Bhatti (Migration)

Bhatti (Migration) [2020] AATA 1211 (30 March 2020)
DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Narpal Singh Bhatti
CASE NUMBER:  1929587
DIBP REFERENCE(S):  BCC2018/1930658
MEMBER:Antonio Dronjic
DATE:30 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.

Statement made on 30 March 2020 at 9:51am
CATCHWORDS
MIGRATION – cancellation – Regional Employer Nomination (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – incorrect information in visa application – employment experience – job tasks – support role rather than claimed task – mobile service as well as in-premises work – mobile service name not registered until after period of claimed employment – credibility – inconsistent evidence – discretion to cancel visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 111, 375A
Migration Regulations 1994 (Cth), r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the visa holder has not complied with s.101(b) of the Act as he provided incorrect answers in his electronic application form for a Subclass 187 visa submitted to the Department on 16 March 2015.
The applicant’s immigration history
·The applicant first came to Australia on 25 June 2008 as a holder of a student visa Subclass 573 that remained valid until 27 September 2012;
·On 29 June 2012, KPBS and K Pty Ltd (T/AS Mirrors Hair Studio Joondalup) nominated the applicant for a Subclass 119 visa. This nomination application was refused by the Department on 9 September 2013;
·On 16 February 2013, KPBS and K Pty Ltd applied for standard business sponsorship approval. This application was refused on 9 April 2013;
·On 4 March 2014, the applicant’s brother, Mr Navdeep Singh purchased Mirrors Hair Studio Joondalup from KPBS and K Pty Ltd;
·On 27 June 2014 the applicant was granted a Subclass 457 visa until 27 June 2015, based on the sponsorship and nomination by Purple Allium Pty Ltd trading as Mirrors Hair Studio. The owner and the director of this company was the applicant’s brother, Mr Navdeep Singh;
·On 12 March 2015, Purple Allium Pty Ltd lodged an ENS nomination for a Subclass 187 visa, nominating the applicant for the position of a hairdresser. This nomination was approved by the Department on 16 February 2016; and
·On 16 February 2016, the applicant was granted a Subclass 187 visa.
According to the primary decision record submitted to the Tribunal by the applicant, in his visa application form (at questions 5 & 6) he stated that his nominated occupation is hairdresser and that he worked in this occupation at Mirrors Hair Studio from 15 April 2014 to 15 March 2015.
Integrity checks conducted by the Department on 16 October 2015 and 15 August 2017 confirmed that the visa holder did not work as a hairdresser for his sponsor Purple Allium Pty Ltd trading as Mirrors Hair Studio.
According to the primary decision record, during the site visit conducted at Mirrors Hair Studio on 16 October 2015, the staff employed by the business informed the officers that the applicant had a support role within the business, that his duties involved cleaning the premises, making coffees, helping his brother with organising the pay, fetching goods from the shops on an ad-hoc basis and sometimes shampooing clients’ hair but did not involve cutting hair. The staff confirmed that the visa holder worked Tuesdays to Fridays from 11:00 until 16:00 or 17:00 – which would equate to between 20 and 24 hours per week; that he has worked for the salon since April 2014 but never as a hairdresser.
The Department sent its natural justice letter to the applicant on 18 January 2016, inviting him to comment on adverse information. In his response, the applicant stated that Mr Navdeep Singh (the applicant’s brother and the owner and director of Purple Allium Pty Ltd trading as Mirrors Hair Studio) has two businesses trading as Mirrors Hair Studio Joondalup and Mirrors Mobile Hair Service and the applicant was working as a ‘mobile hairdresser’ in addition to the time spent at the Joondalup salon. It was further submitted that the staff interviewed by departmental officers on 16 October 2015 were not aware of this mobile salon service.
It was further stated in the primary decision record that the Australian Business Register (ABR) records indicate that Purple Allium Pty Ltd (ABN: 40 167 969 753) registered their business name ‘Mirrors Mobile Hair Service’ on 10 February 2016, that departmental records indicate that the applicant arrived in Australia on 6 May 2017 and declared his occupation as a stock checker in his incoming passenger card and that the applicant also arrived in Australia on 4 April 2018 and 30 April 2019 and declared his occupation as a truck driver in his incoming passenger cards.
On 15 August 2017, a departmental officer conducted integrity checks to verify the applicant’s employment at Purple Allium Pty Ltd. The officer spoke to an employee who advised that the business changed hands around October 2016. The officer asked if they recognised the name Narpal Singh Bhatti. The employee said the visa holder used to work for the owner but not as a hairdresser in the store.
On 5 September 2019, a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant and the delegate proceeded with the cancellation on 15 October 2019.
The applicant applied for review of the primary decision to this Tribunal on 18 October 2019. With the review application, the applicant submitted:
·A copy of the primary decision record dated 15 October 2019;
·Legal submissions dated 17 July 2019 prepared by the applicant’s representative in response to the NOICC of 5 September 2019;
·A copy of a marriage certificate as evidence that the applicant married on 3 April 2019 in India;
·A copy of a medical report from Dr Sharma from India dated 2 May 2017, evidencing that the applicant was advised to take part in social activities, spend time with his family and avoid stress;
·A copy of a medical certificate dated 8 September 2017 stating that the applicant was unable to work from 8 September 2017 to 22 September 2017;
·A copy of an undated medical certificate from Epping clinic stating that the applicant was unable to work from 23 July 2018 to 27 July 2018;
·A copy of a prescription for Blackmore tablets;
·A copy of an application for a hairdressing job in 2017;
