Kaur (Migration)

[2019] AATA 2569

Kaur (Migration) [2019] AATA 2569 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gurpreet Kaur

Mrs Gurpreet Kaur
Mr Gurtaaz Singh Gill
Mr Rajwinder Singh

CASE NUMBER:  1819272

DIBP REFERENCE(S):  BCC2009500283

MEMBER:John Cipolla

DATE:12 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 485 (Skilled - Graduate) visas:

·Public Interest Criterion 4020 for the purposes of cl.485.224 of Schedule 2 to the Regulations.

Statement made on 12 June 2019 at 11:28am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Skilled - Graduate) visas – Federal Circuit Court remittal – Federal Court of Australia remittal – whether false or misleading information provided – a credible witness –flaws in the investigatory processes  – applicant performed the full duties of a Hairdresser –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cl 485.224, Public Interest Criterion 4020
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FACFC 42

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 Immigration on 16 September 2011 to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 December 2009. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The matter has been remitted back to the Tribunal on two occasions this is the third review before the Tribunal.  After the first Tribunal review the applicant appealed to the Federal Circuit Court of Australia.  The Federal Circuit Court upheld the first review decision.  On appeal to the Federal Court of Australia the review was remitted back on the basis that Justice Perram ordered by consent that the Tribunal had failed to ask the right question, or had misinterpreted the applicable law, in relation to whether the applicant Ms Kaur was caught by Public Interest Criterion (PIC) 4020. This is because the Tribunal had to determine whether the relevant information, being Ms Kaur's employment reference letter given to Trades Recognition Australia for a skills assessment, was purposely wrong or purposely false as considered in the decision of Trivedi v MIBP [2014] FACFC 42. The Tribunal failed to do so, thereby committing jurisdictional error.

4. The basis of the most recent remittal was that the second (differently constituted) Tribunal conflated the discrete concepts of ‘compassionate’ and ‘compelling’ in considering and determining whether it was satisfied that the circumstances relied upon by the first applicant existed as required by PIC 4020(4)(b) and thereby fell into jurisdictional error. It mistakenly required that the circumstances be both ‘compassionate’ and ‘compelling’.

5. The applicant and her husband Mr Rajwinder Singh, (a secondary visa applicant), appeared before the Tribunal on 16 May 2019 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent Mr Nigel Dobbie who also attended the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.485.224 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

9. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

10. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

11. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

12. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

    MIGRATION HISTORY

13. The applicant arrived in Australia on 20 February 2008 as the holder of a Subclass 573 Student visa.  On 27 March 2008 the applicant was granted a further Subclass 573 visa valid until 15 March 2010. The applicant applied for the Subclass 485 visa that is the subject of this review on 14 December 2009 and was granted a Bridging visa A on the basis of that application.

    FIRST TRIBUNAL REVIEW

14. The first Tribunal review hearing was conducted on 16 August 2012 and both the applicant and her husband appeared before the Tribunal to provide oral evidence. The applicant was represented by her current representative at that review.

15. The first constituted Tribunal raised with the applicant at hearing that it had information before it indicating that the Department had conducted an investigation into Highlights Hair and Makeup Salon in Blacktown (Highlights) in March 2011 during which Highlights was the subject of 2 visits by Departmental investigators. The first Tribunal noted that during the course of that investigation the owner of the salon Ching Mercado (hereinafter referred to as CM) was shown the applicant’s photograph and confirmed that she had worked at the salon but was not able to identify her by name. That Tribunal concluded that this evidence raised concerns as to whether or not the applicant undertook work experience at Highlights.

16. That Tribunal after considering a redacted copy of the Departmental investigation which was conducted on 21 March 2011 and 24 March 2011 concluded that the evidence collated as a result of that investigation was unsatisfactory and could not be relied on to draw adverse inferences. That Tribunal noted that:

    The investigators placed considerable weight on the fact that CM identified 28 students from their photographs as having worked at his salon but was unable to name most of them. It appears that no consideration was given to the fact that there could be a reasonable or valid explanation for this such as the large number of students who had worked in his salon over a period of years, the considerable time that had lapsed since they had worked there and the fact that they were from different ethnic backgrounds to CM and that he may have had difficulty pronouncing or remembering their names.

