Simple (Migration)

[2019] AATA 4178

Simple (Migration) [2019] AATA 4178 (30 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Simple Simple
Mr Vishal Mehra

CASE NUMBER:  1619422

HOME AFFAIRS REFERENCE(S):           BCC2016/3078746

MEMBER:Karen Synon

DATE:30 August 2019

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 second named applicant.

Statement made on 30 August 2019 at 11:03am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – ground for cancellation – work only in occupation listed in approved nomination – Café or Restaurant Manager – Departmental site visit – did not perform the tasks associated with the approved position – waitress responsibilities –thorough knowledge of staffing and operational matters of the restaurant – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8107

CASES
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 16 November 2016 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) on 3 November 2016 the basis that the applicant had not complied with Condition 8107(3)(a)(i).

3. The applicant applied for review of the decision to cancel her visa on 18 November 2016 and provided to the Tribunal a copy of the primary decision and the notification of cancellation.

4. This case was first constituted to another Member who both wrote to the applicant in accordance with s.359A and s.359(2) and conducted a hearing.  When she was unable to finalise this matter it was constituted to the current Member constituting the Tribunal.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Invitation to comment and provide information

6. On 5 May 2017, in accordance with the provisions of s.359A and s.359(2), the Tribunal wrote to the applicant in the following, relevant terms:

   ·     The particulars of the information are:

   o    Department records indicate that you arrived  in Australia on 21 June 2009 as the holder of a subclass 572 Student visa valid to 20 September 2011;

   o    On 15 November 2011 you were granted another subclass 572 visa valid to 5 June 2013, at which time you were granted a further subclass 572 visa valid to 20 February 2015;

   o    On 26 September 2014 Zaxaroplatio Pty Ltd AFT J & D Family Trust (‘Zaxaroplatio Pty Ltd’) …lodged an application for approval of a business nomination with the Department of Immigration (‘the Department’).

   o    On 25 November 2014 the Department approved the business nomination lodged by Zaxaroplatio Pty Ltd for a ‘Café or Restaurant Manager’ (ANZSCO Code 141111) in your favour, with a base annual salary of $55,000 (‘the approved nomination’).

   o    On 11 December 2014 you applied for a subclass 457 visa.  On 20 February 2015 the Department granted you a temporary Business Entry (class UC) subclass 457 visa that was originally valid until 20 February 2019.  However, this visa was also subject to mandatory conditions 8107 and 8501.

   o    On 8 January 2016 two department officers conducted an unannounced site visit to Melissa Cakes Thornbury, where Zaxaroplatio Pty Ltd operates a restaurant.

   o    As a result of discussion conducted with ‘Maria’ and other employee at the restaurant, the department officers formed the view that you were not performing the tasks associated with the approved nomination

   o    On 26 July 2016 the Department issued a ‘Notice of Intention to take action’ to Zaxaroplatio Pty Ltd, and it responded to this notice on 19 August 2016.

   o On 15 September 2016 the Department made a decision under section 140M(1)(c) of the Act to bar Zaxaroplatio Pty Ltd for 1 year from sponsoring more people for subclass 457 visas.

   o    There is no information before the Tribunal to indicate that Zaxaroplatio Pty Ltd made a request to the Minister to waive this bar under section 1400 of the Act, or that it lodged an application for review with the Tribunal in respect of the department decision to impose a sponsorship bar.  Accordingly, the bar still applies to Zaxaroplatio Pty Ltd.

   o    On 1 November 2016 the Department issued you with a ‘Notice of Intention to Consider Cancellation’ (‘NOICC’) on the basis that the information it acquired through the department site visit at Melissa Cakes Thornbury and the interviews it conducted with you and other employees at this workplace, indicated that you were not performing the tasks associated with the approved nomination position of ‘Café or Restaurant Manager’ (ANZSCO 141111).

   o    As a result, the Department considered that there were grounds for finding that you may not have complied with subparagraph 8107(3)(a)(i) of condition 8107, which meant that your visa could be cancelled under paragraph 116(1)(b) of the Act.

