LLHR1 Pty Ltd (Migration)

[2018] AATA 2470

LLHR1 Pty Ltd (Migration) [2018] AATA 2470 (6 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  LLHR1 Pty Ltd

CASE NUMBER:  1725934

DIBP REFERENCE(S):  OPF2017/4588

MEMBER:Kate Millar

DATE:6 June 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.

Statement made on 06 June 2018 at 1:19pm

CATCHWORDS
Migration – Sponsorship barring order – Whether the applicant has failed to satisfy a sponsorship obligation – Whether the applicant allowed a visa holder to work in an occupation other than the occupation specified in an approved nomination – Duties undertaken consistent with duties of occupation specified in the approved nomination – The power to take action does not arise – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 140L, 140M, 375A
Migration Regulations 1994 (Cth), rr 2.86, 2.89(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. LLHR1 Pty Ltd (LLHR1) operates a Mexican restaurant ‘Lucky Lupitas’. The director and secretary of the company, Mr Bradford Young, is the chef for the restaurant.  He employed Ms Sonia as a restaurant manager under a Temporary Work (Skilled) (Subclass 457) visa.   

2. To sponsor a person for a subclass 457 visa, the sponsor must be an approved sponsor.  LLHR1 was approved as a standard business sponsor on 24 September 2014. The obligations of an approved sponsor include that the sponsor employs the person in the nominated occupation.  This means LLHR1 must only employ Ms Sonia as a restaurant or cafe manager.  If the employer fails to do so, it is in breach of a sponsorship obligation and a delegate of the Minister may take various actions in response to a breach.

3. In this case, a delegate of the Minister for Immigration and Border Protection found LLHR1 had failed to employ Ms Sonia as a restaurant or cafe manager.  On 9 October 2017 the delegate barred LLHR1 from making an application for approval as a standard business sponsor for a period of two years. The effect of this has included that Ms Sonia’s visa was cancelled, and that LLHR1 cannot sponsor other people to work for it.

4. LLHR1 has applied for a review of this decision, and states it continued to employment Ms Sonia as a restaurant manager and has not breached any of its sponsorship obligations.

5. Mr Young appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sonia Sonia.  LLHR1 was represented in relation to the review by its registered migration agent.

6. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958 (the Act).

   SECTION 375A CERTIFICATE

7. A certificate was issued by a delegate of the Minister under s.375A of the Act. This required the Tribunal not to release the visa holder’s bank statements. LLHR1 was advised of this certificate and provided with an opportunity to comment on the validity of the certificate.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Act in relation to the applicant’s sponsorship.

9. Section 140M provides for the imposition of sanctions on approved sponsors in certain circumstances.

10. The circumstances include, at r.2.89(2) of the Migration Regulations 1994 (Regulations), that the sponsor has failed to satisfy a sponsorship obligation. Sponsorship obligations are set out in Division 2.19 of Part 2A of the Regulations.

11. Regulation 2.86(2) requires a sponsor for a subclass 457 visa holder to ensure the visa holder does not work in an occupation unless it is the occupation that was specified in an approved nomination.  This means LLHR1 must ensure Ms Sonia works as a cafe or restaurant manager, and not in some other occupation. 

12. If it has breached this obligation, the Regulations prescribe criteria that must be taken into account when determining what action, if any, to take: rr.2.89–2.94B.

13. Under s.140M, if prescribed circumstances exist, the Minister (and the Tribunal on review) may take one or more of the following actions:

    ·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;

    ·cancelling the sponsorship approval for all classes to which the sponsor belongs;

    ·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and

    ·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.

14. In issue in this matter is whether LLHR1 has breached the requirement that Ms Sonia work only as a cafe or restaurant manager; and if so, what, if any, action should be taken. 

    Has LLHR1 failed to ensure Ms Sonia worked in the occupation specified in the approved nomination?

15. Ms Sonia is employed as a cafe or restaurant manager.  A guide to the duties of this position can be found in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) which states this position organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.  The tasks listed in ANZSCO 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.

