Rani (Migration) - [2017] AATA 1207

Rani (Migration) [2017] AATA 1207 (19 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Meenu Rani
Mr Nirmal Singh
Master Paramvir Singh
CASE NUMBER:  1619371
DIBP REFERENCE(S):  BCC2016/2998111
MEMBER:Marten Kennedy
DATE:19 July 2017
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 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 19 July 2017 at 5:04pm

CATCHWORDS
Migration – Cancellation – Temporary Work (Skilled) visa – Subclass 457 – Café and Restaurant Manager – Duties correspond to nominated occupation

LEGISLATION
Migration Act 1958, ss 116, 140(1), 348,
Migration Regulations 1994, Schedule 2, Condition 8107
CASES
Nguyen and Vu Publishers Pty Ltdv Minister for Immigration and Anor [2013] FCCA 1697
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision dated 15 November 2016 made by a delegate of the Minister for Immigration 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).
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 and third named 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 the second and third named applicants’ 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 the second and third-named applicants. However, In the course of the hearing I received evidence concerning Mr Singh and Master Singh’s personal circumstances so that I could take those matters into account if necessary.
Under s.116 of the Act, the Minister may cancel a visa if 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). A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa.
Does the ground for cancellation exist?
Condition 8107 was a condition of the applicant’s visa. Among other requirements, and relevantly in accordance with the Department’s allegations, condition 8107(3)(a)(i) requires that the applicant work only in the occupation listed in her most recently approved nomination. In this regard, the applicant’s most recently approved nomination was for the occupation of Café and Restaurant Manager.
The determinative issue in the present case is whether I am satisfied that the applicant breached this aspect of condition 8107. In other words, I must be positively satisfied that the applicant was working in an occupation other than a Café and Restaurant manager in order for the breach to be established and the power to consider cancellation of the visa to arise.
After reflecting carefully on the evidence collected by the Department, the evidence of the witnesses at hearing and the submissions of the applicant’s migration representative, I have decided that I am not positively satisfied that the applicant was working in an occupation other than Café and Restaurant Manager.
Although not precisely on point for the purposes of determining a breach of condition 8107, but in a similar context, the Court held in Nguyen and Vu Publishers Pty Ltdv Minister for Immigration and Anor [2013] FCCA 1697, that the task for the Tribunal is to determine whether the nominated occupation corresponds to an occupation [in that case, for the purpose of determining if it corresponds to an occupation identified by legislative instrument], and that such a judgment must inevitably compare the real duties of the nominated position with that of a specified occupation. I take that guidance into account, but in addition I remain conscious of the gravity of visa cancellation and mindful that I must be positively satisfied that a ground for cancellation has arisen.
In this regard, I proceed on the basis that it would be incorrect for me to approach this matter by deciding whether I would have approved a nomination on the evidence before me, but rather that I must be positively satisfied that the applicant is not working in the occupation of café and restaurant manager, or working in another occupation, in order for the ground for cancellation to be established.
First, it is necessary to establish what the occupation of Café and Restaurant Manager entails. The ANZSCO dictionary provides (at Unit Group 1411) that a Café and Restaurant Manager organises and controls the operations of cafes, restaurants and related establishments to provide dining and catering services.
In Australia, persons undertaking this occupation might typically hold an AQF Associate Degree, Advanced Diploma or Diploma or have at least three years of relevant experience.
The ANZSCO dictionary provides, by way of example, that the tasks of the occupation 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
The allegations from the Department arise from a telephone conversation an immigration officer had with the visa applicant in which the applicant was asked to describe her duties at the restaurant and the nature of duties undertaken by others.
I have taken into account the submission of the migration representative. It submitted that the applicant may have been disadvantaged by providing information in a telephone interview in this way as the process limits the scope for understanding, and other evidence may have been available that would have provided a better picture of what the applicant was doing during a site visit and in-person interview. It is also submitted that the applicant has limited English language communication skills.
I was able to observe the applicant in the hearing, and she was clearly very nervous and had difficulty communicating clearly and naturally with me. From my assessment of the applicant, I have attributed this more to nervousness and panic as to the potential consequences of visa cancellation for her and her family rather than difficulty with the English language.
I consider there is force in the applicant’s migration representative’s submission that the telephone interview in this particular situation may have restricted the applicant’s capacity to fully explain the nature of her role. However, I also note that the process for visa cancellation affords the applicant other opportunities to correct any misperception in writing and through the provision of other evidence.
The delegate’s decision record provides a satisfactory summary of the information provided to the Department by the applicant in the telephone interview in terms of describing her duties. I reproduce those duties from the delegate’s decision record below:
·     Take orders from customers
·     Handle customers feedback – asking customers about food
·     Working out front
·     Receive online orders and take phone orders
·     Serve drinks
·     Take orders from customers at their table or counter
·     Pass orders to kitchen
·     Receive calls from customers
·     Help the owner plan the menu
·     Clean glasses
·     Make tea and coffee
·     OHS – ensure staff wear caps and take care of their health
·     Cleans the restaurant when necessary (when owner not in)