   This information is relevant to the review for the following reasons:

   ·We may find that your occupation ‘Café or Restaurant Manager’ (ANZSCO Code 141111) is not a specified occupation in legislative instrument IMMI 130/667 for the purposes of paragraph 8107(3A).

   ·As a result, you would not be exempt from meeting the requirements in paragraph 8197(3) of condition 8017 and, therefore, we may find that you must meet the requirements of subparagraph 8107(3)(a)(i).

   ·Subparagraph 8107(3)(a)(i) provides that, as the holder of you subclass 457 visa, you must only work in the occupation listed in the most recently approved nomination for you, namely as a ‘Café or Restaurant Manager’ (ANZSCO 141111) at  Zaxaroplatio Pty Ltd.

   ·We may also find that Zaxaroplatio Pty Ltd did not take any action to dispute the findings of the department site visit or its decision on 15 September 2016 to bar Zaxaroplatio Pty Ltd from sponsoring more people for subclass 457 visas. This is because Zaxaroplatio Pty Ltd did not make:

   ØA request to the Minister to waive this bar under section 140O of the Act; or

   ØLodge an application for review with the Tribunal in respect of the department decision to impose a sponsorship bar.

   ·Given the information before us, we may find that you did not work only in the occupation listed in the most recently approved nomination for you.  In other words, you did not work and perform the tasks associated with a ‘Café or Restaurant Manager’ (ANZSCO Code 141111), which was the occupation in the business nomination lodged by Zaxaroplatio Pty Ltd in your favour.

   ·Accordingly, we may find that you did not comply with subparagraphs 8107(3)(a)(i) and condition 8107 of your subclass 457 visa.

   ·As a result, we may find that there is a ground for cancellation of your visa under paragraph 116(1)(b) of the Act ; and

   ·Unless we are satisfied that we should exercise our discretion not to cancel your subclass 457 visa, if we make these findings, then we would have no option other than to affirm the decision under review.

   The applicant was invited to give comments or respond to the above information in writing and also provide information in relation to the Tribunal’s discretion.

   The Applicant’s Response

7. On 19 May 2017 the applicant provided a statement and a number of supporting documents.  This submission appears to us the word of the applicant.  Nonetheless it relevantly contended:

   [The applicant’s] employer Zaxaroplatio Pty Ltd ATF J & D Family Trust was an approved sponsor and had the position of "Cafe or Restaurant Manager" approved by the Department on 24/11/2014 and [the applicant] was employed as Cafe or Restaurant Manager (ANZSCO code: 141111) after the grant of her 457 visa in March 2015 with validity until March 2019…On 8th January 2016 all of sudden immigration officers came to the work premises and investigated the staff including me, I was the café and restaurant Manager performing the duties according to employment contract submitted to the Department.
   There was another employee Maria who joined the cafe in September 2015 (six months after [the applicant]).  Her position was "barista" but she assumed the position of supervisor in [the applicant’s] absence.  Maria was responsible for making coffee, handling cash transactions and cleaning and assisting [the applicant] in any form for efficient management of our cafe.
   When the department officers visited the cafe, they wrongly assumed that [the applicant] required authorisation from Maria such as in requesting keys, or that she is not confident enough that she requires to be partnered up with.  In fact Maria often assisted [the applicant] for mundane tasks.  For example, on the day of visit by department officers, [the applicant] asked Maria to provide her the office keys from behind the counter. It would be reckless to consider this act as "taking authorisation^.", whereas it is simply a gesture of directing/requesting another employee to hand over the keys from behind the counter.  She performs her duties autonomously and it is industry practice that cafe managers work in a team and never work in isolation. Hence it would be inappropriate to consider a cafe manager to be working at a lower skill for being assisted by team member…Maria was never employed as a manager as she lacked necessary skills and attitude of a team leader.
   [The applicant] has been working in the nominated position of Restaurant/Cafe Manager and has been responsible for discharging her duties as per the position description. She had been performing the following job duties as assigned by her employer:

   Customer Service

   ·    Ensuring that the highest standard of customer service is consistently maintained in line with business objectives

   ·    Ensuring that any complaints are professionally and diplomatically dealt with in accordance with Company procedures. Any complaints that remain unresolved are to be referred to the Director

   Product

   ·    Ensuring that all products are prepared, cooked and served in accordance with all policies and procedures.

