Ha (Migration)

[2019] AATA 5595

Ha (Migration) [2019] AATA 5595 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Thu Giang Ha

CASE NUMBER:  1919378

HOME AFFAIRS REFERENCE(S):          BCC2019/1041557

MEMBER:Antoinette Younes

DATE:9 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

Statement made on 09 December 2019 at 11:11am

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long Stay)) – work in most recently approved nomination – job duties – nominated position as massage therapist but working as nail technician – credibility – discretion to cancel visa – factors for and against cancellation – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 116(1)(b), (3), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8107

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) for breach of condition 8107. 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 4 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from a witness.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

5. 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

6. 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) for breach of condition 8107. 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?

   Section116 (1)(b) - non-compliance with conditions

7. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 which requires the visa holder to work in the most recently approved nomination (subclause (3)(a)(i)).

8. By way of background, THANH HUYEN VU is the standard business sponsor (‘sponsor’) that nominated the applicant in the occupation of Massage Therapist (ANZSCO 411611) and the nomination was approved on 1 March 2017.

9. In the course of the hearing and in accordance with s.359AA, the Tribunal discussed with the applicant information contained in the Departmental file as follows:

   i)   On 10 September 2018, the Department commenced monitoring of the sponsor.  During a site visit to the sponsor’s business address on 19 September 2018, Departmental officers observed that the applicant was working as a nail technician.

   ii)     During an interview on 19 September 2018 with Departmental officers, the applicant confirmed that:

   ·     She has been working with the sponsor for the last year and a half.

   ·     She has always worked in beauty and with the sponsor she always worked in nails.

   ·     The massages she performed were on the customers’ hands and feet.

   ·     Customers call her to book appointments.

   ·     She did mainly nails, feet, hands, and full arm massages.

   iii)   During the site visit on 19 September 2018, the manager of the business stated that:

   ·     They did simple massages on the feet and body in the waxing room.

   ·     They did not do full body massages.

   ·     They did the hands, feet and the back performed while the customer is seated on the chair.

   ·     They do not have an appointment book.

   ·     They did 10 massages the previous day.

   iv)   During the site visit, Departmental officers noted that the sponsor’s business did not have equipment for regular massages to be conducted on the premises.

   v)    On 28 February 2019, the Department made a decision to cancel the approval of the sponsor as a standard business sponsor and to bar the sponsor for 12 months from making applications for approval as a standard business sponsor and temporary activities sponsor. The grounds for the decision included the sponsor’s failure to satisfy sponsorship obligation to ensure primary sponsored persons (including the applicant) worked or participated in the nominated occupation, program or activity.

   vi)   On 1 March 2019, the Department advised the applicant of the sponsor’s cancellation of the standard business sponsor and noted that in order “to ensure your continued eligibility to stay in Australia on your current visa, you must have an approved nomination in place with an approved standard business sponsor”.

10. The Tribunal advised the applicant that the information is adverse as it indicates that she was not working in the occupation of Massage Therapist, in breach of condition 8107 attached to her visa. When invited to comment on or respond to that information or asked if she needed more time, the applicant stated that her main job was to perform massages.  The applicant had difficulties in explaining her role and what she was doing on the day of the site visit.  She said on that day, customers who required pedicures or manicures were attended to by technicians but if a technician was not available, she would assist.  The Tribunal asked the applicant to explain.  She stated that on the day the Departmental officers came she was helping other technicians in nail work but she was a massager.  She later said that her main job on the day was that of a massager but she was helping her colleagues in providing nail services.  She said she helped in the removal of nail polish. 

11. The Tribunal continued to seek clarifications from the applicant about her duties.  She said that on the day the customer wanted a massage but there was no other “technician” so she helped her colleagues with nails.  She said Departmental officers saw her wiping shellac off a customer’s nails and that she was helping others.  She also performed massages on arms but technicians took over to perform manicures and pedicures.  She said she helped when the technicians were busy.  The applicant said her main duty was to perform massages but on the day she was helping because the shop was full and she wanted to please the customers.  She said she never performed a full manicure or pedicure.  The Tribunal observes that the applicant had difficulties in explaining in a coherent manner her overall duties as well as her specific duties on the day of the site visit.  She required considerable prompting and questions seeking clarifications and her answers were overall unclear, suggesting credibility concerns.

12. The Tribunal discussed with the applicant the issue in relation to the appointment book and the different versions of event as she presented as compared to the manager.  The applicant stated that her employer had previously asked her to take the appointment book home to check the number of customers. She said the manager was nervous when she spoke to the officers and perhaps because the appointment book was not there on that day.  The Tribunal is not persuaded; the Tribunal has concerns about the applicant’s credibility and prefers the version of the manager who advised the officers on the day of the site visit that they do not have an appointment book.  

