Pirallo P/L (Migration)

[2019] AATA 1967

Pirallo P/L (Migration) [2019] AATA 1967 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Pirallo P/L

CASE NUMBER:  1603482

DIBP REFERENCE(S):  OPF2015/2296

MEMBER:Warren Stooke AM

DATE:26 April 2019

PLACE OF DECISION:  Melbourne

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 26 April 2019 at 5:34pm

CATCHWORDS

MIGRATION – cancellation – approved sponsor – restaurant proprietor – sponsored person working in nominee occupation – nominee employed as Restaurant Manager – erroneous evidence provided by unauthorised owner’s sons – sanctions on approved sponsors – site inspection – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140L, 140M, 357A
Migration Regulations 1994 (Cth), rr 2.86, 2.89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a 457 visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa on 26 February 2016.

2. The delegate made the decision on the basis of evidence arising from a site inspection and a request for information concerning the sponsored position where evidence under s140M(2) of the Act was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 4 April 2019 the Tribunal received oral evidence from the applicant. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the decision of the delegate should be set aside.

4. The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 26 February 2019 and that she understood the content of the decision.

6. The applicant informed the Tribunal that her agent has the decision and that she did not have it with her. As such, the Tribunal provided the applicant with an overview of the delegate’s decision.

7. The applicant stated that she understood the basis of the decision but did not agree with the delegate’s decision.

8. The Tribunal informed the applicant that there was a Certificate on file under Section 357A. and explained the basis of the Certificate

9. 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.

   The Relevant Law

10.      Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.

1. 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.

2. For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.

3. Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant gave evidence that she is the sole proprietor of the restaurant where the nominee is employed as a Restaurant Manager and that she has operated the business for 9 years.

5. The applicant gave evidence that the Departmental inspectors interviewed her two sons, who were aged 22 years and 21 years at the time and that they purported to be owners and managers of the business, which on the applicant’s evidence was factually not true. The applicant stated that her sons had even tried to overpower her and that they would take over the business.

6. The applicant stated that her sons were employees and were subordinate to the nominee and that their behaviour eventually led to their termination of employment. As such, the applicant was dismayed that the Departmental inspectors had been misled as to the true circumstances, which could have been rectified had she personally been interviewed by the inspectors.

7. Further, the applicant gave evidence that the nominee was not rostered to work at the time of the inspection and was not interviewed by the inspectors. The applicant stated that it was “not fair the inspection took place when she [the nominee] was not there”.

8. The Tribunal noted to the applicant that the two year bar imposed by the delegate had passed and sought advice as to why she was continuing with the application. The applicant responded that she did not think it was right to have the record stand as it was and she wanted to ensure that the record was corrected.

9. The applicant described to the Tribunal the duties of the nominee, which from the Tribunal’s perspective aligned with the descriptor of a Restaurant Manager as provided in ANZSCO 141111. The duties of the nominee included, but were not limited to:

   a.Managing listings and the running sheet, including where the patrons would sit;

   b.Managing the floor staff and their duties;

   c.Placing orders with external suppliers, including cakes, drinks, serviettes, alcohol;

   d.Determining in consultation with the chef the specials to be offered to patrons;

   e.Hiring of staff either through online media or walk-ins responding to the window sign for experienced staff, including interviews and a two hour trial and then make a decision;

   f.Direct the cleaning staff;

   g.Interact with sales personnel.

10. The Tribunal accepts that the decision of the delegate, which was based upon erroneous evidence provided by the unauthorised owner’s sons, would have led to the decision made by the delegate, however, upon review by the Tribunal, with the legitimate owner, the Tribunal is satisfied that Regulation 2.86 - Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity has been met.

11. The cumulative evidence presented to the Tribunal leads it to the conclusion that it has been demonstrated that the significant majority of the duties performed by the nominee are equivalent to that of a Restaurant Manager, as presented in the nomination occupation.

12. Accordingly, the Tribunal is not satisfied that the prescribed circumstance in r.2.89exists for the purpose of s.140M of the Act.

    Action to be taken

13. As the Tribunal finds that 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.

    DECISION

14. 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.

    Warren Stooke AM
    Member