   Maintenance

   ·    Ensuring that all equipment and Store facilities are maintained within Company guidelines encompassing both hygiene and safety requirements.

   ·    Ensuring that all equipment/facilities difficulties are promptly referred to the appropriate resources.

   Marketing

   ·    Assisting with the successful implementation of all marketing strategies and continually informing all staff of any changes to pricing, products and promotions.

   Training and Development

   ·    Assisting with training and development activities for all staff.

   Human Resources

   ·    Assisting with the recruitment and selection of all staff, ensuring that recruitment processes follow a formal, logical and professional manner always in accordance with business standards.

   ·    Assisting with the induction of all staff.

   ·    Ensuring that all Safety, Security and Accident Reporting policies, practices and purposes are consistently followed for the safety of staff, customers and visitors.

   ·    Dealing professionally with all employee grievances and ensuring that appropriate behaviour is consistently maintained on all shifts.

   ·    Referring or discussing any problematic issues with the director.

   Leadership

   ·    Assisting in sourcing and formally communicating all new and changed information to all staff.

   ·    Assisting with the coaching and support of all team members to ensure cafe objectives are consistently achieved.

   Accounting/Finance/Cash Control

   ·Ensuring that all "cash handling" procedures are consistently adhered to by all staff.

   Purchasing

   ·Assisting in reviewing and placing stock orders on a daily/weekly basis ensuring that ' efficient stock levels are maintained.

   Therefore, this is my client's view that it is not a breach [of] 8107…The departmental decision indicates that she was engaged in waitress roles responsibilities, actually she wasn't.  Delegate’s decision on the matter of 8107…there was an absence of why and how officer justified that she was having the waitress responsibilities.  In case of officers viewed her doing the waitress roles while they have visited the work premises, I will request the member to regard to ABS website café and restaurant manager tasks content which has responsibilities of waitress…

   According to tribunal concerns raised in page 3 of letter…"employer should have requested the minister to waive the bar which has been imposed by delegate on 15^th September 2016.  And, employer should have at least reviewed at tribunal".  My employer was not aware of this previously that he is required to file another review application separate to this review application.  It is understandable that there is a lack of knowledge on regulations.  Otherwise employer would have applied for the review.  Because he has applied for my work rights by explaining his financial hardship due to my visa cancellation.  If he knew he would have taken step to go to the minister or tribunal to waive the bar according to the regulations.  Employer now is thinking to lodge the review or to make a request, he is consulting the solicitor in this regarding as well.  Therefore, I request the member to examine the whole situation and see if any case laws to apply for this situation.

   In case of employer doesn't have chance to review the SBS bar or to request the minister for waiver:

   According to s.140M of the Migration Act 1958 (the Act) employer SBS is barred means employer is stopped to 'sponsor any "more" employees in future. But it should not affect the visa if tribunal considers that [the applicant] has not breached the `8107' condition. Then "cancellation of visa" is primary factor to review according to present condition. I believe it is manifestly clear to the Tribunal that [the applicant] has not breached the 8107 condition.

   Hardship and Compelling Reasons:

   [The applicant] had always complied with her visa conditions as have always carried out her duties as described above.   She had been working with the business for nearly one year and nine months and her employer has delegated significant responsibilities on her to run the cafe business efficiently.  In her absence, the business will be adversely affected will result in significant loss to the business.  [The applicant] has been granted work rights in light of compelling reasons by the Department and she continues to work in the café in the same position…Additionally, visa cancellation will cause a significant mental stress to [the applicant] and her family.  Her whole family will get disturbed and her income from this employment will get ceased causing immense financial hardship.  Further on, visa cancellation will lead to a ban/exclusion period to apply for any visa, because of which, [the applicant’s] professional career will be destroyed.  Additionally, [the applicant] is saving up funds to undertake IVF treatment which will cost approximately Rs. 9— 11 lacs ($18,000- $22,000)…Therefore income from this employment is very important for [the applicant] and her family.

