Bhatti (Migration)

[2022] AATA 4767

Bhatti (Migration) [2022] AATA 4767 (20 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narpal Singh Bhatti

REPRESENTATIVE:  Mr Lorenzo Boccabella

CASE NUMBER:  2201551

HOME AFFAIRS REFERENCE(S):          BCC2018/1930658

MEMBER:Jason Pennell

DATE:20 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 20 October 2022 at 3.47pm

CATCHWORDS  

MIGRATION – cancellation – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – ground for cancellation – incorrect information in visa application – nominated occupation – Hairdresser – departmental site visit – decision under review set aside

LEGISLATION 

Migration Act 1958 (Cth), ss 101, 107, 109

CASES

Singh & Salindera v MIEA [1993] FCA 451

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 Home Affairs to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with s.101(b) of the Act by failing to fill out his application form in such a way that no incorrect answers were given or provided. 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. The applicant appeared before the Tribunal on 25 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Mr Navdeep Singh. With the applicants consent the Tribunal hearing was conducted without the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review.

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

Was there non-compliance as described in the s.107 notice?

1. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

2. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

3. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) of the Act. It is alleged that the applicant did not comply with s 101(b) of the Act by providing incorrect answers on his application for a Regional Sponsored Migration Scheme (Direct Entry) (subclass 187) visa – Application for Permanent Employer Sponsored or Nominated Visa dated 16 March 2015 (‘the visa application’).

4. Section 101 of the Migration Act states:

   Visa Applications to be correct.

   A non-citizen must fill his or her application form in such a way that:
   (a)     all questions on it are answered; and
   (b)     no incorrect answers are given or provided.

5. It is claimed that the applicant provided the following incorrect information on his visa application:

   (a)On page 5 of the visa application the applicant indicated his nominated occupation as Hairdresser.

   (b)On page 6 of the visa application the applicant provided the following answers in relation to his employment history:

   Has the applicant been employed in the past 10 years? Yes

   Give details of employment undertaken in the last 10 years.

   ·Position: Hairdresser

   ·Employer name: Mirrors Hair Studio

   ·Country: Australia

   ·Date from: 15 April 2014

   ·Date to: 15 March 2015

   ·Description of duties: Attached resume

   ·Is it employment related to the nominated occupation? Yes

Applicant’s Background

1. The applicant was born in Punjab, India on 3 May 1987. His parents worked as teachers and continue to live in India. The applicant has one brother, Navdeep Singh, who lives in Melbourne, Australia. The applicant claims that he attended school in Punjab. In 2008 the applicant completed a Bachelor of Arts degree from D.A.V. College in Jalandhar, Punjab, India. The applicant claims that for a short period after obtaining his Bachelor of Arts, he performed community work in India before traveling to Australia.  The applicant arrived in Australia in 2008.

2. In Australia, the applicant attended the Australia Institute of Technical Training from which he was awarded a Certificate III and a Certificate IV in Hairdressing and a Diploma of Hairdressing Salon Management in or about October 2011.

3. The applicant’s evidence was that after he arrived in Australia, and while studying to obtain his Hairdressing qualifications, he operated a taxi under the name of Bhatti, Narpal Singh (ABN:76 702 231 303).   

4. The applicant’s evidence was that he was not able to find a position as a hairdresser in Melbourne, Victoria. His evidence was that while he was looking for a position, he continued to work as a taxi driver. As such, he moved to Perth, Western Australia and applied for a position as a hairdresser with KPBS and K Pty Ltd (ABN: 81 158 178 619) (‘KPBS’). On 8 August 2013 the delegate refused this nomination on the basis that she was not satisfied that there was a genuine need for the appointment of a person to work as a hairdresser and KPBS dd not meet the criteria under reg 5.19(4)(a) of the Migration Regulations 1994.

5. On 29 June 2012 the applicant applied for a Regional Sponsored Migration Scheme (subclass119) visa. The delegate refused the visa application on 9 September 2013 because  the nomination by KPBS had not been approved.

6. On 16 February 2013, KPBS applied for approval as a Standard Business Sponsor. On 9 April 2013, KPBS provided an organisational chart to the Department which listed Mirror Hair Studio Joondalup, located at unit 2/80 Grand Blvd Joondalup Western Australia, as one of its salons. The sponsorship application was refused on 9 April 2013 because KPBS did not provide an auditable training plan as required to meet subregulation 2.59(e) of the Migration Regulations.

7. On 31 March 2014 Purple Allium Pty Ltd (‘Purple Allium’) (trading as Mirror Hair Studio) purchased the Mirror Hair Studio Joondalup from KPBS. The applicant’s brother Navdeep Singh is a director of Purple Allium. It was his evidence that the applicant introduced the business to him. He claimed that he initially purchased the business for his wife, who is a qualified beauty therapist. However, he claimed because of his wife’s pregnancy she did not commence work in the business. As a result, Purple Allium entered an employment contract with the applicant dated 23 May 2014 to work in the business.

