Kaur (Migration)

[2018] AATA 5404

Kaur (Migration) [2018] AATA 5404 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gurpreet Kaur
Mr Gurbax Singh
Master Ekamjot Singh

CASE NUMBER:  1711717

HOME AFFAIRS REFERENCE(S):           BCC2015/1817995

MEMBER:Amanda Mendes Da Costa

DATE:15 November 2018

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 15 November 2018 at 10:19am

CATCHWORDS

MIGRATION – cancellation – Temporary Work (Skilled) visa – Subclass 457 – Federal Circuit Court remittal – cook – applicant allegedly not working in nominated occupation – anonymous informant – anonymous evidence not reliable – cancellation ground not made out – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348, 359
Migration Regulations 1994, condition 8107

CASES
Gill v Minister for Immigration and Border Protection (2018) FCCA 1726
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 23 September 2015 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 delegate cancelled the visa under s.116(1)(b) of the Act on the basis that the applicant had not complied with paragraph 3 of condition 8107, as she was not working in the nominated occupation of Cook ANZSCO Code 351411 with her sponsored employer. 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 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 Tribunal notes that on 24 October 2016, the Tribunal (differently constituted) affirmed the delegate’s decision to cancel the applicant’s visa.

5. On 22 November 2016, the applicant made an application to the Federal Court for review of the Tribunal’s decision.

6. On 26 May 2017 the Federal Circuit Court quashed the Tribunal’s decision and remitted the matter to the Tribunal.

7. The applicant appeared before the Tribunal on 15 October and 7 November 2018 (by telephone) to give evidence and present arguments. The Tribunal also received oral evidence from Noureddine Osman and considered written submissions dated 10 October 2018, provided by the applicant’s representative.

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

9. 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

10. 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?

11. A visa may be cancelled under s.116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

    Applicant’s evidence

12. The applicant told the Tribunal that she commenced employment with Mr Osman after her Subclass 457 visa was granted.  Her position was as a Cook and her duties involved the preparation and cooking of meals in her employer’s café in Williamstown. She subsequently worked in the same role in another restaurant operated by her employer in the Docklands area of Melbourne.  This was a newly established business in the first few months of operation; it was difficult for her employer to predict when the restaurant was likely to be busy.  Consequently there times in the beginning when the restaurant was short staffed, particularly with waiters and waitresses.  On some of those occasions Ms Kaur took prepared meals from the kitchen to customers seated in the restaurant.  This was to prevent meals from becoming cold before waiting staff could serve them.  Ms Kaur explained that at no time did she serve drinks or takes any orders for meals.  This was left to the waiters and waitresses.

13. Ms Kaur said that she occasionally served meals in the first few months of the restaurant’s operation because she was a loyal employee and wanted to ensure the success of the business. 

14. Ms Kaur told the Tribunal that she left Australia and returned to India with her son.  Her husband remained in Australia to continue his employment.  Ms Kaur is presently living with her parents-in-law and is not employed.  Ms Kaur’s son was previously attending primary school in Melbourne.  Upon his return to India, he attended a school there but he did not settle and found the curriculum unfamiliar. He is now being home-schooled via an Australian on-line program.

15. Ms Kaur and her son are living rent-free with her in-laws and receive financial support from them, Ms Kaur’s parents and her husband.

16. Ms Kaur told the Tribunal that that it had been very difficult to be separated from her husband and that their son missed his father.  She said the boy could not understand why they were required to leave Australia and wanted to be with his father.

17. Pursuant to s.359AA of the Act, the Tribunal invited the applicant to comment on or respond to information contained in a ‘Job Details Report’ dated 25 June 2015 in the Department’s file, which recorded that an unidentified ‘source’ had informed the Department that three investigators from the Department had visited the applicant at her place of employment two weeks ago. The source further advised the Department that during this visit, the owner of the business told the applicant to put on a chef’s apron and to answer all questions in a way which implied that the applicant was working there as a chef. 

18. The ‘source’ further advised that the applicant had continued to work as a waitress, cleaner and bartender and only pretended to work as a chef during the interview with Departmental staff for a couple of hours.

