Surjanto (Migration)

[2017] AATA 76

Surjanto (Migration) [2017] AATA 76 (9 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Christina Surjanto

CASE NUMBER:  1506032

DIBP REFERENCE(S):  BCC2014/3245468

MEMBER:Karen Synon

DATE:9 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 09 January 2017 at 11:45am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Exclusion period – Previous visa cancelled – Work as pastry cook – No compelling circumstances

LEGISLATION

Migration Act 1958, ss 65, 116

Migration Regulations 1994, Schedule 2, cl 457.224, Public Interest Criterion 4013

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 on 16 April 2015 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 November 2014. At the time the application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.457.224 was not met because she did not satisfy Public Interest Criterion 4013 (PIC 4013) because she was subject to an exclusion period of 3 years from 20 January 2015.

4. The applicant applied for review of the primary decision on 4 May 2015 and provided a copy of the department decision to the Tribunal.

5. The applicant appeared before the Tribunal on 30 November 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Nicholas Coulter, the applicant’s proposed 457 sponsor.

6. The applicant was represented in relation to the review by her registered migration agent who was present throughout the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant satisfies the requirements of PIC 4013 for the purposes of cl.457.224.

   Is the applicant affected by a risk factor mentioned in PIC 4013?

2. One of risk factors listed in PIC 4013 is ‘a person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Act’: PIC 4013(2). The department’s decision (a copy of which the applicant provided to the Tribunal) records that the applicant’s last substantive visa, a subclass TU-572 student visa was cancelled on 2 December 2014 under s.116 and that she was advised on 20 January 2015 that she was now subject to an exclusion period of 3 years.

3. At the hearing the applicant agreed that her subclass TU-572 student visa was cancelled on 2 December 2014 because she failed to be enrolled in a registered course.  She appealed this decision to the MRT but her cancellation was affirmed.  The applicant said her business course was cancelled by her provider who said they would open another course for her.  The Tribunal noted that it did not intend to re-examine the issues that led to her visa cancellation which had already been reviewed by the Tribunal (differently constituted).

4. Based on the evidence before it including the applicant’s oral and written evidence, the Tribunal finds that the applicant's visa was cancelled under s.116 of the Act on 2 December 2014. Her 572 (Vocational Education and Training Sector) visa is of a subclass specified in Part 2 of the 4013 Schedule because she did not comply with a condition specified in that Part being, 8202. The applicant is therefore affected by the risk factor mentioned in PIC 4013(2).

5. If an applicant is affected by a risk factor mentioned in subclause 4013(2) the application must be made more than 3 years after the cancellation of the visa or the determination of the Minister.  In this case, as the applicant’s visa was cancelled on 2 December 2014 and this application was made on 28 November 2014, the applicant does not satisfy PIC 4013(1)(a).

   Are there compelling circumstances?

6. In the alternative PIC 4013 can be satisfied where an applicant is affected by a risk factor provided for in PIC 4013(1)(b) if the Tribunal on review is satisfied that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen so as to justify the granting of the visa within 3 years of the cancellation.

7. The applicant gave evidence that she has a job here and would love to be able to stay and work here as a permanent resident.  She has been working at Saigon Sally as a Pastrycook since March 2014.  She worked there from March 2014 to November 2014.  From August 2015 to 8 November 2015 worked at a related group restaurant, Tokyo Tina.  On 9 November 2015 she returned to Saigon Sally where she still works.  She works about 36 hours a week.  Saigon Sally has 7 kitchen staff.  The Executive Chef is Adrian Li and Felix Goodwin is the Pastry Chef.  She works with Felix Goodwin; they are the only staff doing pasty and dessert.  The applicant said that in the past 7 years she has never worked with a group of people like them (the Saigon Sally staff) and if her visa is granted she wants to stay with them.  They appreciate and value their staff and she would not dream of working anywhere else.  The applicant wants another chance to stay here and keep working.  The applicant has a brother in Australia who is here on a student visa.

8. The Tribunal took witness evidence from Mr Nicholas Coulter, the Director of SBMK Restaurant Pty Ltd.  This group owns 5 restaurants including Saigon Sally and has grown rapidly since opening its first restaurant, Hanoi Hannah, in 2012.  Mr Coulter estimated the SBMK Restaurant Pty Ltd’s growth from a base of $2,000,000 turnover in 2012 to $9,000,000 turnover in 2016.  SBMK Restaurant Pty Ltd has future expansion plans and has some additional restaurant sites in the planning stage.  Saigon Sally opened in February 2013 and is a high end quality restaurant which is at the forefront of the dining scene with advanced cooking techniques.  Saigon Sally’s turnover last year was approximately $3,000,000.  This restaurant has 20 staff including 7 kitchen staff, 10 front of house and management and casuals.   There are no other 457 visa holders or nominees at Saigon Sally but other restaurants in the group employ 2 chefs on 457 visas and one restaurant has another chef nomination pending.  Mr Coulter said that staffing is the business’ biggest concern and with an overall staff of approximately 100 people, including 25-30 kitchen staff, their key staff are very important.  He emphasised that not every chef can do pastry and because Saigon Sally is the flagship of the Group and carries the other brands, it is very important that it produces top quality food.  Saigon Sally produces all the pastries and desserts for the other restaurants so there are only 2 pastry dedicated chefs for the whole group.

9. Mr Coulter gave evidence that the applicant is very important to the business and how difficult it has been in the past to recruit senior staff.  Their last advertisement was unsuccessful.  If the applicant is unable to continue working at Saigon Sally Mr Coulter thinks the overall food quality will drop and other staff will be put under pressure pick up the extra work especially Felix Goodwin as the entire pastry workload would fall to him and he may burnout and ultimately they may lose both their pastry staff.   The Group need to maintain key staff like the applicant to both ensure quality and support future growth.  He believes the applicant has the qualities and potential to be a Sous Chef.