8. On 1 June 2014 Purple Allium lodged a Temporary Business Entry nomination application which listed the applicant as the nominee for the occupation of the business. Based on the information provided the delegate approved the nomination application on 25 June 2014.

9. On 1 June 2014 the applicant applied for a temporary Skilled (457) visa. On 27 June 2014, the applicant provided information to the delegate that indicated he commenced work at Mirrors Hair Studio Joondalup as a hairdresser in April 2014. The delegate granted the Temporary Skilled (457) visa on 27 June 2014. 

10. On 12 March 2015, Purple Allium lodged a Regional Sponsored Migration Scheme nomination application which listed the applicant as the nominee for the occupation of Hairdresser.

11. On 16 October 2015, departmental officers conducted a site visit at the business premises of Mirrors Hair Studio Joondalup. The officers reported that upon their arrival the business was open but was unattended and there were no customers. The officer claims that they spoke to staff at the business who claimed that the applicant was not a hairdresser and that he was away on holidays with his brother Navdeep Singh. The staff claimed that the applicant had a supporting role in the business and his duties included cleaning the premises, making coffee, helping Navdeep Singh with organising pay, fetching goods for shops, shampooing client’s hair. It was claimed that he was not involved in cutting hair. The staff advised that the applicant worked Tuesdays to Fridays from 11.00 to 16.00 or 17.00pm, being 20 to 24 hours per week. It was claimed that the applicant had worked in the business since April 2014 but not as a hairdresser.

12. On 18 January 2016 the delegate sent Purple Allium a procedural fairness letter regarding the site visit. In response on 13 February 2016 Purple Allium provided the following documentation to the delegate:

    (a)An agreement of sale of business between Purple Allium and KPBS dated 4 March 2014.

    (b)A Mirror Hair Mobile Service business card with the applicant’s name.

    (c)A letter dated 9 February 2016 from the applicant’s representative to the WA Sponsoring Monitoring Unit explaining that Navdeep Singh has two businesses trading as ‘Mirror Hair Studio Joondalup’ and ‘Mirrors Mobile Hair Service.’  

13. On 16 February 2016 based on the information provided by Purple Allium, the delegate approved the nomination application.

14. On 16 March 2015, the applicant applied for a Regional Sponsored Migration Scheme (Direct Entry) (subclass 187) visa and submitted an electronic application form – Application for Permanent Employer Sponsored or Nominated Visa in which he provided the following information:

    (a)On page 5 of the application for the applicant indicated that his nominated occupation as Hairdresser.

    (b)On page 6 of the application form the applicant provided the following answers in relation to his employment history:

    Has the applicant been employed in the past 10 years? Yes

    Give details of employment undertaken in the last 10 years.

    ·Position: Hairdresser

    ·Employer name: Mirrors Hair Studio

    ·Country: Australia

    ·Date from: 15 April 2014

    ·Date to: 15 March 2015

    ·Description of duties: Attached resume

    ·Is it employment related to the nominated occupation? Yes

15. By a statutory declaration dated 24 November 2015 the applicant claimed that he had worked as a hairdresser for Purple Allium since 27 June 2014. That is, since the time his 457 visa was granted. He claimed that his hours of work were divided between ‘Mirrors Hair Studio’ and a mobile hairdressing service he operated for Purple Allium under the name of  ‘Mirrors Hair Mobile Service.’ The applicant’s evidence to the Tribunal was that he had found it difficult to establish clients in the Joondalup area. His evidence was that hairdressers employed in the business had their own stable clients which they would not share with other hairdressers working in the business, including the applicant. As a result, he would assist the other hairdressers by shampooing client’s hair and cleaning up around the premises while developing his own clients.  He claimed that there was a large Indian community in Perth south of the Swan River who engaged his services as a hairdresser. However, his evidence was that they would not travel to Joondalup for a haircut. As a result, he serviced members of the community by giving haircuts at home. His evidence was that he would perform 6 to 8 haircuts each weekend. His evidence was that his services were provided to customers under the name of ‘Mirrors Hair Mobile Service’ as part of Purple Allium’s business.

16. By a statutory declaration dated 24 November 2015 Navdeep Singh confirmed that he is the owner and director of Purple Allium. He purchased the business from KPBS on 31 March 2014 and began trading on 8 April 2014. His evidence was that he employed the applicant, his brother, as a qualified hairdresser. Mr Singh’s evidence was that he originally purchased the business for his wife who is a qualified beauty therapist. He had been introduced to the business by the applicant and thought it would be a good opportunity for his wife to be engaged in the business. However, his evidence was that his wife became pregnant and as a result did not commence work in the business. As a result, he employed the applicant to work in the business.  His evidence to the Tribunal was that the applicant divided his time between the business premises in Joondalup and providing mobile services.