    The investigators also placed considerable weight on the fact that CM informed them in March 2011 that the salon was closed on Monday and Tuesday but some of his references referred to the salon being open from Monday to Saturday or 7 days a week. The investigators were especially concerned with the time period September 2008 to March 2009 when most of the applicants claimed to have worked at the salon. However, it would appear that CM was never asked for crucial information such as the days and hours of operation of the salon during the period 2008 to 2009 and whether there had been any changes to this overtime.

    Based on their observations and some limited information obtained in March 2011, the investigators concluded that Highlights could not have gainfully employed 6 to 8 students working 20 hours per week in 2008 and 2009. It would appear that no information (such as appointment diaries) were sought to ascertain the client base during the relevant period or consideration given to the fact that the students may have been working in shifts (as claimed by the first named applicant) rather than working there at the same time.

    For the above reasons, the Tribunal considers the Departmental investigation to be inadequate for it to make a positive finding that the applicant did not work at Highlights Hair and Make-up Salon. The Tribunal finds this evidence insufficient to make a positive finding that the applicant has given, or caused to be given, to a relevant assessing authority bogus document or information that is false or misleading in a material particular in relation to the application for the visas. Accordingly, the Tribunal places limited weight on the evidence from the Departmental investigators.

17. During the course of the review the first Tribunal wrote to CM on 9 July 2012 under s.359(2) of the Act seeking information from CM to corroborate that the applicant had in fact worked as an employee or volunteer at Highlights, the date she commenced work and the date she ceased work at Highlights, the details of dates and times that she worked at Highlights, the details of the tasks undertaken by the applicant during the course of her work and if she was employed, the provision of any payslips or group certificates issued to the applicant.

18. A response was provided by CM on 13 August 2012. The response included a letter dated 13 July 2012 which indicated that the applicant had been a volunteer Hairdresser at Highlights and had completed the requisite 900 hours of work between May 2008 and June 2009. The letter notes that “due to her being a diligent volunteer and a fast learner, I have issued her the pertinent Certificate of Volunteer Work as a Hairdresser, me being a duly recognised and competent instructor and assessor as per my certification issued by Workplace Skills Australia. Attached is a comprehensive data on the skills that she learned during her volunteer work in my business establishment, including her timesheets. Should you need further details, you may reach me at the above address and contact number/s.” Annexed to this letter was the Certificate of Volunteer Work indicating that the applicant had successfully completed work experience at Highlights; a Work Place Skills Australia Certification indicating that CM had completed a Certificate IV in Training and Assessment; a document indicating that the applicant had worked 20 hours a week whilst studying and more than 20 hours a week when she was not studying and summarising the duties of the applicant during the time that she worked at Highlights. The submission concluded with a statement from CM about the applicant stating that she “is always well groomed and punctual, which are both very important to the business. She is always willing to learn and participate in the day-to-day operations of the hair salon. She has great communication skills and works great in a team”.  Also attached were a number of time sheets from 15 October 2008 through to 29 June 2009 which showed a start time, a signature (the same signature), however one that was indecipherable, and the total numbers of hours worked. CM stated that these were time sheets that pertained to the applicant. There was no evidence adduced to negate this.

19. The first review Tribunal concluded that “the first named applicant gave oral evidence in relation to the days and hours of her work experience at Highlights Hair and Make-up Salon and they were consistent with her study commitments. The Tribunal generally found the first named applicant to be credible and accepted her evidence that she worked at Highlights Hair and Make-up Salon on a voluntary basis between 3 May 2008 and 22 June 2009. However, that Tribunal having regard to the evidence before it found “that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA did not accurately reflect the first named applicant’s employment at Highlights Hair and Makeup Salon during the period 3 May 2008 to 22 June 2009 as she did not perform the full range of duties as a Hairdresser as claimed. The letter conveys a false or misleading impression of the first named applicant’s capabilities, skills and experience as a Hairdresser.”  That Tribunal consequently found that the letter from Highlights had been provided by the applicant to TRA for the purpose of obtaining a favourable skills assessment, and contained information that was false and misleading at the time it was provided.