19. After being given time to consider this information and her response, the applicant told the Tribunal that she was employed as a chef and not as a waitress or cleaner.  She recalled speaking to Departmental staff who visited her then employer’s restaurant in Docklands in early June 2015.  She said that they visited the restaurant as part of an investigation into another female employee of the restaurant and spoke to her during the course of their discussions with Mr Osman and other staff about that employee.  The applicant told the Tribunal that the only reason she assisted with the delivery of meals to the restaurant’s patrons during the first few months of the business was at the request of her employer whom she wished to assist.

    Evidence of Noureddine Osman

20. Mr Osman was the applicant’s previous employer and the proprietor of two food outlets in Melbourne.  Mr Osman told the Tribunal that he initially employed the applicant in a kebab cafe situated in Williamstown where she was employed as a cook.  He then employed the applicant in the same position in a restaurant he opened in Docklands in 2015.

21. Mr Osman explained that during the first few months of the restaurant’s operation, whilst he was establishing the business, he was unsure of the likely number of patrons each day.  This meant that at times, there were insufficient waiters/waitresses in the restaurant.  He said that at times when this occurred he requested the applicant to serve the meals she prepared.  However, he did not request the applicant to serve drinks or take orders from patrons.  He further explained that as the business became established he ceased to ask the applicant to assist with tasks other than prepare food.

22. Mr Osman described the applicant as a very good employee who was friendly, honest, hardworking and competent.  He confirmed the applicant’s evidence regarding the visit of Departmental staff to his restaurant in June 2015.

    Applicant’s submissions

23. The applicant’s submissions may be summarised as follows:

    ·There is no information available to substantiate the claim that the applicant was working as a cleaner and bartender and not in her nominated occupation of cook.

    ·The applicant was not working as a cleaner or bartender during her employment although she has acknowledged the brief period in which she performed other duties in her position as a cook.  She has also provided a reasonable explanation as to how this occurred.

    ·It is significant that the allegation against the applicant is anonymous.  This means that the Tribunal is unable to assess the informant to determine whether or not to accept the information as reliable evidence.  For this reason the allegation should be given no weight by the Tribunal.

    ·The Tribunal should adopt the approach of the Court in Gill v Minister for Immigration and Border Protection (2018) FCCA 1726, the Federal Circuit Court held that in circumstances where an informer decides to keep her or his identity anonymous, then it is not possible to assess the informer’s credibility and therefore, little weight should be given to any anonymous evidence.

24. The Tribunal accepts the evidence of the applicant and Mr Osman regarding the applicant’s role within his business.  It found their evidence to be credible and consistent. Although there were occasions during the initial stages of the operation of the restaurant in Docklands when the applicant performed some tasks which were not part of her role as a cook, the Tribunal is satisfied that this was a temporary measure whilst the restaurant business was being established and was not part of the applicant’s ongoing position.  The Tribunal is further satisfied that the applicant’s predominant role was one of cook.

25. The Tribunal acknowledges that the Department received information from an anonymous informant that the applicant was employed by Mr Osman as a waitress and cleaner rather than a cook.   The Tribunal has considered the ‘Job Details Report’ dated 25 June 2015, in which the information from the anonymous informant is recorded.  Apart from noting that the informant told staff they were terminated from their employment at the restaurant, there are no other identifying details for this person and no corroborative evidence for the allegation made against the applicant.

26. The Tribunal accepts the evidence made by the applicant in respect of the weight to be given to the allegation against the applicant.  The Tribunal accords little weight to this allegation in circumstances where there is no other corroborative evidence and the applicant and her employer have given sworn or affirmed evidence denying the allegation.

27. The Tribunal is satisfied that the applicant was employed in her nominated occupation of cook, albeit that on a limited number of occasions, she took the meals she had provided to patrons in the restaurant.  The Tribunal is satisfied that this was done at the request of her employer and not on her own initiative.  The Tribunal finds that the applicant was not employed in the role of cleaner/bartender and is unable to place an reliance on the allegation made by the anonymous informant as grounds for making findings in the matter.

28. 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

29. 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.

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

    Amanda Mendes Da Costa
    Member