From the handwritten notes, I identify that the applicant also mentioned that she opens and closes and assists in the organisation of large functions.
At the hearing, I revisited the topic of the duties undertaken by the applicant. Her evidence was similar to that recorded by the immigration officer, but she also explained that she checks reservations and has a role in monitoring stock at the front of house. Her evidence was not entirely clear as to whether she also orders stock for the kitchen, or whether she is responsible for checking items have been received and arranging payment of invoices. She provides daily sales reports to the owner, Mr Khattri, by producing them from the POS system.
I enquired further about the staff of the restaurant. The applicant explained that there is a cook and another all-rounder. In addition, the applicant explained the owner will attend at the restaurant in the evening after he finishes driving buses for the day. Sometimes he will stay and help in the kitchen or out the front. Mr Khattri’s wife and daughter may also be called upon to wait tables.
I explained that my primary concern from the evidence was that the restaurant itself seemed to be a very small family business, and there seemed little scope for the applicant to provide a management function, particularly given the owner and his family were regularly present. I invited the applicant to comment on this observation, but she had difficulty engaging with the concern and restated the evidence she had given about her duties.
Mr Khattri, the owner, also gave evidence. Some of his evidence was not the same as the applicant’s in relation to the regularity with which he attended the restaurant and what he would do once he was there. I invited Mr Khattri to point to the duties of the applicant that he thought made her a manager, and Mr Khattri referred to the production of sales reports from the POS system.
I have also had regard to written evidence from customers (Ms Semmens and Mr Duregon). Both describe the applicant as the Manager but do not explain why they perceive her to be undertaking this occupation. I place some, but limited, weight on the perceptions of these customers.
I have also had regard to written evidence from suppliers (G Chandrah and Sunny A[illegible]) who state that the applicant works as the manager and being the person who settles payments and making orders. Their evidence was not consistent with the applicant’s own evidence about the nature of items she is responsible for ordering, and so I place limited weight on this evidence.
I have also had regard to written evidence from Ravi Adikari, who describes himself as an all-rounder working at the restaurant. He describes the applicant as the manager. I place limited weight on the evidence of this witness who did not attend the hearing and does not elaborate further on the issue before me.
Samples of sales reports generated from the POS system and invoices from suppliers certified as ‘ok’ by the applicant have also been provided.
As mentioned above, the submissions on behalf of the applicant emphasise the risk in relying on the content of the telephone interview in the circumstances. The submissions also draw attention to the language used by the delegate in reaching findings. For example, the observation is correctly made that the delegate’s decision refers to the Department having ‘reason to believe’ the applicant is not undertaking the duties of a manager, and that she ‘appears to be’ performing the role of a waitress and undertaking limited managerial duties. It is submitted to the effect that the findings of the delegate expressed in this way may not amount to positive satisfaction of the ground being established. While there is force in this submission, it is ultimately now a matter for me to assess the evidence and make my own findings.
Assessment
As mentioned above, I have approached this decision on the basis that I must be positively satisfied that the applicant is not working in the occupation of café and restaurant manager, which is a materially different state of satisfaction to being satisfied that she is performing that occupation, for example the question to be considered in approving a nomination or granting a visa.
However, I have also approached the decision on the basis that the business in question is a small family owned Indian / Nepalese restaurant. I recognise that identifying a manager of such an establishment also performing non-management roles such as serving customers does not necessarily establish that the person is not performing the occupation of café and restaurant manager. To draw that conclusion would fail to recognise the reality of hospitality businesses.
On the one hand, the applicant’s description of her typical duties seems heavily weighted towards tasks that would not need to be performed by a person employed as a café and restaurant manager. The focus of the applicant’s evidence was on the serving of customers and the receipt of feedback. Also, I am concerned about the size and scope of the business providing limited opportunity for management to be performed by the applicant, especially given the presence of the owner and his family.
On the other hand, it is significant that the owner is also employed as a bus driver, and so I accept that the business will require a degree of day to day management that he may not be able to perform. In this context, I accept that it is possible that management functions may overlap between the owner and the applicant without a level of demarcation that makes identifying the nature of the occupation straightforward by reference to typical tasks performed.
I accept the applicant’s evidence that she opens the business and checks invoices before authorising payment. I accept the applicant’s evidence that she assists in the planning of functions and produces sales reports for the owner. I accept that the applicant takes a leading role (from a relatively small pool) in receiving feedback and addressing customer concerns in the course of the usual operations of the business. These functions, in my view, distinguish the applicant’s role from being only a waitress.
As I compare the duties that I accept are undertaken by the applicant against the example tasks in ANZSCO, particularly in the context of this small hospitality, I find I am not positively satisfied that her duties do not allow her occupation to be described as a café and restaurant manager. In these circumstances, I am not satisfied that the applicant has breached the condition that she work only in the occupation listed in her most recently approved nomination.
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 457 (Temporary Work (Skilled)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Marten Kennedy
Member