20. The first Tribunal questioned the applicant about the range of duties she had performed at Highlights between May 2008 and June 2009.  That Tribunal could not reconcile the evidence given by the applicant about the tasks she performed with the tasks she was purported to have performed in the reference from Highlights dated 19 October 2009. 

21. This Tribunal notes that the first Tribunal conducted its review hearing on 16 August 2012, some 3 years after the applicant had completed her work experience at Highlights.  That Tribunal’s concerns, as noted, were based on inconsistencies in the applicant’s oral evidence at the review hearing with regard to her duties when reconciled with the list of duties provided by CM in the reference of 19 October 2009 that was provided to TRA in order to obtain a favourable skills assessment . The first Tribunal also concluded that it was unsafe to rely on the report of the Departmental investigators because the investigation was conducted almost 2 years after the volunteer students in question had stopped working at Highlights.

    SECOND TRIBUNAL REVIEW

22. The second (differently constituted) Tribunal obtained a copy of the application form submitted to TRA by the applicant and discussed the contents of that application with the applicant at the review hearing. 

23. The second Tribunal had regard to the Departmental investigation in March 2011 and the observations made of Highlights during that investigation. The Tribunal during the review hearing which was conducted on 15 June 2016 noted that the applicant, in her application for the visa, in response to the question about past employment referred to work that she had undertaken at Highlights. The Tribunal noted that in the application the applicant had stated that her position was that of Hairdresser and the Tribunal noted that the applicant “did not qualify this in any way by saying that she was a trainee or that she did this work on a voluntary basis.”  The Tribunal concluded that the applicant had implied that she had undertaken the full duties of a Hairdresser throughout the period that she was a volunteer at Highlights. The Tribunal concluded that this was purposely false.  The Tribunal in its decision record made reference to the applicant’s oral evidence at review hearing that indicated for the first 200 to 300 hours she did not fulfil all the duties of Hairdresser and that it was only in the latter 600 to 700 hours that she worked under the direct supervision of CM.

24. The second Tribunal impugned the applicant’s claims to have worked at Highlights for the stated 900 hours on the following basis. The Tribunal found that the information provided by the applicant to TRA suggested that she had undertaken all of the duties of Hairdresser throughout her time at Highlights, as a professional, and not under supervision.  The Tribunal found that if it was to accept this information it may conclude that the applicant held herself out to have been employed on a remunerative basis as a Hairdresser and it followed that it could conclude that she gave information which was false or misleading in a material particular to TRA.  The Tribunal concluded that there were aspects of the information that the applicant had provided to TRA and to the Department which were inconsistent with her account of her work experience at Highlights. Having regard to this evidence the second Tribunal concluded that the reference provided to TRA did not accurately reflect the applicant’s work experience at Highlights and the Tribunal concluded that the applicant’s purpose in providing the letter from Highlights to TRA was in order to obtain a favourable skills assessment so that she could meet the criteria relevant to the grant of a Subclass 485 skilled visa.

    REVIEW HEARING

25. The Tribunal conducted a review hearing on 16 May 2019. As noted above the applicant and her husband attended the review hearing along with their representative.

26. The Tribunal made reference to the long history of this application since it was initially lodged in November 2009, the previous merits reviews conducted in 2012 and 2016 and the matters history through the Federal Circuit Court and Federal Court of Australia.

27. The Tribunal also made reference to the relevant regulatory criteria in issue, the process of merits review and the respective outcomes of the review.

28. The Tribunal noted that a critical document in issue was the reference provided by CM of Highlights dated 19 October 2009 which had been submitted to TRA for the purposes of a favourable assessment of the applicant’s skills as a Hairdresser. The Tribunal noted that the provenance of this reference had been called into question by the Department and by previous Tribunals during the process of merits review.  The Tribunal made reference to the investigation that had been conducted by Departmental officers in March 2011 questioning the capacity of the Highlights business to be able to provide 900 hours of work experience to 28 students over the time that it claimed to do so, given the size and scope of the business. The Tribunal noted that this suggested that the provision of this reference to 28 visa applicants to assist them with a favourable assessment by TRA indicated that Highlights may have been engaging in migration fraud for payment.