8. The applicant provided the following relevant statement from John Apokoroniotakis, the owner of Melissa Cakes, Thornbury:[1]

   [1] Which was also provided to the department.

   The position of Cafe or Restaurant Manager was approved by the Department on 24/11/2014 and [the applicant] was employed as restaurant manager after the grant of her 457 visa in March 2015.

   I confirm that she has been legitimately employed in the nominated position and that she has been responsible for performing the following job duties:

   1)Managing, organising, directing and controlling the day to day operations of our restaurant business.

   2)Inventory: She is responsible for inventory control as it is critical to controlling food costs and improving profitability. She is required to undertake inventory checks on daily basis.  For some items, it is to be done daily, for others at least every alternate day.  She is responsible to clean out and organize the stock areas before taking inventory.  She is responsible for disposal of items that have expired, move similar items to the same place and in tidy up the storage. We have a policy to use the same staff to take inventory to ensure efficiency, accuracy and consistency. She then reports to the director for final order placement

   3)Customer Service and complaint handling: For any restaurant, great customer service is essential to its success. We believe that good customer service simply means being available. Customers who can see managers are more likely to give opportunity to the customers for making requests for food and beverage.  Customer should never have to walk into the counter to ask for something or to scream for an order.  Just by being visible, we make customers feel they are having a better experience because they know if they need something, we are right there, available to help.  [The applicant] does an exception (sic) job of being available at the floor and ensures that she:

   i.greets the diners the minute that walk in the door.

   ii.provides advice and assistance to our customers and is thoroughly versed with the menu

   iii.listens to customer's complaints and negotiate a solution quickly that is acceptable to both.

   iv.encourages positive and friendly atmosphere.

   4) Serve in any capacity:  In hospitality industry, a restaurant manager is required to serve in any capacity within the restaurant as needed due to associate absence and perform related duties and assignments as required.  [The applicant] is responsible to perform some duties in such situations which includes:

   i.taking orders directly from the customers, particularly those with special dietary requirements.

   ii.inspecting and cleaning cutlery to ensure hygiene

   iii.attending to accidental spills and maintaining cleanliness

   iv.bill settlements and eftpos transactions

   v.attending phone calls

   5)Menu planning: She takes a lead role in planning menu and weekly specials along with the whole team, based on market demand, season and feedback from our customers.

   6)Training staff: making sure that all staff are fully trained and keeping staff motivated to provide the highest standard of service

   We have another staff member Maria who has joined our restaurant in September 2015 (six months after [the applicant].  Her position is a barista but assumes the position of manager in the absence of [the applicant].  Maria is responsible for making coffee, handling cash transactions and cleaning and assisting [the applicant] in any form for efficient management of our restaurant. We would like to clarify that department officer wrongly assumed that "[the applicant] required authorisation from Maria such as in requesting keys, or that she is not confident enough that she requires to be partnered up with".  In fact Maria often assists [the applicant] for mundane tasks.  For example, on the day of visit by department officers, [the applicant] asked Maria to provide her the office keys from behind the counter.  It would be reckless to consider this act as "taking authorisation", whereas it is simply a gesture of directing/requesting another employee to hand over the keys from behind the counter.  We confirm that [the applicant] is a very confident and is able to perform her duties autonomously.  Not only are we within our rights, but also it is industry practice that restaurant manager’s work in a team and never work in isolation.  Hence it would be inappropriate to consider a restaurant manager to be working at a lower skill for being assisted by team member.  Additionally, we are paying an annual salary in the order of $55,000 + super to [the applicant].  We could have hired someone on a much lesser salary if we had to employ someone on a lesser skill.  Additionally, Maria is not a fit person for the position of manager as she lacks formal qualifications and has highly under-developed customer service skills.  Additionally, we have recently experienced behavioural problems with her, for which she has been warned for indulging herself in conflict situation with other employees.
   We confirm that [the applicant] has always complied with her visa conditions as she has always carried out her duties as described above.  We therefore request your office to consider not cancelling her visa as this will have an adverse impact on my business.  [The applicant] has been associated with us for nearly one year and nine months and has major responsibilities to run my restaurant business efficiently.  In her absence, it will be impossible for us to employ and train a replacement immediately. My business will be adversely affected and will de-motivate my staff who work as a team.