·A copy of correspondence regarding possible lease of premises for a new salon;
·A copy of the Commonwealth Bank letter dated 13 June 2019 as evidence of the applicant’s variable personal loan with this bank;
·A copy of the Commonwealth Bank home loan summary for the period 16 April 2019 to 30 June 2019;
·A copy of the consumer credit contract schedule;
·A copy of a reference letter from Sikh Samaritans Australia dated 17 July 2019;
·A copy of a certificate of participation from Khalsa Aid.
On 21 January 2020, the Tribunal wrote to the Department requesting any record (including TRIM or ISCE records, file note, investigation report, signed statement etc.) that led to the delegate’s finding that the applicant provided incorrect answers on the visa application form (including documentary evidence related to integrity checks conducted by the Department on 16 October 2015 (site visit report) and 15 August 2017). The Tribunal also requested a copy of the applicant’s incoming passenger cards of 6 May 2017, 4 April 2018 and 30 April 2019 referred to in the primary decision record.
On 22 January 2020, the Department provided the following documents to the Tribunal:
·Copy of ICSE records stating that the site visit conducted on 16 October 2015 revealed that the applicant was not working in the position of a hairdresser at Purple Allium Pty Ltd; and
·Copy of the applicant’s incoming passenger cards of 6 May 2017, 4 April 2018 and 30 April 2019 referred to in the primary decision record.
On 22 January 2020, the Department issued a s.375A non-disclosure certificate in respect of the documents provided to the Tribunal. It was stated that the disclosure of these documents would be contrary to the public interest as it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of law.
On 22 January 2020, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 11 March 2020.
On 28 January 2020, the Tribunal wrote to the Department advising it that the presiding member has taken the view that the s.375A certificate was not valid, as it does not disclose the public interest it seeks to protect. The Tribunal invited the Department to either revoke the certificate or re-issue it. In addition, the Tribunal noted that all information covered by the certificate was contained in the Department’s NOICC of 5 September 2019 and the primary decision record.
On the same day, the Department responded that it is unclear what the Tribunal’s concerns are. They did not revoke or re-issue the certificate.
On 10 March 2020, the Department provided a copy of the site visit report requested by the Tribunal. This document was not protected by the non-disclosure certificate and was essentially summarised in the primary decision record.
The applicant appeared before the Tribunal on 11 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his brother, Mr Navdeep Singh and his sister-in-law, Ms Kirandeep Kaur Cheema. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
At the commencement of the hearing, the Tribunal informed the applicant that the Department issued a s.375A non-disclosure certificate on 22 January 2020 and gave him a copy of the certificate. The Tribunal further informed the applicant that it took the view that the certificate of 22 January 2020 is not a valid certificate as it does not disclose the public interest it seeks to protect. The Tribunal explained that all information purportedly covered by the certificate relates to the site visit of 16 October 2015, details of which were contained in the Department’s primary decision record that he submitted to the Tribunal with the review application.
The applicant is 33 years of age and a national of India. He stated that he is a practising Sikh and follows the commands of his faith. He married in April 2019 and his wife lives in India. She applied for a spouse visa in June 2019. His parents also live in India while his only brother is an Australian citizen and lives in Melbourne.
Before arriving in Australia in June 2008 as a holder of a student visa (Subclass 573) he completed a Bachelor of Arts degree in India. In Australia, he completed a Diploma in Salon Management in 2011 which included a Certificate III and IV in Hairdressing. During his studies in Australia he worked as a taxi driver. He obtained a taxi driver’s licence in 2009. In October 2011, he relocated to Joondalup, Western Australia.
The applicant currently holds a bridging visa “E” with no work restrictions. He is and has been working as a truck driver since early 2018. He is a full-time employee at a trucking business located at Altona and earns approximately $1,000 per month. He jointly owns a residential property in Mernda with his brother and sister-in-law.
In his evidence the applicant stated that he applied for a Subclass 187 visa on 16 March 2015. He commenced part-time employment as a hairdresser at Purple Allium Pty Ltd trading as Mirrors Hair Studio (hairdressing salon) located in Joondalup, WA in April 2014. As of 14 July 2014, he worked there as a full-time employee and was paid approximately $54,000 per annum. He stated in his evidence that he remained employed by Purple Allium Pty Ltd until October 2016, when his brother, who was the owner of the business, sold the hairdressing salon.
The Tribunal noted that, according to the primary decision record, in his visa application he stated that he worked as a hairdresser for Mirrors Hair Studio from 15 April 2014 to 15 March 2015. The Tribunal noted that the applicant in his oral evidence stated that he worked there from July 2014 to October 2016.
The applicant stated that, from July 2014 until October 2016, he also worked as a mobile hairdresser for Mirrors Mobile Hair Service. He explained that he would usually work between 20–25 hours during the weekdays at the hairdressing salon at Joondalup and on weekends he would work as a mobile hairdresser. This arrangement continued until October 2016 when the business was sold.
The Tribunal noted that, according to the primary decision record, the business name Mirrors Mobile Hair Service was only registered on 10 February 2016 and was not, prior to this date owned by Purple Allium Pty Ltd. The applicant stated that whatever income he was making working as a mobile hairdresser it went into Purple Allium Pty Ltd’s account. He added that his brother was not aware that he needed to register this business name.
