Wang (Migration)

[2021] AATA 2335

Wang (Migration) [2021] AATA 2335 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jing Wang
Mr Qingwei Liu
Miss Haoyu Liu
Master Haoyu Wang

CASE NUMBER:  2014292

HOME AFFAIRS REFERENCE(S):          BCC2020/1612313

MEMBER:Vanessa Plain

DATE:18 June 2021

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 other applicants.

Statement made on 18 June 2021 at 12:31pm

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant did not work only in the occupation listed in the most recently approved nomination – position performed at a lower-skilled level – applicant not present during site visit – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, Schedule 2 cl 457.223; 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 18 September 2020 made by a delegate of the Minister for Home Affairs 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 the basis that the applicant breached condition 8107(3)(a)(i) on the basis that the applicant did not work only in the occupation listed in the most recently approved nomination. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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 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 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 them.

4. The applicants appeared before the Tribunal on 18 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr David Fan, the owner of the applicant’s former employer Golden DD Catering Pty Ltd.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. 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

8. 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?

9. 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.

10. The Delegate’s decision record contends that the applicant has not complied with subclause (3)(a)(i) of condition 8107 attached to their subclass 457 (Temporary Work (Skilled)) visa, which states:

    “8107

    (3) If the visa is, or the last substantive visa held by the applicant was, a subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4) (as in force before 18 March 2018):

    (a)the holder:

    (i)   must work only in the occupation listed in the most recently approved nomination for the holder; and

11. The Delegate’s decision record of 18 September 2020 provides as follows:

    “The standard business sponsor who nominated the visa holder in the most recently approved nomination for the visa is GOLDEN DD CATERING PTY LTD (the sponsor), who applied to nominate the visa holder to work at 1 View Point, Bendigo in the occupation of Cafe or Restaurant Manager (ANSCO 141111). The sponsor certified that the tasks or duties of the nominated position included a significant majority of the tasks of the nominated occupation as specified in ANZSCO or the legislative instrument. Specifically, the sponsor certified that the tasks or duties of the position would include:

     Planning, directing, controlling and coordinating of the restaurant, in-room dining and conferencing operations

     Rostering and recruitment of Team Members

     Ensuring excellence and consistency in guest service

     Ensuring your team delivers a fantastic guest experience through your commitment to developing innovative products and service

     Arranging the purchasing and pricing of goods according to budget

     Maintaining records of stock levels and financial transactions

     Beverage and wage cost control etc

    The tasks or duties associated with the occupation of Cafe or Restaurant Manager are specified in ANZCO. They 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 delegate assessing the application determined the tasks associated with the position were appropriate tasks commensurate with the occupation of Cafe or Restaurant Manager and approved the nomination on 23 April 2018.

    On 23 October 2019, a delegated officer from the Sponsor Monitoring Unit (SMU) of the Department attended the sponsor's worksite, interviewed employees and observed the business. They observed that the restaurant had more than one manager and noted due to the nature of the business, you were unlikely to complete the functions of a manager at their full capacity, and those which were being performed were occasional in matter.

    Therefore, they determined that the position you perform is a lower -skilled role than that of restaurant manager and is more closely aligned to that of a waitress, with minor supervisory duties.

    Based on this information, it appears that a significant majority of the tasks of the visa holder’s position are inconsistent with those specified for the nominated occupation of Cafe or Restaurant Manager. It appears that a significant majority of the visa holder’s tasks involve primarily general duties in like with a front of house waitress role, such as order taking, delivery of drinks and general tasks outside of the scope of the nominated role. This appears to indicate that the visa holder has not complied with subclause (3)(a)(I) of condition 8107 attached to the visa because it appears the visa holder has not been working in the occupation listed in their most recently approved nomination. As such, there appears to be grounds for cancelling the visa under s116(1)(b) of the Act because it appears the visa holder has not complied with a condition of the visa.”

12. A Notice of Intention to Consider Cancellation dated 1 July 2020 (NOICC) was sent to the applicant at their nominated address.  The applicant responded in writing on 4 July 2020 and 20 July 2020.  The applicant’s responses clearly set out that the applicant strenuously disagrees with the contention that they breached their visa condition.  

13. On 1 June 2021, the Tribunal invited the applicant to attend the Tribunal to give evidence and present arguments on 18 June 2021.  The invitation directed the applicant to provides documents to the Tribunal that the applicant proposed to rely upon in support of their case.  The Tribunal has read and considered the documents submitted by the applicant. 

14. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the Tribunal hearing. The Tribunal informed the applicant that their visa was cancelled under s.116(1)(b) of the Act as the delegate concluded that they had not complied with the conditions of their visa. Specifically, the 8107 condition to which their visa was subject, prescribes in 8107(3)(a)(i).