13. The Tribunal asked the applicant about her understanding of the main duties of a massage therapist and she replied that it is to perform massages.  The Tribunal asked her about what she was actually doing at the sponsor’s business and she said she was performing massages on customers’ arms, legs, and body.  The Tribunal put to the applicant that this appears to be different to what she had said to the Departmental officer on 19 September 2018, namely that she had always worked in nails, and that the massages she performed were on the customers’ hands, feet and full arm.  The Tribunal is of the view that the inconsistency raises further concerns about the applicant’s credibility.

14. The Tribunal discussed with the applicant the duties of a Massage Therapist as outlined in ANZSCO[1]:

    oPerforming therapeutic massage and administers body treatments for relaxation, health, fitness and remedial purposes;

    omassaging the soft tissues of the body, such as muscles, tendons and ligaments, to assist healing;

    outilising a range of massage techniques to enhance sports performance and prevent injury;

    oadministering treatments to promote relaxation, improve circulation and relieve muscle tension;

    oassessing and treating specific soft tissue dysfunction and providing rehabilitation advice;

    oemploying other techniques, such as acupressure or Shiatsu, and complementary aids, such as infra-red lamps, wet compresses, ice, essential oils and herbal and mineral therapies, to assist recovery;

    oassessing client's physical condition and case history and advising on stretching exercises and relaxation techniques.

    [1] Australian Bureau of Statistics -  1220.0 - ANZSCO - Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1. 

15. The Tribunal noted that when the Tribunal asked her about her duties, her response was essentially that she performed ‘massages’ which as the Tribunal indicated was broad and general and did not mention specific tasks as outlined above.  The applicant said it was the first time and that she was nervous during the interview.  The Tribunal explained that the Tribunal was referring to her answer in the course of the hearing.  The Tribunal is satisfied that the applicant’s answer about her duties lacked details and showed a superficial and limited understanding of the duties of a Massage Therapist providing further evidence that she was not performing the duties of the nominated position of Massage Therapist.

16. In a statement provided by the applicant to the Department (Folio 79), the applicant indicated that during the interview conducted on 19 September 2018, she was nervous. She stated that her main job is massage but she sometimes did nails when the shop was busy with not enough staff to attend to customers. She further stated that as a result of being interviewed, she is now aware that she can only perform massages and she has stopped doing nails as it is not part of her duties. She stated that she would work on improving her massage techniques so that she could provide better services to the customers.  She stated that she will “discuss with the Massage Therapist and the boss to expand our massage services and permanent facilities to provide full body massage to customers when they request”.

17. The applicant gave evidence that she obtained qualifications from Clover Educations that relied on her experience.  She stated that she provided videos to the College that gave her the qualification.  The Tribunal requested, and post-hearing the applicant provided a copy of the Diploma of Remedial Massage, issued on 5 January 2016. The Tribunal is mindful that it is not reviewing the refusal of the subclass 457 but rather its cancellation.

18. Although the Tribunal has concerns as to how the competencies were assessed on the basis of videos only, the Tribunal accepts that the applicant has been granted the subclass 457 following the required Departmental assessments that found her to meet the relevant visa criteria. The Tribunal has not drawn any adverse inferences on the basis of the applicant’s qualifications but the Tribunal explored the issue in order to gain a comprehensive understanding of the applicant’s skills.

19. On 20 May 2019, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOITCC/Notice). On 23 May 2019, the applicant wrote to the Department requesting that her visa not be cancelled because the sponsor had applied for review to the AAT.  In relation to the sponsor, the representative advised that a review of the decision relating to the sponsor has been lodged with the AAT. The Tribunal is satisfied that breach of condition 8107 relates to the applicant personally and the Tribunal does not see it necessary to await the outcome of the review in relation to the sponsor’s application.

20. The Tribunal has carefully considered the evidence independently and cumulatively, and the Tribunal is satisfied that the applicant was not working in her nominated occupation of Massage Therapist, in breach of condition 8107 and consequently the ground for cancellation arises. The Tribunal has considered the significance and/or relevance of the applicant’s qualifications and the Tribunal accepts that the applicant does have a Diploma of Remedial Massage but considered cumulatively, the Tribunal is not satisfied that the Diploma means that she was working in the nominated occupation.

21. For the stated reasons, the Tribunal is satisfied that there has been a breach of condition 8107 and consequently the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

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

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The applicant gave evidence that she came to Australia in 2014 as the holder of a student visa to undertake studies in English and accounting. On her own evidence, she completed an English course but did not pursue studies in accounting but instead she applied and was granted a subclass 457 visa 2017. The purpose of the subclass 457 visa was to enable the applicant to work for an approved sponsor in a skilled occupation for which she was nominated, namely the occupation of Massage Therapist (ANZSCO 411611).  For the stated reasons, the Tribunal has found that the applicant was not working in the nominated occupation, in breach of condition 8107, which the Tribunal considers to be a significant condition and goes to the core of the grant of the visa.