The Tribunal noted that, according to the primary decision record, on 16 October 2015, departmental officers conducted a site visit at the hairdressing salon and were informed by staff working at the business, that he was not a hairdresser. The staff informed the officers of the Department that he had a support role within the business, where his duties involved cleaning the premises, making coffees, helping his brother with organising the pay, fetching goods from the shops on an ad-hoc basis and sometimes shampooing clients’ hair but did not involve cutting hair.
The Tribunal asked the applicant whether in his opinion the staff working at the hairdressing salon were not telling the truth to the officers of the Department when they made those statements. He stated that the staff did not know anything about the mobile hairdressing services. The Tribunal noted that the people working at the salon described his work at the salon and that they did not even mention any mobile hairdressing services. The applicant stated that they did not know about ‘walk-in’ customers.
The Tribunal raised the issue of the applicant’s credibility as a witness and explained the consequences of finding him not to be a credible witness.
The applicant confirmed that he read the submissions dated 17 July 2019 provided to the Tribunal by his representative. The Tribunal noted that in his submissions it was inter alia stated that:
Narpal Bhatti acknowledges that he recorded his employment as hairdresser which was true for the work that he did through the mobile service but not for the Joondalup salon where he stood in more for his brother and carried out the day to day management and other tasks to ensure the smooth operation of the salon…
Mr Bhatti has acknowledged that his actual hairdressing duties in the Joondalup salon were limited but that he carried out other duties within the business.
The Tribunal noted that in his oral evidence the applicant is now stating that he did work as a hairdresser at Joondalup hairdressing salon and pointed out the inconsistency in his written submissions and oral evidence.
The applicant then stated that he did cut hair for ‘walk-in customers’ on ‘very rare’ occasions. The Tribunal enquired as to how many, out of 25 hours that he worked at the salon, he would spend cutting hair. The applicant stated that he would cut hair 2–3 hours per week.
He then stated that he did not spend any time from July 2014 to October 2016 at the Joondalup salon as a hairdresser. He gave evidence that he would help staff and occasionally shampoo hair.
The Tribunal noted that in his written submissions of 17 July 2019, he stated that he did not intentionally provide incorrect answers on the visa application form. The applicant stated that this is correct. The Tribunal noted that this statement means that he conceded that he did provide incorrect answers in the application form but not intentionally. The Tribunal read the following part of his written submissions:
Mr Bhatti refutes the decision made by the delegate that he intentionally provided incorrect answers pertaining to his employment history and nominated position…
He understands that the claim of working full-time as a hairdresser for the stated period was in doubt as he did not carry out the duties at the salon itself. Although he was working in the mobile service this was not disclosed to the staff at the Joondalup salon.
As has been stated he did not intend to give incorrect answers when he applied for his RSMS 187 visa.
The applicant stated that he does not think that he answered questions in the application form incorrectly.
The Tribunal observed that, according to the primary decision record, he stated in the visa application form that he worked for the nominating business from 15 April 2014 to 15 March 2015. Accordingly, as he did not work at the nominating business for the period of 2 years after he commenced full-time employment at Purple Allium Pty Ltd, his visa would have been liable for cancellation under s.137(q) of the Act.
The Tribunal noted that in his written submissions of 17 July 2019, he stated that in 2018 he completed a Certificate IV in Disability. The Tribunal enquired as to why he completed this course, considering that he already holds a bachelor’s degree from India, a diploma in salon management from Australia and has been driving trucks since 2018.
The applicant stated that he was ‘baptised Indian style’ in March 2018. According to his religion, he is not allowed to cut either his own or someone else’s hair. He confirmed that he was a practising Sikh in 2014 and was wearing a turban but at that time he was not ‘baptised’. He stated that there are lots of people wearing turbans but who have not been ‘baptised’. The Tribunal enquired as to whether the applicant knew in 2014 that as a Sikh he is not allowed to cut hair. The applicant stated that he knew that but did not follow this rule.
The Tribunal asked if there was any document issued as a confirmation that he had been ‘baptised Indian style’ in 2018. The applicant stated that no documents were issued.
The Tribunal informed the applicant that, based on the evidence before it, the Tribunal has formed a preliminary view that the NOICC issued on 5 September 2019 contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal’s preliminary view is that the notice issued under s.107 complied with the statutory requirements.
The Tribunal explained that the cancellation power contained in s.109 is discretionary and that, even if the Tribunal finds that there was non-compliance in the way described in the s.107 notice, the Tribunal has discretion not to cancel the applicant’s visa. In doing so the Tribunal is required to consider the circumstances prescribed in r.2.41 and should also have regard to any lawful government policy.
The Tribunal noted that the applicant’s representative in her written submissions of 17 July 2019 provided submissions and supporting documentary evidence addressing r.2.41 and government policy. The Tribunal summarised those submissions to the applicant and asked if there is anything else he would like to bring to the Tribunal’s attention.