1. Also provided were: a letter from Dorset Rehabilitation Centre regarding the applicant’s husband’s employment as a ‘patient services and food services assistant’ since 11 January 2010; a sample of the applicant’s pay slips from Melissa Cake Thornbury; and a letter from a doctor (undated) that the applicant consulted in India about IVF treatment.

2. The applicant appeared before the Tribunal on 15 June 2017 to give evidence and present arguments.  Her husband also attended the hearing.  He did not give evidence.

3. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

4. Following the hearing the applicant provided a further submission in which she relevantly and additionally contended:

   First thing is I have been given more than seven months or I had time for seven months to do submission but I do have lack of guidance by agent to submit the submission, Guidance should have come through the agent but it did not come. I don't want claim anything at this point on his service. This is my fate. First of all I did not know why immigration come to promises and why they have targeted the staff. According to my role and my self was going good as I am genuinely working at the premises and looking after the restaurant as Cafe or Restaurant Manager since my visa granted, the visa granted on 20th Feb 2015.

   When I have received the invitation to comment from Tribunal I immediately have submitted explanation to our agent so here I have genuine intention and I have not have any remarks at the premises. However, I coming to the topic there is a huge mistake happened at the hearing date “my employer could not come to the hearing as he was sick.  But tell you truth employer wanted to come to tribunal, however employer wishes to come to the tribunal or will be available in phone to give the witness any time if tribunal wishes to contact so.

   Being a woman and have studied in Australia for long time I have got job offer in Australia as a Cafe or Restaurant Manager, and visa was granted and working with him as Cafe or Restaurant Manager all of sudden visa has been cancelled by border protection officers led me to come to the tribunal.

   At the hearing, there was some communication happened, and there some "yes's", "no's" and "Silent mode's" due to miscommunication happened. And also some questions asked by tribunal member weren't taken by me to answer at hearing. Also I wasn't aware of to bring the evidence to tribunal as I wasn't told by my representative. Due to this I am to submit and explain the situation evidence as follows below:

   ·Asking about roaster that how u prepare? : My answer was I prepare roaster with owner (john) hand over paper to staff member. This answers means "it is regarding the cost effective and capability of the person we going to hire. But I have to give importance to the owner as business falls in small business industry and also owner will work very closely with the staff where there are some unofficial conditions to follow the owner directions. To meet the criterion of owner guidelines every staff will take the suggestion before they go- a- head. I do same thing as well. When I prepare the staff roaster I will prepare the roaster for main permanent staff as they won't change much unless until if some permanent employee have sick call. So there is only one issue with casual staff 'waiters and kitchen hand' once I take the notes in to the paper I will decide the staff to be working for the whole week against the previous year sales data and any orders or functions, also I have to see the cost to hire the staff as well when I prepare the roaster that roaster (rough roaster) goes to owner and comes back in official format through the paper print from owner.

   ·Next topic is Member has asked me whether I would do training to staff. I will do training to the casual staff and new staff if any one joins in the restaurant depends upon the teaching information required I will explain the plan of the premises, occupation health and safety and other requirements of according to the staff. As these basics completed at first stage I will give proper training if required to any staff with in my parameters. At last if any training g required extra out of my parameters I will assign other staff to train the trainee depends up on the staff and designation. During the training I fill the training form which has trainee information including the training the information in the form of questionnaire.