24. On her own evidence, the applicant is currently working in Australia as the holder of a bridging visa, granted to enable her to remain in Australia lawfully pending the AAT’s review. The purpose of a bridging visa is not to specifically enable an applicant to work in Australia, although the visa holder could be granted work permission on a bridging visa.

25. The Tribunal is satisfied on the evidence that the applicant did undertake English studies in Australia in accordance with her initial intention to travel to Australia and the Tribunal gives this aspect some weight in her favour. Her initial intention changed when she did not pursue accounting studies but instead she applied and was granted the subclass 457 visa to work in a nominated occupation and she has not. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·The extent of compliance with visa conditions

26. The applicant has not complied with condition 8107 attached to her visa.

27. The Tribunal gives this aspect significant weight in favour of cancellation.

    ·The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. The applicant stated that her visa should not be cancelled because she has all the skills of a massager.  She stated that she cares about her customers who would follow her and that she understands her duties well.

29. Ms Vu, the witness is the applicant’s sponsoring employer and she was not present during the Departmental visit on 19 September 2019.  Ms Vu gave evidence that the previous ABN was for a sole trader and prior to cancellation, the entity became a company.  Ms Vu confirmed that she has not informed the Department due to illness.  Relevantly, Ms Vu spoke highly of the applicant’s skills, dedication, customer service and the need for her to be in the position as the business has improved, bringing in new customers.

30. The Tribunal acknowledges that the cancellation of the applicant’s visa could potentially result in hardship including psychological, emotional and financial. The Tribunal appreciates that the applicant wants to remain in Australia and she told the Tribunal that she loves her work. The Tribunal understands that the applicant could be disappointed, anxious and upset about the cancellation of her visa.

31. The Tribunal gives regard to the evidence of Ms Vu who considered the applicant to be a valuable employee who is an asset to her business.

32. The Tribunal gives those aspects some weight in the applicant’s favour.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

33. The circumstances in which the ground for cancellation arose are that the applicant has breached an integral condition of her visa, namely condition 8107.

34. The applicant has not accepted that there is a ground for cancellation in that she has denied that she was not working in the nominated occupation. The Tribunal appreciates that the applicant is a young person (she is about 23 years old), however, she was granted a subclass 457 as a primary visa holder. The grant has consequential responsibilities, such as conditions and it is expected that the visa holder complies with any visa condition attached to the visa.

35. The Tribunal considers compliance with visa conditions to be a lawful and legitimate expectation, otherwise there is risk to the integrity of the migration program. The Tribunal does not consider the non-compliance with condition 8107 in the applicant’s circumstances to have arisen beyond her control.

36. The Tribunal gives significant weight to this consideration in favour of cancellation.

    ·Past and present behaviour of the visa holder towards the department

37. The applicant responded to the NOITCC and has cooperated with the Departmental staff when they visited on 19 September 2018.

38. The Tribunal gives this aspect weight in the applicant’s favour.

    ·Whether there would be consequential cancellations under s.140

39. There is no evidence before the Tribunal of any consequential cancellation under s.140.

40. The Tribunal gives this aspect neutral weight.

    ·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

41. The cancellation of the applicant’s subclass 457 visa means that unless the applicant makes other arrangements, she could be liable for detention and removal from Australia. She would also encounter difficulties in being granted any further visas. The Tribunal considers those potential consequences to be serious however they are intended legislative consequences and in the applicant’s case, they do not mean that the visa should not be cancelled.

1. The Tribunal gives this aspect neutral weight.

   ·Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

2. There is no evidence before the Tribunal to suggest that Australia would be in breach of any of its international obligations, in case of cancellation.

3. The Tribunal gives this aspect neutral weight.

   ·If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

4. The subclass 457 is not a permanent visa. Had it not being cancelled, the visa would have expired on 14 March 2021.   In any event, there is no evidence before the Tribunal of strong family or other ties; the applicant’s parents and younger siblings live in Vietnam. The Tribunal has acknowledged and given some weight in her favour in this regard.

5. The Tribunal gives this consideration neutral weight.

   ·any other relevant matters

6. The Tribunal is not aware of any other relevant matters for its consideration.

7. The Tribunal has considered the evidence independently and cumulatively. There are aspects that weigh in the applicant’s favour and there are those that are in favour of cancellation. On balance, the Tribunal is satisfied that the considerations that weigh in favour of cancellation outweigh other considerations.

8. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Business (Long Stay)) visa.

   Antoinette Younes

   
   Senior Member