1. The Tribunal asked the applicant when she worked for Highlights, and the applicant advised that this was between 3 May 2008 and 22 June 2009. The Tribunal asked the applicant whether this coincided with her study and she advised that it did, as she was studying from April 2008 through to 2 June 2009. The applicant advised that she completed both a Certificate III in Hairdressing and a Diploma of Salon Management from Venus College in Sydney. The applicant advised that the College was located in York street Sydney close to Town Hall station.  The applicant advised that she engaged in 20 hours study per week and that she undertook 20 hours of work a week at Highlights. The Tribunal asked the applicant which days she worked on average, noting that the work was undertaken almost 10 years ago. The applicant stated that she often worked on weekends. The applicant stated that the salon was open during the week from Monday to Friday from 9am to 5pm sometimes closing at 6pm.  The applicant stated that on Thursdays the salon was open from 9am till 9pm and was open from around 9am to 6pm or 7pm on Saturdays and Sundays.  The applicant stated that she attended college on Mondays, Tuesdays and Fridays for the Certificate III and whilst undertaking the Diploma of Salon Management she attended the College for only 2 days per week. The Tribunal asked the applicant whether she ever worked at Highlights on a Monday. The applicant stated that from time to time she would work on a Monday. The Tribunal noted that CM was recorded by Departmental investigators to have advised them that the salon was closed on Mondays. The applicant stated that the salon was opened on Mondays and that this was incorrect.

2. The Tribunal asked the applicant what hours she worked on average. The applicant stated that her shifts ran from anywhere between 2 hours up to 9 hours a shift. The Tribunal asked the applicant about her first paid job as it had noted in the material before it that the applicant had obtained work with a healthcare agency as an assistant nurse. The Tribunal queried the applicant as to why she would engage in such work if she had qualifications and experience in hairdressing. The applicant stated that she had a friend that was working as a nurse’s assistant at the Abel Tasman Village in Chester Hill and that she applied for a job and obtained work with this nursing home. The applicant stated that she worked one hour each morning starting early and picked up a few additional hours each week. The applicant stated that she worked in this position between January 2009 and January 2010. The Tribunal noted that 6 months of this paid work, as an assistant nurse, was being undertaken at the same time that she was studying and undertaking work with Highlights. The applicant was invited to comment on this. The applicant advised that the combination of her study, work experience at Highlights, and paid work as an assistant nurse worked well because of the flexibility available to her at the Abel Tasman Village in Chester Hill.

3. The Tribunal asked the applicant why she obtained work as an assistant nurse rather than as a hairdresser. The applicant stated that she was born into a Sikh family and that when she came to Australia she was not initially practising. The applicant advised that she began to practice her religious beliefs and that Sikh’s are not allowed to cut hair or indeed anybody else’s hair because of their belief system. The applicant stated that it was not easy to find a job as a hairdresser or a volunteer hairdresser. The applicant stated that she was in need of money and she needed to find paid work which she eventually did as an assistant nurse where the demand was high.

4. The Tribunal asked the applicant how she was able to find a 900 hour placement with Highlights for work experience. The applicant stated that she approached a lot of salons. The applicant stated that there was a Sikh Temple located at Glenwood not too far away from Blacktown. The applicant stated that she was advised about the potential of work with Highlights through a friend. The applicant was asked whether she attempted to obtain hairdressing experience with other salons given that she lived in Berala. The applicant stated that she approached salons in Berala, Chester Hill, Chatswood, Parramatta, and eventually Blacktown. The Tribunal asked the applicant how she travelled to Blacktown to work at Highlights from her then residence in Berala. The applicant stated that she would catch a train to Lidcombe then change trains at Lidcombe to Blacktown and that the location of the salon in Patrick Street Blacktown was close by the station. The applicant stated that it would take between 40 to 45 minutes to travel to Blacktown from Berala.