The applicant stated that he had submitted all documents stating why his visa should not be cancelled. He stated that whatever information he provided it was correct. In 2016 he travelled to India after his relationship broke up. He stated that he needed to see a doctor in India who recommended him to undertake social activities, meditation and yoga. The Tribunal noted that this was stated in the written submissions. The applicant stated that he has no other matters to bring to the Tribunal’s attention.
In his evidence Mr Navdeep Singh confirmed that he is the applicant’s brother and that they currently live together at a property located in Mernda, Victoria. He gave evidence that Purple Allium Pty Ltd was registered in February 2014 and that he was one of the directors and shareholders of this business. This entity purchased Mirrors Hair Studio located in Joondalup in April 2014 from KPBS and K Pty Ltd for some $55,000. He stated that, while he was living in Joondalup WA, he worked as a taxi driver. He does not hold any qualifications relevant to the occupation of a hairdresser and has never worked as one. The Tribunal enquired as to why he would purchase a hairdressing business if he was working as a taxi driver.
The witness stated that he purchased a hairdressing salon for his wife as she completed a beautician course and was providing beautician services in India. The Tribunal enquired as to whether his wife was a qualified hairdresser or just a beauty therapist. The witness responded that his wife was not qualified as a hairdresser according to the Australian standards.
The Tribunal enquired as to why the witness did not purchase a beauty salon rather than a hairdressing salon for his wife considering that she completed a beautician course and was working in this occupation in India. The witness stated that they intended to add additional services to the hairdressing business.
The witness gave evidence that his wife never worked at Mirrors Hair Studio at Joondalup because at that time she gave birth to their child. His mother was unable to come from India to help with the child as she could not get long service leave from her job.
The witness stated that his child was born on 1 February 2014, before Purple Allium Pty Ltd purchased Mirrors Hair Studio. He confirmed that his wife never worked at this hairdressing salon until its closure.
The Tribunal expressed its concerns about the statement that the business was purchased for Mr Singh’s wife considering that for more than 2 years she did not work at this business at all. The Tribunal asked if, considering that at that time his brother just completed his formal qualifications for hairdressing in Australia, he purchased the business in order to sponsor his brother and help him obtain permanent residence in Australia. The witness reiterated that the business was purchased for his wife and was sold in October 2016.
The Tribunal enquired as to what the applicant’s job was at Mirrors Hair Studio in Joondalup. The witness stated that his brother was working as a hairdresser but was also helping him with advertising and marketing and performing other duties. The witness stated that his brother commenced full-time employment as a hairdresser at the salon in July 2014 and continued to work in this occupation until October 2016 when the business was sold.
The witness gave evidence that, approximately 70% of the time his brother worked as a hairdresser and 30% of the time he was undertaking other duties.
The Tribunal observed that in his evidence, the applicant stated that he only worked at the hairdressing salon as a hairdresser 2–3 hours per week. The witness stated that he may misunderstand the question as English is not his first language. He then stated that his estimate included both working at the salon and the mobile services.
He explained that his brother was working both at the salon and was providing mobile hair services. The Mirrors Mobile Hair Service business name was registered in February 2016 as it was only then that the witness learned that, if the services were provided outside the hairdressing salon, he must register this business. The witness stated that, despite not having this business registered at that time, his brother worked for Mirrors Mobile Hair Service from July 2014. He stated that his brother worked for Mirrors Mobile Hair Service 7 days per week, both Monday to Friday and weekends, depending on his appointments.
The Tribunal enquired as to when his brother was baptised according to the Sikh tradition. The witness stated that it was in March or April 2017, that the ceremony was conducted in India and that he was not present there as he was in Australia.
He confirmed that he read the primary decision record. The Tribunal noted that, according to this decision, on 16 October 2015, departmental officers conducted a site visit at the hairdressing salon in Joondalup and were informed by staff working at the business, that the applicant was not a hairdresser. The staff informed the officers of the Department that the applicant had a support role within the business, where his duties involved cleaning the premises, making coffees, helping him organise the pay, fetching goods from the shops on an ad-hoc basis and sometimes shampooing clients’ hair but did not involve cutting hair.