10. The applicant’s representative contended that the applicant would be a big loss to the business and, while she works for a large business, it only has 2 pastry chefs.  He said Mr Coulter’s attendance at the hearing highlights the applicant’s value to the business.

11. The Tribunal has had regard to Departmental policy relating to the discretion to grant a visa during the 'exclusion period’[1] which states:

    [1] PAM3 Act – CCR Cancellation – General visa cancellation powers (s109, s116. S128 and s140).

29.4      Affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen

There may be compelling circumstances affecting the interests of such persons if the person was not granted the visa:

·a business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business

·civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness or

·an eligible New Zealand citizen would be unable to finalise legal and property matters associated with divorce proceedings without the physical presence of the non-citizen in Australia.

1. The Tribunal is not bound by department policy and these examples are neither determinative nor exhaustive of the circumstances in which the discretion may be exercised.  They do however provide a useful guide.

2. The Tribunal accepts the applicant’s evidence that she genuinely enjoys her work at Saigon Sally and does not want to work anywhere else as they appreciate and value its staff.  The Tribunal also accepts the evidence of Mr Coulter that the applicant is highly valued, highly skilled and an important part of the pastry team at Saigon Sally with the applicant and the senior pastry chef Felix Goodwin producing all pastry and dessert items for the entire SBMK Restaurant Ptd Ltd group of 5 restaurants.  The Tribunal found both the applicant and Mr Coulter to be sincere and credible in their evidence and finds Mr Coulter’s attendance at the hearing to be indicative of the high regard which the applicant is held.

3. However in considering the applicant's circumstances and the circumstances of her employer as presented at the hearing, the Tribunal considers that the language adopted in the Regulations of 'compelling' and 'compassionate' require a degree of gravity that is not demonstrated in the evidence before it in order to disregard the operation of the effective 'exclusion period' that is intended to apply where a person is the subject of a visa cancellation, and thereby justifying the grant of the visa during the 3 year period.

4. The Tribunal notes Mr Coulter’s evidence that the RBMK Restaurant Pty Ltd group has grown rapidly since opening its first restaurant in 2012 and that Saigon Sally, where the applicant is employed, opened in February 2013.  However the applicant has only worked at Saigon Sally for 6 months in 2014 and from 9 November to the present.  No evidence was provided that during the times the applicant was not working at Saigon Sally its profits or viability was markedly reduced.  There is no evidence before the Tribunal that the loss of the applicant’s skills would materially affect the profits or viability of the restaurant group.  Mr Coulter expressed concern that should they lose the applicant the overall food quality will drop and other staff, especially Felix Goodwin, may burnout so ultimately they may lose both their pastry staff and also that staffing is the business’ biggest concern so its key staff are very important and that not all chefs can do pastry.  However businesses, both large and small, regularly lose key staff for a variety of reasons and it is the Tribunal’s view that the cost and inconvenience to any business of recruiting, training and replacing a staff member, including highly valued and skilled staff, is an ordinary aspect of the operation of all business.

5. While the Tribunal accepts the applicant has the necessary skills required by her employer for the position of pastry cook and her employer would be inconvenienced if it had to find another person capable of performing the same job, Mr Coulter gave evidence that his group of restaurants has a large staff of 100 people including 25-30 kitchen staff and the Tribunal is not persuaded that applicant’s nominated position of pastry cook is such a highly skilled position that another person could not be recruited from the labour market.  It makes this finding notwithstanding Mr Coulter’s evidence that the applicant is very important to the business, it has been difficult to recruit senior staff in the past and that his last advertisement was unsuccessful.  This is not sufficiently persuasive for the Tribunal to be satisfied that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen so as to justify the granting of the visa within 3 years of the cancellation as it is not unusual for businesses to have to advertise several times and in different mediums to attract suitable candidates.

6. While the Tribunal accepts that the sponsoring business may face short term difficulty in replacing a valued employee such as the applicant, the overall evidence does not suggest that the business will thereby become unviable or not able to continue to grow and expand, or any other consequence that the Tribunal considers would amount to a compelling or compassionate circumstances affecting the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen.

7. Further there is no evidence before the Tribunal of any compelling circumstances affecting the interests of Australia, and the applicant confirmed at the hearing that she was not advancing any claims in relation to compelling circumstances that affect the interests of Australia.

8. The Tribunal notes the applicant’s evidence that she has a brother who is studying in Australia but as her evidence was that he was on a student visa he is not an Australian citizen, permanent resident or an eligible New Zealand citizen.  In any case the applicant made no claim that there were any compelling or compassionate circumstances that may arise in relation to her bother should she have to leave Australia.

9. The Tribunal has considered all of the information before it regarding the applicant's circumstances and the circumstances of her employer both individually and cumulatively.  The Tribunal considers that the language adopted in the Regulations of 'compelling' and 'compassionate' require a degree of gravity that is not demonstrated in the evidence before such that warrants disregarding the operation of the effective 'exclusion period' that is intended to apply in the ordinary case where a person is the subject of a visa cancellation, and thereby justifying the grant of the visa during the 3 year period.

10. .Consequently the Tribunal is not satisfied that compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen justify the granting of the visa within 3 years after the cancellation.  The Tribunal finds that the second circumstance in which PIC 4013 can be met where an applicant is affected by a risk factor is not met, and that PIC4013 is therefore not satisfied.

11. As PIC 4013 is not satisfied, the applicant does not meet cl.457.224 of Schedule 2 to the Regulations. This is an essential criterion for the grant of the visa, and the Tribunal therefore affirms the decision to refuse to grant the applicant the subclass 457 visa.

12. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

   Karen Synon

   Member