   ·Other topic was menu planning is huge topic and it will depends on the size of the order and no of patterns attending the function, also customer plan. Always I will discuss with customer with party plans' against the budget and then I will discuss with head chef. If anything extra menu need to be added by customer request I used to make the menu and discuss with chef for further consent sometimes I used to take the owner consent as well. Also I will make the menu for daily according to internal stock which is cross checked by chef this always depends on the day and weather as well, this menu will be displayed in the restaurant temporarily for some time. This is vital role and challenging role for me. There are no Paper print messages or email that I have made and remember but sometimes if there are any situations where chef are not available or owner is not available if there is crucial decision to take for big functions orders I used to call sometimes I used to Paper print to chef and owner. But I did not have any evidence on me to submit at this stage. I am enquiring with other staff to find out whether they have any evidence of my Paper prints regarding the menu. But menu always happen on face-to-face on the restaurant brochure given directly to customer with cost^.

   ·Member has asked about the evidence of complaints report, usually complaints comes by staff as they are primary members to get the customers and staff bring the customer or staff will take me to customer to deal, however Twill solve the problem if it is minor. If any majors such as food smells or accidents immediately I will record them in to incident report book to rectify next day or so.  Otherwise I will take this in to owner notice to fix it as soon as possible. Sometimes even I will take to complaints from staff as if any hazards found in the restaurant while they working or those hazards uncomfortable them. Those hazards will be written in incident book^° and discuss with the owner if owner is available or I will fix myself with my best ability.

   ·Member has pointed that why I did not give the evidence to Immigration on that day when officers try to investigate. The day Immigration officers have come to the premises that was chaotic I did not know what was going in the premises till they have started investigating. However I have given proper information which is available on me at that stage. Owner wasn't there to disclose everything whatever they have asked. I never experienced previously and I did not have guidelines from the owner to give all the information to Immigration. I was just employee and as Cafe or Restaurant Manager holding some menus at that time. My brain wasn't working and all other staff are looking at me. That was embarrassing situation happened very quickly. I did not know how the time past. Even I did not believe that they were real immigration officers till I have received the e-mail from the department of Immigration. I can say that was different kind of pressure I come through which can't be explained led to the visa cancellation.

   Above were explained as member wasn’t happy and raised that as there is no evidence, except these if I am happen to explain further about my roles and responsibilities and the evidence of my employment as restaurant manager.

   ·I always involve in maintaining records of stock levels and financial transactions, as I was independent and responsible from these responsibilities because there is an evidence in the restaurant as everyday stock reports written and recorded. Further there are lot of evidence of financial transactions taken and dealt by me. And also owner is evident where he can give witness as I always used to hand over the financial matters end of every single day of the business.

   ·And also I am best in ensuring dining facilities comply with health regulations and are clean, functional and of suitable appearance, I do have passion as I am very neat woman to keep the restaurant clean at every place.  I have some letters in this year to owner which are usually dropped at counter to change recommendations make the dining facility looks good and safety for customers.

   ·  I am always interested and very active in planning and organising special functions, I always look for the special functions happen in the restaurant as I am interested to organise the seating and organising the catering plan, also I used to organise the staff and guidelines for staff at the functions who and what responsibilities to be taken to the function or party success which gives the customer happy.

   ·  I was quick and active person on the floor to collect the satisfaction of the staff service and also ask the taste of the food served. And also ask whether food is delivered in expected time of customer. Then I used to warn the chef and staff with the letters through the owner only as this is sensitive for the premises'''. Incident report book usually checked by the owner for further action on any object or subject. This is how I was trained by owner when I was appointed as restaurant manager.

   ·I am very polite woman and mature woman to show my face to greet the customers, and also I always supervise staff as I don't want time wasted by staff. I always get something done by staff even business is slow. That kind of person I am. That is the reason Owner has recalled me for the job even though my visa has been cancelled. He got my work rights back and hired me back in the premises as restaurant manager