15. The Tribunal further explained to the applicant that, if satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

16. Given the extensive nature of the applicant’s responses to the NOICC, Tribunal asked the applicant to describe her role at Golden DD Catering Pty Ltd by reference to the ANZCO criteria (141111) applicable to occupations as a café/restaurant manager.

17. The applicant gave the following concise and extensive evidence:

    (a)They worked for Golden DD Catering Pty Ltd (the Business) as the restaurant manager between February 2019 and September 2020.  Their employment there finished when their visa was cancelled, because they were advised by their solicitor that they could not work given the visa cancellation.

    (b)They worked as the restaurant Manager.  There were seven other staff at the Business, but they were the only manager there.

    (c)Planned menus in consultations with the chefs.  They stated that they routinely attended to that task of liaising with the chefs.  They created new menus because there are weekly specials, so they would discuss with the chef to decide on the items and then speak with the owner to decide on the pricing.

    (d)Planning and organising special functions.  They said they planned and organised functions on a weekly basis prior to March 2020 when there was the option of in house dining.  Specially that would include speaking to the customer about whether there is any special dietary requirements or food allergy and the theme of their banquet and decoration of the venue.  Sometimes clients wanted a dish that isn’t on the menu and they would offer to create a special menu and then they would charge a 10% deposit to secure the booking.

    (e)Arranging for the purchasing and pricing of goods according to budget.  She stated that she was in charge of that.  She checked inventory on a daily basis.  Inventory included dry ingredients and alcohol products.

    (f)Responsible for maintaining stock levels and financial transactions.  She stated that inventory is a very important task, and they work on principle of first in first out. Goods that came in first must be consumed first, this ensures smooth operation of restaurant and to cut costs.  She stated that she is the one liaising with the suppliers, she makes orders over the phone and signs up their deliveries.  She receives the invoices every 2 to 3 delivers. She then obtains authorisation from the owner as to payment and then approves the payment to the suppliers.     

    (g)Ensuring dining facilities comply with health regulations and are clean , functional and of suitable appearance.  She stated that she organises weekly deep cleaning thoroughly and on a daily basis she checks employee appearance and cleanliness of plates and cutlery. 

    (h)Conferring with customers to assess their satisfaction with meals and service.  She stated that this is her primary responsibility.  Usually she speaks with diners at the conclusion of their meal and seeks their feedback as to the overall experience and whether they enjoyed the meal.  She takes detailed notes of feedback and gives out complimentary tea as token of appreciation.

    (i)Selecting, training, and supervising waiting and kitchen staff.  She stated that she’s responsible to draw up the roster for all staff members and she recruits them too.  If kitchen staff have certain technical questions, they consult the chef, not her.  She stated that she has training related tasks to attend to, such as personal safety, use of delivery platforms, health and cleanliness related training for the staff, how to use the payment facilities and close up the restaurant at the end of the day.  The personal safety part of the training is the most important, employees mustn’t run with plates and must wear special shoes with anti-slip soles.  She ensures any spillage is cleaned to prevent falls and anything over 20kgs must be carried by 2 people.         

    (j)May take reservations, greet guests and assist in taking orders.  She stated that she only greets the guests in the front when the restaurant is extremely busy, but she takes reservations and enquires about dietary requirements. 

    (k)She stated that when the officer from the Sponsoring Monitoring Unit attended the business on 23 October 2019, she did not speak with that individual because she was not rostered on to work that day.  Her employer proposed that the applicant could be contacted via telephone, but she was not. 

    (l)She stated further that it is unlikely that she would undertake waitressing tasks as her role as manager keeps her busy given the volume of matters she needs to attend to.        

18. The Tribunal heard evidence from Mr Fan, the owner of the restaurant.  Mr Fan said that he spoke to the SMU representative when they attended the business and the applicant was not working that day.  He stated further that he heard the evidence of the applicant and agrees with the characterisation of her work duties.

19. The Tribunal places significant weight upon the evidence of the applicant.  There is no reason why that evidence ought not be accepted, especially in circumstances where the SMO representative has not given evidence and did not interview the applicant at the restaurant.  It may be inferred from the delegate’s decision record that the SMO representative formed a subjective opinion and made inferences about the nature and role of the applicant’s employment, based upon their observations of the restaurant during their brief visit.  These inferences are outweighed by the direct evidence of the applicant and Mr Fan, which the Tribunal finds to be credible and reliable. 

20. 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

21. 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.

22. The Tribunal has no jurisdiction with respect to the other applicants.

    Vanessa Plain
    Member