16. In the present case, the delegate found that LLHR1 had failed to comply with its obligation to ensure Ms Sonia worked as a cafe or restaurant manager.  This was on the basis of a site visit which concluded that Mr Young and Ms Sonia had provided inconsistent information about the days she worked, her involvement in recruiting, the rostering, the method through which staff notified they are sick, how hours of staff were recorded, and Ms Sonia’s involvement in changes to the menu. 

17. The delegate reported the site visit found the visa holder assisted with a range of duties that were not managerial, such as checking bookings, organising and setting up tables, filling water bottles and nut bowls, checking the stock for drinks, making sure food and drinks go out and customer satisfaction, taking orders and training new staff.  The delegate found Ms Sonia was not doing other tasks associated with a cafe or restaurant manager such as ensuring acceptable standards of food preparation, kitchen hygiene, overall control of the finances and business profitability, planning menus and recruiting.

18. The business operates seven days per week, with dinner every night and lunch on Sundays.  On Sundays either another employee manages the premises or Mr Young’s wife when she is available.  He said his wife worked as a casual one to three shifts per week. 

19. Ms Sonia is currently on maternity leave, and Mr Young said she has been replaced while on maternity leave with another employee.  Ms Sonia has two children, one of whom is 17 years old and one who was three months old at the time of the hearing. 

20. Mr Young described his role as the head chef of the business.  He said he is at the restaurant at some stage every day.  He orders stock, prepares and serves food and organises new dishes.  He said he is trying to find more time away from the kitchen so that he can concentrate on his role as a director of the company, and had attempted to hire a Mexican chef but is now unable to do so due to the bar that has been imposed on LLHR1.  He considers his role as director to involve meeting with the accountant, and making sure documents such as Business Activity Statements are submitted.  Mr Young said the bookkeeper does the pays, but that Ms Sonia authorises and submits the times for the employees. Ms Sonia does the banking and depositing takings of the business.

21. In terms of recruiting, they do not often actively recruit casual staff as people come through the door seeking work.  They have a large pool of casual front of house staff that Ms Sonia manages.  If the person is employed in the kitchen, Mr Young trains them but Ms Sonia is responsible as manager including making sure tax forms are provided to the bookkeeper to be submitted to the tax office and making sure staff are paid correctly.  The bookkeeper is an employee, Radika Irkulla, who is the wife of a shareholder. 

22. In the kitchen, Mr Young orders the vegetables every day and also orders stock imported from interstate and overseas.  Mr Young manages occupational health and safety in the kitchen and ensures standards are met for food.  In terms of accessing new suppliers, Mr Young said new suppliers generally approach the business rather than the business needing to seek new suppliers.  If necessary, he obtains referrals from other chefs.  If ingredients are required that are only available overseas, he will access the ingredients.  Mr Young said Ms Sonia would locate new suppliers, however I did not find this consistent with his other evidence that he manages the kitchen part of the business.  Likewise his evidence that if a new supplier approached the kitchen Ms Sonia would finalise the supply.  It is more likely that the roles fall as generally described by Mr Young; that he is responsible for the kitchen and Ms Sonia is responsible for front of house. 

23. The ordering for front of house such as beverages and consumables is done by the nominee.  In terms of plates and glassware, he orders the plates and Ms Sonia orders glassware.  Ms Sonia organises supplies for front of house.

24. Mr Young said the menu does not change much, and when new dishes are required Mr Bradley researches the dish and they jointly test new dishes.  He said that he tells Ms Sonia the costs of the ingredients and from this she calculates the price of the dish.

25. Mr Young described the tasks involved in Ms Sonia’s position as doing rosters, setting up the venue, accepting inventory, monitoring service, greeting customers and answering the telephone.  Mr Young says she monitors front of house, general cleanliness and customer satisfaction.  At the end of the week she compiles reports according to the takings and submits it to the bookkeeper with the invoices.  On the weeks they do menu changes she sets up the menu and makes sure it is on the board or the printed menu.

26. Mr Young said Ms Sonia normally worked Sunday to Thursday, with Friday and Saturday off but if she needed a day off during the week he would cover her absence.  He said Ms Sonia suffered from morning sickness and there were times she could not attend work.  If she was unable to work she would generally make up the time she was absent.  

