Sonia (Migration)

[2018] AATA 2492

Sonia (Migration) [2018] AATA 2492 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sonia Sonia

Mr Lakha Singh

Mr Kartik Singh

CASE NUMBER:  1731816

HOME AFFAIRS REFERENCE(S):           BCC2017/3700110

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 cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the remaining applicants.

Statement made on 06 June 2018 at 1:22pm

CATCHWORDS
Migration – Cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Whether the applicant worked in an occupation other than the occupation specified in the applicant’s approved nomination – Duties undertaken largely consistent with nominated occupation – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
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. Mrs Sonia is employed by a Mexican restaurant as a café or restaurant manager on a subclass 457 (Temporary Work (Skilled)) visa.  A condition of her visa is that she only work in her nominated occupation.

2. A delegate of the Minister for Immigration and Border Protection found that she had not been working in her nominated occupations, and was in breach of a condition of her visa. As a result, on 12 December 2017 the delegate cancelled her visa s.116 of the Migration Act 1958 (the Act).

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

4. 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 Mrs Sonia. The second and third named applicant’s 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.  This 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 and third named applicants.

5. 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

6. 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?

7. 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 attached to the applicant’s visa. This condition requires the visa holder must only work in the occupation listed in the most recently approved nomination for the holder.

8. In Mrs Sonia’s case, the most recently approved nomination in relation to her is for the position of café or restaurant manager. 

9. Whether Mrs Sonia was working in this occupation was the subject of an application by her employer LLHR1 for review of a decision to bar it from making an application for approval as a standard business sponsor for a period of two years.

10. In a decision of this same day, the Tribunal has set aside the decision to impose the bar, finding that Mrs Sonia was employed in her nominated occupation.  This was based on the evidence of Mrs Sonia and her employer.  Mrs Sonia was working at the premises during the site visit conducted by the Department.  She provided broadly consistent evidence about her role to that of her employer at hearing.  While the director of the company that employs Mrs Sonia is the chef who works in the kitchen and takes on much of the management of the kitchen, I did not consider this was inconsistent with Mrs Sonia performing the role of café or restaurant manager as she performs tasks such as setting prices, managing and recruiting staff, taking booking, ensuring customer satisfaction and occupational health and safety in the dining part of the restaurant. 

11. In comparing the description of her duties to the tasks of a café or restaurant manager in the Australian and New Zealand Standard Classification of Occupations, I was satisfied that the tasks being undertaken by Mrs Sonia were consistent with the tasks of the nominated occupation.  As a result, I am not satisfied she has breached condition 8107 that attached to her visa.  

12. For these reasons, I am not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel Mrs Sonia’s visa does not arise.

    DECISION

13. 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.

14. The Tribunal has no jurisdiction with respect to the remaining applicants.

    Kate Millar
    Member