The Tribunal asked the witness to explain to the Tribunal why people working at the salon would tell the officers of the Department that his brother did not work as a hairdresser and never cut hair at the salon. The witness stated that his brother was working as a hairdresser mainly in the mobile services. The other employees were not aware as to what happened at the salon after they left. His brother was staying at the salon after other employees left.
The witness stated that he has no further matters to bring to the Tribunal’s attention.
In her evidence, Ms Cheema stated that she first came to Australia in November 2012 as a holder of a partner visa. She married Mr Navdeep Singh on 24 February 2012.
The witness stated that, before arriving in Australia, she completed a Bachelor of Commerce degree and Master of Commerce degree in India. In 2010, she also completed a 3-month beautician course in India and claims that she worked as a beautician between completion of her bachelor’s degree and commencement of her master’s course (for 5 or 6 months). She never worked as a hairdresser in India.
In Australia she worked in WA at the petrol station for 2 or 3 months after which she got pregnant and quit her job. She has not been in paid employment since that time. She never worked as a hairdresser or beautician in Australia. She never worked at Mirrors Hair Studio in Joondalup even though her husband bought the salon for her.
In October 2015 she and her husband came back to Melbourne. Her brother-in-law continued to reside in WA until November 2016. The witness stated that her husband travelled to WA on only one occasion after they moved their residence to Melbourne in October 2015.
The Tribunal noted that the applicant proposed that the Tribunal contact Dr Sharma in India. The Tribunal indicated that it is prepared to accept that the applicant visited Dr Sharma, who provided a medical report dated 2 May 2017 by which the applicant was advised to take part in social activities, avoid stress or loneliness and do yoga and breathing exercises.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
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 and was based on provision of incorrect answers in the electronic application form for a Subclass 187 visa submitted to the Department on 16 March 2015.
In particular, the applicant (at questions 5 & 6) stated that his nominated occupation is hairdresser and that he worked in this occupation at Mirrors Hair Studio from 15 April 2014 to 15 March 2015. Integrity checks conducted by the Department on 16 October 2015 and 15 August 2017 confirmed that the visa holder did not work as a hairdresser for his sponsor Purple Allium Pty Ltd trading as Mirrors Hair Studio.
In his written submissions of 17 July 2019, the applicant stated that he did not intentionally provide incorrect answers pertaining to his employment history and nominated position. He claims that he worked as a hairdresser for Mirrors Mobile Hair Service but not for the Joondalup hairdressing salon where he stood in more for his brother and carried out the day to day management and other tasks to ensure the smooth operation of the salon. Finally, the applicant conceded in his written submissions that his actual hairdressing duties in the Joondalup salon were limited and that he carried out other duties within the business.
During the site visit conducted on 16 October 2015, the staff employed at Mirrors Hair Studio confirmed to the officers of the Department that the applicant had a support role within the business, that his duties involved cleaning the premises, making coffees, helping his brother with organising the pay, fetching goods from the shops on an ad-hoc basis and sometimes shampooing clients’ hair but did not involve cutting hair.
The Tribunal observed that s.111 of the Act puts beyond doubt that s.107, s.108 and s.109 apply whether the person’s non-compliance was deliberate or inadvertent.
In his oral evidence, the applicant initially stated that he worked at Mirrors Hair Studio hairdressing salon located in Joondalup from July 2014 to October 2016, when his brother, who was the owner of the business, sold the hairdressing salon.
The Tribunal noted that in his visa application form the applicant stated that he worked as a hairdresser for Mirrors Hair Studio from 15 April 2014 to 15 March 2015 and that this statement given at the hearing indicates that he provided incorrect answers in the visa application form. The applicant then changed his evidence and stated that on weekends, from July 2014 until October 2016, he also worked as a mobile hairdresser for Mirrors Mobile Hair Service. He claims that he usually worked between 20–25 hours during the weekdays at the hairdressing salon at Joondalup.
When the Tribunal enquired if he worked those 25 hours per week as a hairdresser at the Joondalup hairdressing salon, the applicant gave evidence that he served ‘walk-in customers’, after all other staff finished work. He then stated that he would ‘cut hair’ 2–3 hours per week.
The Tribunal noted that in his oral evidence the applicant is now stating that he did work as a hairdresser at Joondalup hairdressing salon and pointed out the inconsistency in his written submissions and oral evidence. He then stated that he did not spend any time from July 2014 to October 2016 at the Joondalup salon as a hairdresser. He gave evidence that he would help staff and occasionally shampoo hair.