17. Mr Singh’s evidence to the Tribunal was the hairdressers engaged in the business would have their own clients that they would service and manage. The business would take a percentage of fee charged to each client to cover the costs of providing the premises and its services.  As such his evidence was that the applicant was engaged as a hairdresser. He claimed that the applicant worked in the business assisting the other hairdressers while he was developing his own clientele, which included developing the mobile hair services.

18. Mr Singh’s evidence was that the business suffered greatly by the end of the resources boom in western Australia. His evidence was as the economy became more difficult at that time business began to decline. As a result, the hairdressers working from the salon reduced. The mobile service was operated by the applicant as an attempt to broaden the customer base of the business by including those members of the Indian community south of the river. His evidence was that he had originally purchased the business for his wife, but the economic conditions and the circumstances of his wife’s pregnancy were such that he was forced to sell the business in or about October 2016.

19. Departmental officers conducted a site visit at Purple Allium business premises on 16 October 2015. The officers attending the business claimed that they spoke to a staff member who informed them that the applicant only had a supporting role within the business and that his duties only involved mundane tasks. However, this did not take account of the fact that the applicant was involved in the mobile service and how the business operated with each hairdresser servicing and managing their own clients from the business premises. That is, each hairdresser had their own clients, and the applicant was required to develop his own clientele within the business. In such circumstances it is understandable that at the business premises he was performing what could be described as menial tasks in support of the more established hairdressers operating from the business premises.

20. In Singh & Salindera v MIEA [1993] FCA 451 His Honour Wilcox J observed that:

    ‘it is not necessary to show that a person will exercise the high skilled associated with the formal training and experience during the whole working day. there are many occupations ‘in which a highly skilled person spends a good deal of time doing routine work that a lesser skilled person could carry out equally well; but where it is essential to have a particular form of training in order to meet the exigencies of the job as they occur from time to time, perhaps only for a relatively small portion of the time. Its is necessary for the person to have the requisite skill in order to occupy the position, this is enough to satisfy the regulation. It is not necessary to show that the skills are called upon for a major proposition of the working day.’

21. Therefore, based on the evidence provided by the applicant and Mr Singh together with the statement of Arzoo Bareki dated 22 August 2022, the Tribunal accepts that the applicant was employed as a hairdresser by Purple Allium from 27 June 2014 as claimed.

22. The delegate noted that the Australian Business Register (ABR) records indicate that Purple Allium had only registered the business name ‘Mirrors Hair Mobile Service’ on 10 February 2016. Mr Singh’s evidence was that he registered the business as part of his preparation for selling the business. He explained that despite the applicant having conducted his mobile service under the name of ‘Mirrors Hair Mobile Service’ it was still part of the business of Purple Allium. As a result, he registered the name to formalise that part of the business for the purposes of sale. 

23. The Tribunal notes that pursuant to the Business Names Registration Act 2011 the object of Act[1] is to ensure that if an entity carries out business under a business name, those who engage or propose to engage with that business name can identify the entity and how the entity may be conducted and to remove any inconvenience caused by the registration of business names under the law of more than one jurisdiction within Australia. The fact that a business may use a different business name (even unregistered as a business name) is not evidence of there being two different employers or entities. The fact that Mr Singh registered the name ‘Mirrors Hair Mobile Service’ as part of the sale of the business of Purple Allium indicates to the Tribunal that the applicant was operating the mobile service as part of the business of Purple Allium.

    [1] Business Names Registration Act 2011 Section 16

24. The delegate refers to the fact that the applicant declared his occupation as a stock checker and a truck driver upon his arrival in Australia on 6 May 2017 and 4 April 2018 and 30 April 2019 respectively. However, the Tribunal notes that the applicant’s declarations were made after the period in which he claims to have worked as hairdresser and after the Purple Allium business was sold.  The applicant’s own evidence was that he had been unable to find work as a hairdresser and as such was forced to find alternative employment.

CONCLUSION

1. Therefore, based on the evidence provided by the applicant and Mr Singh the Tribunal finds that the applicant was employed by Purple Allium as a hairdresser as detailed in the applicant’s visa application. For this reason, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s 107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise. 

2. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

decision

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Jason Pennell
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)

1. Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)      was obtained because of a false or misleading statement, whether or not made knowingly.

2. Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

1. Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

2. Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

3. Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

4. Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

5. Particulars of incorrect answers to be given

   (1)If a non‑citizen becomes aware that:

   (a)     an answer given or provided in his or her application form; or

   (b)     an answer given in his or her passenger card; or

   (c) information given by him or her under section 104 about the form or card; or

   (d)     a response given by him or her under section 107;

   was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.

   (2)Subsection (1) applies despite the grant of any visa.

6. Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)      stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)      requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)      visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

7. Decision about non‑compliance

   The Minister is to:

   (a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

8. Cancellation of visa if information incorrect

   (1)The Minister, after:

   (a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and

   (b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

   (c)      having regard to any prescribed circumstances;

   may cancel the visa.

   (2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.