27. Ms Sonia said her role was to order supplies for the front bar, train staff, obtain invoices for the supplier for the bookkeeper, check that the customers were happy, and occupational health and safety.  In regard to occupational health and safety in the kitchen, she said the chefs are mostly trained.  In regard to pay, she said she submits the timesheets and Mr Young checks these when he has time. 

28. If there is a new dish she said she would present it to the chef, test it and put it on the menu.  In regard to price, she said she would decide prices for the bar and in the kitchen Mr Young decides. On being asked for an example of costing, she said when buying beer she allows for a 25% profit.  Items on the menu are marked up by 25%, calculated by reference to the ingredients. 

29. She said she was working Monday to Friday, but then Monday to Thursday and had Friday and Saturday off.  Ms Sonia said she would lock up at night-time and check the cash and do the banking.  She checks the payroll and submits the timesheets. Ms Sonia named the staff members and described the tasks of each staff member.  She described the allocation of tasks to staff members.  In regard to the staff, she checks their identification and visa status, completes tax and superannuation forms with them and trains the new staff members.  She ensures they have bank account details for payments and submits all the documents to the bookkeeper.  Ms Sonia said she does the rosters fortnightly and arranges for replacements if staff members are sick.  She does the banking and locks up at night-time. 

30. Mr Young and Ms Sonia provide generally consistent evidence about her role in the business and the tasks she undertakes. While Mr Young is a director of the company and controls the operation of the kitchen, I am not satisfied this precludes Ms Sonia from acting as a manager of the restaurant.  I am satisfied she undertakes tasks such as the purchasing and pricing of beverages, and prices menu items from information provide by Mr Young.  She maintains stock in the front of house, does the banking, ensures the dining facilities comply with health and safety and are clean and functional, confers with customers to ensure satisfaction and selects and trains front of house staff, with Mr Young managing the kitchen staff.  She takes reservations and assists with orders.  These tasks are consistent with the tasks of a cafe or restaurant manager specified in ANZSCO.  The difference in this case is that Mr Young manages the kitchen, however I do not consider this fact inconsistent with Ms Sonia working in the nominated occupation of cafe or restaurant manager.  

31. Having considered all of this information, and having reviewed the recording of the interview at the site visit, I am not satisfied LLHR1 has failed to ensure that Ms Sonia does not work in an occupation other than that specified in the approved nomination. 

32. Accordingly I am not satisfied that there has been a breach of r.2.86(2) or that the prescribed circumstance in r.2.89 exists for the purpose of s.140M of the Act.

33. As the Tribunal finds, on the information before it, none of the circumstances for s.140L(1)(a) exist, it follows that the power to take an action under s.140M does not arise.

    Other matters

34. Mr Young said Ms Sonia was paid $55,000 per annum, however her payment summaries show she was paid $46,538 in the 2017 financial year, $50,769 in 2016, and in $33,562 in 2015.  In submissions provided after the hearing, it was stated she took two weeks’ unpaid leave in 2017.  It is also claimed that a supplementary payment summary was issued as the accountant failed to merge two MYOB files for two visa holders employed by the business. While two payments summaries were provided for Ms Sonia, these do not appear to be reflected in her tax return, which records a gross income of $46,538 for the 2017 financial year.  This gross pay is recorded in the original payment summary and does not include amounts in the supplementary payment summary. 

35. Ms Sonia was not listed as a member for superannuation purposes in the superannuation statement initially provided to the Tribunal.  After the hearing submissions and documents were provided about her superannuation.  One of these is the super clearing house online which it is submitted shows entries made for Ms Sonia on this system.  A statement from Ms Sonia’s HostPlus account for the period 1 July–31 December 2017 was also provided which shows gaps in superannuation payments.  It is submitted that ‘the super entitlements have now been paid up to date and the current balance will appear in the account next week’.

36. While these matters are of concern, they are not issues currently before the Tribunal.  It is beyond the scope of this Tribunal, whose role is to review decisions made by a delegate of the Minister, to undertake general investigations into sponsors.  The Department of Home Affairs may wish to look at these matters further in the future.  

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.

    Kate Millar
    Member