Nguyen (Migration)
[2021] AATA 3950
•27 September 2021
Nguyen (Migration) [2021] AATA 3950 (27 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Kim Long Nguyen
Mrs Thanh Tu TranCASE NUMBER: 2100191
HOME AFFAIRS REFERENCE(S): BCC2020/2154523
MEMBER:Joanne Bakas
DATE:27 September 2021
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Statement made on 27 September 2021 at 1:31pm
CATCHWORDS
MIGRATION – cancellation – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – working only in the nominated occupation – position of Baker – site visit identified the applicant making pizzas – employing sponsor’s approval and business requirement – common practice by bakers across Australia – comparable duties of Fast Food Cook – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348, 360
Migration Regulations 1994, Schedule 8; Condition 8607; r 2.86CASES
Morgun v Minister for Immigration [2009] FMCA 1306
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 6 January 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 482 - Temporary Skill Shortage visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was not performing the tasks of a Baker (ANZSCO 351111) which was the position that he was nominated to work in for the sponsoring business. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was 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 the second named applicant’s visa 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 the second named applicant.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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 8607(1) attached to the applicant’s visa. This condition requires the visa holder to only work in the occupation nominated by the nomination identified in the application for the most recent Subclass 482 visa granted to the holder.
The Tribunal notes that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 482 visa which was dated 23 November 2020. The NOICC indicates that the applicant was granted a Subclass 482 visa on 4 November 2019 and had been sponsored by Waikerie New Land Pty Ltd (trading as New Land Bakery) to work in the position of Baker.
The NOICC refers to the Australian Border Force (ABF) officers conducting a site visit to the sponsors business and that as part of the site visit it was discovered that the applicant was performing tasks that are not defined within the duties of a Baker. Specifically the officers found that the applicant was preparing pizzas for the sponsor as part of the role. On 9 July 2020 ABF officers conducted a telephone interview with the applicant. During the interview the applicant stated he worked 15 hours a week from Thursday to Saturday undertaking a pizza shift and 24 hours a week from Friday to Sunday as a Baker. The NOICC refers to preparing pizzas as being one of the tasks performed under Fast Food Cook (ANZSCO 851111). The departmental officers concluded that the applicant was not performing the work in the occupation listed in the most recently approved nomination. The departmental delegate concluded that the applicant had not complied with paragraph 8607(1) attached to his visa. The applicant was invited to comment on whether he believed that the ground for cancellation existed and having regard to the relevant considerations whether or not the visa should be cancelled.
The applicant responded to the NOICC in an email dated 7 December 2020 via his registered migration agent. The applicant notes that the employer sponsor explained to the officers that the making of pizzas were within the duties of the applicant’s role as a Baker. However, it was accepted that the ground for cancellation as particularised was valid and made out by the applicant being directed by his employer/sponsor to make pizza as part of his baking duties which had inadvertently breached his visa condition. The applicant noted that the cancellation power under section 116 of the Act is discretionary and sought for this discretion to be exercised in this favour such that his visa is not cancelled and made submissions in regard to the home discretionary cancellation policy matters to be considered.
As part of their submissions, the applicant provided a statutory declaration dated 4 December 2020 which details that as part of his employment as a full-time Baker he is required to make and bake a range of breads and sweet and savoury pastry products for sale in the retail side of the bakery business. He also states that both he and his employer sponsor held the mistaken view that as the bakery product range has always included pizzas that therefore his duties naturally included the making and cooking of pizzas. However this matter was explained to him and the employer by ABF officers at its recent monitoring of the employer business that the making of pizza is considered to be a breach of his visa work condition. He has since been directed by his employer and also on his own initiative to stop making pizzas now that he has been made aware that his duties do not include the making of pizzas.
The Departmental delegate considered the applicant’s response to the relevant considerations as to whether or not the visa should be cancelled. On 6 January 2021 the delegate proceeded to cancel the applicant’s visa finding that the applicant had not complied with condition 8607(1) attached to his visa and that having regard to the factors as to whether or not the visa should be cancelled that the factors for cancellation outweighed those not to cancel.
The applicant lodged an application for review with the Tribunal on 7 January 2021.
On 2 September 2021 the Tribunal received additional submissions from the applicant via a different migration agent. These further submissions raised an issue regarding the validity for the ground of cancellation. It was submitted that the occupation of Baker as defined in ANZSCO at 351111 needs to be read as a whole when assessing nominated occupation. The ANZSCO is not prescriptive as to all tasks that may or may not be performed in a particular occupation because of the words “tasks include” before the listing of tasks relevant to the occupation (referring to Morgun v Minister for Immigration [2009] FMCA 1306 at [39]). These submissions also referred to the relevance of the Department of Home Affairs PAM policy related to regulation 2.86(2)(a) noting that the policy for this regulation states that some work outside of the nominated occupation may be considered acceptable under policy if the duties are closely related to those of the nominated occupation. However the significant majority of work must be in the nominated occupation for regulation 2.86 to be satisfied.
Further it is submitted that whilst the word ‘only’ appears in condition 8607(1) such that the applicant must only work in the occupation of Baker, the word ‘only’ does not lead to a construction that if the applicant perform tasks which are common to that of a Baker and another occupation, that the applicant is not, ‘only’ working as a Baker. This is because the definition of ANZSCO occupations lists tasks which are common across different occupations. The following example was provided. The tasks of a Cook ( ANZSCO 351411) include: ‘examining foodstuffs to ensure quality’ and ‘regulating temperatures of ovens, grills and other cooking equipment’. These are in practice the same as (although not stated so) as the following ANZSCO tasks of a Baker (351111) respectively: ‘checking the quality of raw materials and weighing ingredients’ and ‘monitoring oven temperatures and product appearance to determine baking times’. It is therefore submitted that it cannot be said that in the above example if a Baker monitoring and regulating oven temperatures or checking the quality of ingredients they are also performing the task of the Cook and therefore not working ‘only’ as a Baker.
