetter the discretion to be exercised. The Tribunal has considered and weighed up all of the relevant circumstances in this case.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

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

    C. Packer
    Member