   I am a genuine worker on 457, innocent and working honest.  And endeavoured for business development for two years. If anything between restaurant owner and Immigration, Immigration should have cancelled the owner standard business sponsorship. But Immigration officers have ceased my visa is paining me where there are no words to explain the pain. Sometimes I feel myself suicide attempt as I was blamed without any reason. Owner doesn't understand! Agent doesn't understand! I don't have much knowledge to deal the case with immigration and Tribunal. Immigration did not understand!  Who will be listening my outcry? Trying to do the submission with available sources and available knowledge. Whenever some situation comes up I am trying to explain with evidence to immigration and tribunal, if situation doesn't help how it is possible.  I was hapless.  Agent takes the monte for hearing and application but he asks us to do the submissions.  I have taken one month to the submission. When I write the letter he modify and submitted to tribunal.  I could not find procedure fairness in this process. So I will beg the tribunal member to behold my situation and help in this issue to remit my cancellation to immigration reconsider where I could be given two months' time to find other employer or leave the country. At least I can have access to come back Australia in other pathway if I am eligible if my cancellation is reconsidered.  Otherwise I will be left as victim forever.

5. In support of her claim to have been genuinely working a Restaurant Manager the applicant provided: a document tilted ‘New Staff Training and OH&S’; 13 diary entries relating to repairs; stock levels, rosters, functions and orders; copes of menus and specials; and her taxation Notice of Assessment for the year ending 30 June 2016 which shows a taxable income of $53,870.

6. Also provided was a letter from the owner of Melissa Cakes & Café, Thornbury, Mr John Apokoroniotakis dated 19 June 2017 explaining that he was sick the day of the hearing but was ready to attend another hearing and/or was available to answer any questions by phone and that the applicant was genuinely working as a Café or Restaurant Manager.  A medical certificate was attached to this letter.

   Jurisdiction of the secondary applicant

7. 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 other applicant’s visas 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 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 him.

8. 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

9. 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?

10. 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 8107 was attached to the applicant’s visa. This condition relevantly requires that the visa holder must ‘work only in the occupation listed in the most recently approved nomination for the holder’.

11. On the basis of the information before (contained in the Notification of Cancellation and the primary decision, copies of which the applicant provided to it), the Tribunal finds that the applicant was granted a subclass 457 visa on 20 February 2015 to occupy the position of ‘Café or Restaurant Manager’ for Zaxaroplatio Pty Ltd.  The Tribunal therefore finds, based on this information, that the occupation listed in the most recently approved nomination for the applicant is that of ‘Café or Restaurant Manager’.

12. As noted above a hearing was conducted by another Member in a differently constituted Tribunal.  Having carefully listened to a recording of the hearing and having read a full transcript, this Tribunal did not consider a further hearing was required.

13. In arriving at its view as to whether the grounds for cancellation have been made out the Tribunal has also carefully read the handwritten report of the departmental officers’ site visit to the sponsor on 8 January 2016.

14. The issue in his case is whether the applicant was working in the nominated occupation of Café or Restaurant Manager.  To assist in this determination the Tribunal notes that the Australian Bureau of Statistics published Australian and New Zealand Standard Classification of Occupations (ANZSCO) lists the tasks of a Café and Restaurant Manager (code 141111) as:

    ·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

15. The Tribunal’s view of the applicant’s oral evidence is that it was clear and, when she sufficiently understood the questions, was given without hesitation.  For the most part it was consistent with the notes recorded by the department investigation officers.  For example the applicant was able to clearly explain when the restaurant was open, how many people staffed each shift; the front of house staffs’ names;[2] the kitchen staff headed by Billy the Chef; and the restaurant’s seating capacity’.  However, acknowledging that the applicant would likely have known these things even if she were not employed as a Café or Restaurant Manager, the Tribunal has considered her evidence in relation to the range of duties set out above.  Based on the oral evidence provided, some of which was supported by written evidence provided after the hearing, the Tribunal is satisfied that the applicant did: plan menus in consultation with the Chef, in particular the range of special menu items that changed regularly; plan and organise special functions; maintain stock levels; ensure dining facilities are clean, functional and of suitable appearance; conferred with customers to assess their satisfaction with meals and service; trained and supervised wait staff; and took reservations, greeted guests and assisted in taking orders.  The Tribunal’s impression was that the applicant had a very thorough knowledge of the staffing and operational matters of the restaurant.

    [2] Although it appears that has been several staff changes since the date of the department’s visit.