The Tribunal noted that, according to the primary decision record, the business name Mirrors Mobile Hair Service was only registered on 10 February 2016 and was not, prior to this date owned by Purple Allium Pty Ltd. The applicant stated that whatever income he was making working as a mobile hairdresser went into Purple Allium Pty Ltd’s account. He added that his brother was not aware that he needed to register this business name.
Based on the evidence before it, including the applicant’s oral evidence, the Tribunal finds that the applicant did not work as a hairdresser from 15 April 2014 to 15 March 2015 at Mirrors Hair Studio as stated in the visa application form. Accordingly, the Tribunal is satisfied that the applicant has not complied with s.101(1)(b) of the Act as he provided incorrect answers in the visa application form.
For these reasons, the Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The correct information
The correct information which the applicant was required to provide to the Department was that he did not work as a hairdresser at Mirrors Hair Studio from 15 April 2014 to 15 March 2015. That the applicant did not provide this information to the Department does not provide any support for not cancelling the visa.
The content of any genuine document
This issue is not relevant in the current matter.
Whether the decision to grant the visa was based, wholly or partly, on incorrect information
The grant of the visa was based on the claim that the applicant worked from 15 April 2014 to 15 March 2015 as a hairdresser at Mirrors Hair Studio at Joondalup. This business was owned and operated by Purple Allium Pty Ltd. The applicant’s brother was the owner and director of the nominating business. The Tribunal is satisfied that the decision to grant the visa to the applicant was based partially on incorrect information related to the applicant’s work experience.
The circumstances in which the non-compliance occurred
The applicant is a tertiary educated person from India, where he completed a Bachelor of Arts degree. He is a practising Sikh and follows the commands of his faith, one of which is that he is not allowed to cut any person’s hair. In his evidence he claims that he started following this rule only after he was ‘baptised Indian style’ in March 2018. He provided no documentary evidence in support of this claim. The applicant conceded in his evidence that, during the claimed period of employment at Mirrors Hair Studio at Joondalup, he wore a turban and knew that as a Sikh he was not allowed to cut hair but did not follow this rule.
During his studies in Australia he drove a taxi. He obtained a taxi driver’s licence in 2009. He is and has been working as a truck driver since early 2018. He completed a Certificate IV in Disability in 2018.
His brother did his best to help the applicant stay in Australia. After being unsuccessfully nominated for a Subclass 119 visa under the Regional Sponsored Migration Scheme (RSMS) by KPBS and K Pty Ltd (who previously owned and operated Mirrors Hair Studio Joondalup) the applicant’s brother purchased this business in April 2014 for some $55,000. The Tribunal does not accept Mr Navdeep Singh’s claim that he purchased this business for his wife. She is not a hairdresser and never worked as one. She holds a Master of Commerce degree and worked at a petrol station in Joondalup. Ms Cheema claims that she completed a 3-month beautician course in India and worked in this occupation for 5 or 6 months. Again, no documentary evidence in support of this claim was submitted to the Tribunal. Both she and her husband returned to Melbourne in October 2015 while the applicant continued to reside in Joondalup until November 2016.
Mr Navdeep Singh is a taxi driver and showed no interest in running a hairdressing salon. The Tribunal is of the view that this visa should not have been granted to the applicant in the first place as it is evident that the primary reason for purchasing the hairdressing salon by Mr Singh was to secure the immigration outcome for his brother.
The Tribunal finds that the applicant made a deliberate decision not to advise the Department that he is not working as a hairdresser at Mirrors Hair Studio at Joondalup and his failure to advise the Department does not support exercising the discretion not to cancel his visa.
Present circumstances of the applicant
The applicant is currently living with his brother and his family in Melbourne. He is a full-time truck driver for a transport company located in Altona. He married in April 2019 and both his wife and parents live in India. The Tribunal accepts that in 2018, the applicant completed a Certificate IV in Disability and may be able to obtain employment in this occupation.
Although the applicant may wish to live in Australia, there is no credible information which would indicate the applicant faces any hardship in India. The Tribunal accepts that the applicant was depressed in the months after the break-up of a previous relationship and was advised by Dr Sharma, who provided a medical report dated 2 May 2017, to take part in social activities, avoid stress or loneliness and do yoga and breathing exercises.
The Tribunal accepts that the applicant has been living in Australia since June 2008 and has established ties with the Australian community and his family in Australia. The Tribunal accepts that the applicant sponsored his wife for a spouse visa and is looking forward to the future with his new wife in Australia. The Tribunal accepts that the applicant, together with his brother and sister-in-law, purchased a residential property in Melbourne and is currently employed as a truck driver.