On 7 September 2021 the applicant provided the Tribunal with a statutory declaration dated the same day. This declaration included the following:
a. As a Baker at New Land Bakery he always made a range of breads and pastry products. About 30 to 40% of his working week included making pizzas.
b. When making pizzas he would first assemble and weigh some ingredients and mix them in the mixer machine, then mature the pizza dough for a few hours. He would then later knead, cut and roll the dough to be then put in the pizza pans which he had greased with oil. When the orders were received for the pizzas, he would then put the sauce and toppings on the dough depending on what pizza was ordered. He then ensured that the oven was at the right temperature and baked the pizza in the oven.
c. He did not prepare or cook any of the pizza toppings (such as lamb and chicken or vegetables etc) and he did not make any pizza sauce. He also did not serve or take orders from customers and did not deliver any orders to customers. He also did not order and receive food stock from suppliers. These tasks were done by other staff members.
d. When making the pizzas, he would also have to often make other bread and pastry products which were running low so that there were enough products for customers coming to the bakery in the afternoon and evening to buy.
e. He always believed that making pizzas was part of a Baker’s duty because he was making dough which he makes every shift as a Baker and pizzas are a bread product which are baked in an oven. The topping he put on the pizza bread base is a task done by many bakers when adding flavour to bread such as cheese and bacon savoury rolls. His employer also believes that making pizzas was okay according to his sponsorship obligation to sponsor him as a Baker. That’s why his employer asked him to make pizzas and also why he did not think there was any problem with this for his visa condition.
f. In any event due to the Department’s decision, he has ceased making pizzas since the end of August 2020. He knew that he was sponsored to work as a Baker and could not work in other occupations. This is why, for example, he never made any other types of non-bread or pastry related products at New Land Bakery as he knew that these are not a Baker’s duties. He never wanted to have any problems with his visa conditions and always wanted to make sure he followed the law. If he had known that making pizzas would not be acceptable to immigration for a Baker, from the start of his work, then he never would have made them at all.
The applicant also provided the Tribunal with a letter from his employer dated 1 September 2021 in which his employer, Mr Minh Chang Tang , director of Waikerie New Land Pty Ltd, confirms that the applicant never prepared or cooked any ingredients to be used on the pizzas and did not make the pizza sauce. These tasks were performed by other staff.
Further there is a letter provided in support of the applicant’s position written by Mr Tony Smith, Executive Officer Baking Association Australia, dated 30 August 2021. Mr Smith states that Baking Association Australia is the peak industry body representing bakery owners throughout Australia. He notes that the baking industry is very diverse and at any time during a shift bakers produce a range of products. Products such as pizzas or pizza slices are not only produced by small bakeries but also large groups of franchises. He finds that the employer, Mr Tang, having his Baker, Mr Nguyen, producing pizzas etc while also producing other baked products is an acceptable role carried out by bakers across Australia every day and night.
The Tribunal considered the tasks of a Fast Food Cook in ANZSCO (851111) and notes that they are listed as:
• taking and serving food and beverage orders, and receiving payment from customers
• preparing food such as hamburgers, pizzas, fish and chips
• washing, cutting, measuring and mixing foods for cooking
• operating cooking equipment such as grills, microwaves and deep-fat fryers
• cleaning food preparation areas, cooking surfaces and utensils
• ordering and taking delivery of fast food ingredients
• may arrange delivery of prepared food and beverages
The Tribunal also consider the tasks of a Baker in ANZSCO (351111) and notes that they are listed as:
• checking the cleanliness of equipment and operation of premises before production runs to ensure compliance with occupational health and safety regulations
• checking the quality of raw materials and weighing ingredients
• kneading, maturing, cutting, moulding, mixing and shaping dough and pastry goods
• preparing pastry fillings
• monitoring oven temperatures and product appearance to determine baking times
• coordinating the forming, loading, baking, unloading, de-panning and cooling of batches of bread, rolls and pastry products
• glazing buns and pastries, and decorating cakes with cream and icing
• operating machines which roll and mould dough and cut biscuits
• emptying, cleaning and greasing baking trays, tins and other cooking equipment
The Tribunal accepts the applicant’s submissions that he did not serve or take food orders and that he was not involved in the preparation and cooking of the pizza sauces and toppings.
Having considered all of the evidence before the Tribunal, including the applicant’s submissions and statutory declaration, the Tribunal finds that the duties the applicant was undertaking more closely align to that of a Baker.
In particular, the Tribunal considers that the preparation of pizza bases does fall within the ANZSCO duties of a Baker (kneading, maturing, cutting, moulding, mixing and shaping dough) and finds that the adding of sauces and toppings to the pizza bases is something that is merely incidental to the applicant’s main tasks.
Condition 8607(1) states:
The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.
The Tribunal finds that the visa holder was only working in the nominated occupation of Baker and has complied with condition 8607(1).
The Tribunal also accepts that the applicant initially did not dispute the cancellation grounds as he simply accepted the information provided to him by the Department.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 482 - Temporary Skill Shortage visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Joanne Bakas
Member
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