Wang (Migration)

[2023] AATA 3665

Wang (Migration) [2023] AATA 3665 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fei Wang

CASE NUMBER:  2303772

HOME AFFAIRS REFERENCE(S):          BCC2022/5697660

MEMBER:George Hallwood

DATE:3 October 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

Statement made on 03 October 2023 at 4:51pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – compliance with conditions – only work in nominated occupation – café or restaurant manager working as cook or waiter – COVID-related staff shortages – performing role as manager even when covering shortages – ground not established – only work in position in nominator’s business – director of own business with advice and support of sponsor, and advice of agent – ground established – discretion to cancel visa – sold business as soon as breach realised – length of residence and otherwise good visa compliance and work record – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8607(1), (2)(c)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2.    This visa enables employers to address labour shortages by bringing in skilled workers where employers can't source an appropriately skilled Australian worker.

3. The delegate cancelled the visa under s 116(1)(b) on the basis that the visa holder had not complied with condition 8607 imposed on his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The applicant appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

1. 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?

s 116(1)(b) - non-compliance with conditions

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 8607 attached to the applicant’s visa. This condition relevantly requires that the holder of the visa must: only work in the nominated occupation for which the visa was granted (8601(1)); and, only work in a position in the nominator’s business (8601(2)(c)).

Only work in the nominated occupation

8.    On 27 May 2021 Bravo Fratello Pty Ltd (trading as ‘Kingdom Chinese Restaurant’) lodged a nomination application for the occupation Cafe or Restaurant Manager – ANZSCO code 141111. This application was approved on 5 July 2021. The ANZSCO description of this occupation includes:

UNIT GROUP 1411 CAFE AND RESTAURANT MANAGERS

CAFE AND RESTAURANT MANAGERS organise and control the operations of cafes, restaurants and related establishments to provide dining and catering services.

[…]

Tasks 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

Occupation: 141111 Cafe or Restaurant Manager

9.    On 5 July 2021 the applicant lodged a Temporary Skill Shortage (subclass 482) visa application for the occupation of Cafe or Restaurant Manager sponsored by Bravo Fratello Pty Ltd. The visa was granted by the Minister’s delegate on 7 September 2021 subject to conditions including condition 8607.

1. Australian Border Force (ABF) monitored the nominator’s business between October and December 2022 and relevantly found that Mr Wang had been used to fill shifts in the restaurant as a cook or a waiter when there were staff shortages, and there was little evidence that he had performed the tasks associated with a Restaurant Manager.

2. At the hearing Mr Wang told the Tribunal that he had been a restaurant manager in China for five years prior to coming to Australia. He arrived in Australia with his family in October 2013 having been granted a sponsored Temporary Work visa to work as a restaurant manager. He has continued to work in this role with various employers and on various visa types prior to his application now before the Tribunal as a Restaurant Manager with Kingdom Chinese Restaurant. The restaurant holds about 100 people and has a front of house staff of up to 15 people with a total staff of 20 people.

3. Mr Wang told the Tribunal that during the COVID-19 pandemic up to half of the staff were not available for some shifts and when that occurred, he would spend some of his shift doing kitchen or waiting work. When asked how many times that had occurred during the pandemic, Mr Wang stated maybe two or three times. Mr Wang also told the Tribunal that during the pandemic the business did not operate, or only opened for half the time. He was required to manage this as he was the Restaurant Manager, and so he would only work half time when the business was only operating half time.

4. The Tribunal asked Mr Wang if the owner of the restaurant took over the management sometimes. He said that the owner did not, and that he, Mr Wang was the only manager of the restaurant until his visa was cancelled and he was not allowed to work until he appealed to the Tribunal.

5. The Tribunal is satisfied that Mr Wang was performing his role as the Restaurant Manager, even when he was filling shifts during a period when many staff were unavailable. The Tribunal accepts that most Restaurant Managers would have done the same during the pandemic.

6. For these reasons the Tribunal is satisfied Mr Wang was only working as a Café or Restaurant Manager: 8601(1).

Only work in a position in the nominator’s business

1. The ABF monitoring found that the applicant had set up and worked in his own food business, with the advice and support of his sponsor, and was the Director of Excellent Corporation Pty Ltd, working in his own business called ‘My Mum’s Kitchen’.