Finally, the Tribunal accepts that the applicant would prefer to live in Australia than in India, however, places only limited weight on this when considering whether to exercise the discretion to cancel his visa.
Subsequent behaviour of the applicant
The applicant engaged a migration agent and provided a response to the notice of intention to consider cancelling his visa. This response was submitted to the Tribunal with the review application. He provided various documents in support of the submissions made by his migration agent. In his written submissions the applicant conceded that he did not work as a hairdresser at Mirrors Hair Studio at Joondalup. He stated that he did not intentionally provide incorrect answers in the visa application form. However, at the hearing, he gave inconsistent evidence, denying that he provided incorrect information in the application form and stating that he worked as a hairdresser at Mirrors Hair Studio Joondalup 2–3 hours per week.
The fact that he provided inconsistent evidence to the Tribunal cannot be given weight in his favour.
Any other instances of non-compliance
There is no information before the Tribunal that the applicant has failed to comply with any other direction of the Department or that there are any other instances of non-compliance.
The time that has elapsed since the non-compliance
The non-compliance occurred on 16 March 2015, when the applicant lodged an application for a Subclass 187 visa. His visa was granted on 16 February 2016. It is now more than 4 years since the applicant was granted this visa.
There has been a significant delay from the time of the non-compliance to the determination of whether the visa should be cancelled. The applicant continued to live in Joondalup until October or November 2016, when his brother sold the hairdressing salon. The applicant then moved to Melbourne to live with his brother and his family. The Tribunal finds that the passage of time since the non-compliance has not unduly prejudiced the applicant in any way.
Breaches of the law