16. In a letter provided to the Tribunal, the restaurant owner, John Apokoroniotakis, states that the applicant managed, directed and controlled the day to day operations of the restaurant; that she was responsible for all the inventory; dealt with all customer service and complaint handling; did the menu planning and trained staff.  This is broadly consistent with the applicant’s evidence although hers was more detailed.  What is apparent from both the applicant’s and Mr Apokoroniotakis’ evidence was that the applicant was not responsible for arranging the purchasing and pricing of goods or the selection of staff.  The applicant’s evidence was that Mr Apokoroniotakis did this.  The Tribunal believes this supports the credibility of the applicant’s evidence rather than detracts from it as, in its view; she did not attempt to embellish or exaggerate her duties to fit wholly within the ANZSCO duties.

17. The Tribunal notes that over the 12 or 14 hours that the restaurant was open each day that Mr Apokoroniotakis was on site each day and, in these circumstances, the Tribunal does not think it unusual that, as the franchise owner, he would assume the tasks of staff selection and financial management and that he was assisted in these tasks by his sister Athena who was also sometimes in the restaurant.  However the Tribunal formed the view, on the evidence before it, that the applicant was operating and directing the functions of the restaurant when she was on duty, as the restaurant manager, and that she was performing a significant majority of the tasks of a restaurant manager occupation as listed in ANZSCO.

18. The Tribunal also places weigh on Mr Apokoroniotakis’ evidence that he would not be paying the applicant $55,000 per annum as a restaurant manager if she was not performing this occupation given the relative economy of employing general wait staff at a much cheaper rate.  The pay slips provided to the Tribunal confirm the applicant’s salary of $55,000 which equated to $1,711.48 net per fortnight.

19. The department investigators appeared to place significant weight on their observation that they witnessed the applicant asking Maria if she could use the office and for the keys.  The applicant has consistently and emphatically denied this and said she was simply asking Maria to hand her the keys.  The Tribunal also notes that the officers appeared to place weight on the fact that they observed the applicant taking orders but notes that this was dinner period and that it would not be unusual, in a small establishment, for everyone to help with serving customers.  In any case ‘may take reservations, greet guests and assist in taking orders’, is one of the duties listed in ANZSCO, so the Tribunal places no weight on any negative observations from the investigators about this.

1. The Tribunal records that although the applicant did not request an interpreter at the hearing, she clearly had difficulty understanding all of the questions asked and, on many occasions, had to have them both repeated and explained more fully.  It was only after they were clearly explained that she was she able to give accurate evidence.  It also records that no interpreter was used when the department investigators interviewed the applicant in an unannounced visit and notes that some similar communication problems may have occurred.  While the notes record that Maria advanced herself as ‘the manger for this shift”, the Tribunal accepts the evidence of the owner that she had never been employed as the restaurant manager but did act as such is his or the applicant’s absence.  In fact it becomes clear later in the investigators’ notes that there was no doubt that Maria was employed as a barista given an officer asked “when Maria goes on break who makes coffee?”.  The notes also record Maria as saying “[the applicant] might be manager - she works nights” and yet no weigh appears to have been placed on this.  Despite this it appears from the site visit notes that the applicant did refer to Maria on several occasions as being a manager although she denied this at the hearing as has the business owner, both saying Maria was never employed as a manager.  Given the consistency of the applicant’s evidence in this regard, it has determined to place greater weight on the evidence before the Tribunal that the applicant was the only person employed a manager.

2. Finally, the Tribunal notes that as a result of this site visit the sponsor’s standard business sponsorship was cancelled and the business was barred for a period of 12 months.  The sponsor did not appeal this bar and the business now appears to have ceased operations.  While in some situations the Tribunal may draw an adverse imputation from this, in this case the Tribunal does not accord any negative attribution on this review, especially noting the medical letter provided attesting to the business owner’s mental health problems.

3. In weighing all of the evidence before it, the Tribunal is not satisfied that the applicant breached condition 8107 because, on balance, it is of the view that the applicant only worked in the occupation listed in her most recently approved nomination.

4. 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

5. 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.

6. The Tribunal has no jurisdiction with respect to the second named applicant.

   Karen Synon
   Member