2. At the hearing Mr Wang told the Tribunal that he had worked as a Director of Excellent Corporation Pty Ltd or worked in his own business ‘My Mum’s Kitchen’. For a period of time during the pandemic Kingdom Chinese Restaurant had to significantly shorten working hours for staff. He said that he continued to work full time but to only draw a part time wage. In order to support himself and his family Mr Wang asked his the migration agent if he could work full time for Kingdom Chinese Restaurant and also invest in another business, My Mum’s Kitchen. He was told that was not against the law. He bought My Mum’s Kitchen from a friend and had staff working there, but he would also help out if they got very busy. Most of the time all that he did was check up on how it was going.

3. It is clear to the Tribunal that during the extraordinary times of the pandemic, Mr Wang did what he could to manage his employer’s restaurant and maintain an income for himself and his family. This, however, did place him in a position where he did, from time to time, work for My Mum’s Kitchen as well as for his sponsor.

4. For these reasons the Tribunal is not satisfied Mr Wang was working only in a position in the nominator’s business: 8601(2)(c).

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

The purpose of the visa holder’s travel and stay in Australia

1. Mr Wang arrived in Australia as the holder of a Temporary Work (Skilled) (subclass 457) visa on 11 September 2013, to work as a Café or Restaurant Manager. He has continued to work in positions related to this occupation on temporary visas since that time.

2. On 19 December 2022 the Department wrote to Mr Wang informing him that his sponsor’s approval as a work sponsor had been cancelled, that his visa may be considered for cancellation, and that in order to remain lawfully in Australia he may need a new nomination by an approved sponsor.

3. On 8 February 2023, and prior to the cancellation of Mr Wang’s visa on 15 March 2023, Mr Wang lodged an application for a Temporary Activity (Australian Government Endorsed Event) (subclass 408) visa listing Excellent Corporation Pty Ltd as the proposer and the occupation of Café and Restaurant Manager (ANZSCO 141111).

4. It is evident from that most recent application that Mr Wang is seeking to stay in Australia, and potentially continuing to breach 8601(2)(c) of his Temporary Skill Shortage visa.

5. Mr Wang stated that during the COVID-19 pandemic he was not able to find another employer within the 60 days allowed so he thought it may be possible for the company he had bought to employ him. Once he realised he would not meet the conditions he sold the company on 25 October 2022. He told the Tribunal that he had lived in Australia for 10 years, he had always done his job as a Restaurant Manager properly and followed the advice of his migration agent. He stated that now he had lived here for so long he would like to continue living and working here and he would find it difficult to adapt to his old life if he returned to China.

6. The Tribunal is satisfied that Mr Wang has come to Australia and attempted to use his visa’s for the purpose for which they were designed, and that this would have succeeded but for the extraordinary circumstances of the COVID-19 pandemic.   

7. In these circumstances the Tribunal finds that the purpose of Mr Wang’s travel and stay in Australia weighs neither for nor against discretion not to cancel the visa.

The extent of their compliance with visa conditions

1. The visa holder’s sponsor was not found by the Tribunal to have employed the visa holder to perform duties outside the scope of his nominated occupation, which was in non-compliance with subclause (1) of visa condition 8607 imposed upon his Temporary Skill Shortage visa. However, Mr Wang was found not to have been engaged only as an employee of the sponsor as he was working for a company he had bought, which was in non-compliance with subclause (2)(a) of visa condition 8607 imposed upon his Temporary Skill Shortage visa. Mr Wang did not inform the Department of this.

2. The evidence suggests that Mr Wang complied with the conditions of a number of temporary work visas over his 10 years in Australia. References also suggest that he has worked hard and contributed at least what was expected of him.

3. Mr Wang admits that he made a mistake in performing some work with My Mum’s Kitchen and he told the Tribunal that he sold the business as soon as he realised he was in breach of his visa conditions.

4. The Tribunal finds that Mr Wang has a good record of compliance with visa conditions but was in breach of the conditions when he worked for My Mum’s Kitchen. This mildly militates against the Tribunal using its discretion not to cancel the visa. 

Degree of hardship that may be caused to the visa holder and any family members

1. The Department acknowledged a visa cancellation outcome would disrupt the visa holder’s employment obligations and impact on his ability to gain an income. This may affect the visa holder’s financial situation, which could lead to the visa holder experiencing financial hardship.