100. According to the primary decision record, the applicant stated in the visa application form that he worked for the nominating business from 15 April 2014 to 15 March 2015. Accordingly, as he did not work at the nominating business for the period of 2 years after he commenced full-time employment at Purple Allium Pty Ltd, his visa would have been liable for cancellation under s.137(q) of the Act.
Contributions made to the community
101. The applicant submitted and the Tribunal accepts that he joined two community groups, Sikh Samaritans Australia Inc, where he has volunteered since October 2017 and helped organise community events and Khalsa Aid where he has participated in community volunteering. The Tribunal further accepts that the applicant is and has been working in Australia as a truck driver since early 2018 and has close relationships with his family in Australia.
102. The Tribunal is satisfied that the applicant has made some contributions to the Australian community over the period that he has resided in Australia. The Tribunal places limited weight on this aspect in the applicant’s favour in considering whether to exercise the discretion to cancel the applicant’s visa.
Other issues
103. The applicant and his wife are Indian nationals and can reside in India. The family may stay together in India and there is no information that they face any persecution or difficulties residing in India.
Overall assessment
104. The Tribunal has considered all the circumstances of the applicant and his family both individually and cumulatively. The Tribunal finds that the applicant provided incorrect answers in the visa application form. Considering all the circumstances above, the Tribunal finds that the reason for cancelling the applicant’s visa outweighs any factors, both individually and cumulatively, why his visa should not be cancelled.
105. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

106. The Tribunal affirms the decision to cancel the applicant’s Subclass 187 - Regional Sponsored Migration Scheme visa.
Antonio Dronjic

Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(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.

97Interpretation
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).

98Completion 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.
99Information 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.
100Incorrect 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.
101Visa 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.

107Notice 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.

108Decision 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.

109Cancellation 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.

[2020] AATA 1211

30 March 2020

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Immigration

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Statutory Interpretation

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