2. Mr Wang has primarily lived in Australia since 15 October 2013. His wife and daughter have also lived in Australia although his wife departed Australia on 25 January 2020, and his daughter departed on 26 April 2016. The Department acknowledged that a visa cancellation outcome may cause some emotional hardship to the visa holder.

3. Mr Wang stated that his plans to apply for a subclass 186 visa for himself and his family was completely disrupted by the COVID-19 pandemic. He had a vision to start a better life for his family in Australia, in particular his now 15 year old daughter. A previous sponsor had gone out of business and he and his wife decided that his daughter would be best living in China while he sorted out what he could do to renew hi visa. His wife has since joined his daughter in China and he has spent the last few years working in Australia hoping to sort things out for them. Mr Wang expressed that if he does not succeed to obtain the visa now he will have wasted 10 years of his life and a number of years away from his wife and daughter. He says his wife and daughter are waiting desperately to join him in Australia. Mr Wang did not mention any particular hardship facing him or his family in China.

4. The Tribunal finds this consideration weighs mildly in favour of the discretion not to cancel the visa.

The circumstances in which the ground for cancellation arose

1. Mr Wang worked for My Mum’s Kitchen, and by doing so was not engaged only an employee of his sponsor, leading him to be non-compliant with subclause (2)(a) of condition 8607.

2. The Department found no extenuating circumstances beyond the visa holder’s control that led to the ground of cancellation being enlivened.

3. The Tribunal is satisfied that the impact of COVID-19 on Mr Wang’s employment and ability to provide an income for his family was an exceptional circumstance. He also had to move from Western Australia to South Australia for work when the business he was working for closed down.

4. The Tribunal finds that this consideration weighs moderately against cancelling Mr Wang’s visa.

The visa holder’s past and present behaviour towards the Department

1. The Department, in their decision, found there to be no adverse information regarding the visa holder’s behaviour towards the Department, or departmental staff.

2. In the absence of any other information the Tribunal accepts the Department’s assessment of Mr Wang’s past and present behaviour towards the Department and give “a little weight against cancelling the visa”.

Any consequential cancellations that may result

1. Members of Mr Wang’s family unit, Ms Huaying Yu and Ms Meiyi Yu, also had their secondary Temporary Skill Shortage visas cancelled consequentially under section 140 of the Act.

2. The Tribunal finds the consequential cancellations offer a minor weight against cancelling the visa.

Legal consequences of a decision to cancel the visa

1. The primary consequence of the decision to cancel the visa is that Mr Wang would become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not depart voluntarily.

2. In addition, the cancellation will also place a limitation under section 48 of the Act, which means that the visa holder will have limited options to apply for further visas in Australia.

3. The visa holder may also be affected by Public Interest Criterion 4013, limiting the grant of a further temporary visa for a specified period.

4. Mr Wang stated at the hearing that his whole family has invested a great deal over 10 years and that the legal consequences could result in any chance of benefiting from the investment will be lost.

5. The Tribunal finds that this consideration carries a moderate weight against the visa cancellation.

Australia’s international obligations

1. Delegates should assess whether Australia would be in breach of its international obligations if the visa was cancelled. These include the obligations in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (the Protocol), the International Covenant on Civil and Political Rights (the ICCPR), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC).

2. Mr Wang told the Tribunal that his daughter, Meiyi Yu, had only been in Australia for three years. He says that his daughter expresses a wish that she could be living in Australia with him.  

3. Mr Wang told the Tribunal that he does not fear for the safety of his wife and daughter in China. His biggest concern is just the long time that they have been separated.

4. The Tribunal does not consider that cancelling the visa would lead to a breach of Australia’s non-refoulement obligations under the Refugee Convention, or a breach of Australia obligations under the CAT, or the ICCPR. There is also no information before me to indicate that any other of Australia’s international obligations may be impacted by the cancellation of the visa holder’s visa.

5. The Tribunal gives this consideration no weight either for or against visa cancellation.

Any other matters

1. Mr Wang stated that he had closed his business in China before he came to Australia. Having invested so much over a decade, and being separated from his family for so long, Mr Wang indicated that he hoped to have an opportunity to obtain a visa.

2. The Tribunal finds that this consideration mitigates mildly against visa cancellation.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 482 - Temporary Skill Shortage visa.

George Hallwood
Member