5. The Tribunal asked the applicant how many permanent staff CM had working in the business during the time that she was engaged with the business. The applicant stated it varied depending on the day of the week that she worked. The Tribunal asked the applicant whether she was aware of any full-time or permanent part-time employees of the business. The applicant stated that there was a Fijian Indian hairdresser by the name of Shalindra that worked in the business along with 2 other employees a woman by the name of Jageep and a man by the name of Rajinder who worked part time. The Tribunal asked the applicant how many unpaid volunteer hairdressers worked at the salon during the time that she undertook work experience with them and she advised anywhere between 3 to 5, depending on the day she worked.

6. The Tribunal asked the applicant how many customers would attend the salon. The applicant stated that it was busier on weekends and it fluctuated during the weekdays, that it was hard to put a direct figure on the numbers and that she had some difficulty remembering. The Tribunal asked about the physical characteristics of the Highlights salon. The applicant advised that it was about one and a half times the size of the hearing room in which the review was being conducted and that it consisted of 8 chairs for cutting and two wash basins to wash hair.

7. The Tribunal asked the applicant what duties she engaged in when she was working at the salon from 3 May 2008 through 22 June 2009. The applicant stated that she would shampoo hair and condition hair, that she would wash towels, that she would put aprons on the trolley. The applicant stated that she was also involved in blow drying the hair and that after she gained more and more experience in the role she started to be involved in straightening the hair using Japanese hair straightening techniques and chemicals. The applicant stated that she was involved in the preparation of the colour trolley for the dying of hair and mixing of colours to ensure consistency and eventually was involved in undertaking particular cuts for clients. She advised that CM would always ask the customer if they were happy for the students to cut their hair and if so she would proceed to cut.

8. The Tribunal asked the applicant what she was taught to do in the role by CM.  The applicant stated she was taught to cut hair, to colour hair and bleach hair, to sterilise equipment, to understand the products for sale and to price products and display products to straighten hair using chemicals and a straightening iron. The applicant also stated that she learnt to undertake specialist hairdos for brides.

9. The Tribunal asked the applicant what difference existed in terms of the supervision of the volunteers and the paid hairdressers. The applicant stated that when she was working at Highlights that CM was very active in the supervision of volunteers that CM would stand close to the volunteers to provide oversight and direct instruction.

10. The Tribunal asked the applicant what she received in terms of remuneration and she advised that she was not paid for this work and that from time to time CM would provide $5-$6 for a coffee.

11. Once again the Tribunal made reference to the Departmental investigation conducted in March 2011. The Tribunal noted that it was clear from the investigation that CM had provided work references for 28 people claiming to have worked at Highlights for 900 hours around the same period that the applicant claimed to be working there. The Tribunal noted that the 900 hours equated to approximately 20 hours per week over one year. The Tribunal noted that the Departmental investigators determined that the evidence indicated that the size and scope of the salon was such that it would not have been able to provide the hours of work, the breadth of work experience claimed or been able to physically accommodate all of the trainees. The Tribunal noted that this evidence could lead it to find that the reference letter provided by CM to TRA was potentially false or misleading in a material particular. The Tribunal asked the applicant whether at the time that she submitted the reference to TRA she had read its contents and believed that it was an accurate reflection of what she had undertaken whilst working at Highlights. The applicant advised that prior to submitting it she had read it in full and that all of the duties listed were indicative of what she had undertaken whilst working at the salon. The Tribunal noted that this was somewhat replicated in her TRA application.

12. The Tribunal noted that the applicant had provided a document purporting to be a timesheet recording the number of hours of work experience undertaken by her and completed by CM. The Tribunal noted that it had looked closely at that document. The Tribunal noted that in that document the applicant was not mentioned by name, that the document included 25 days including one public holiday when she worked on a Monday and it also recorded a number of occasions where the applicant had worked more than 20 hours a week. The Tribunal asked the applicant whether she wished to comment on this. The applicant stated that the timesheet recorded the hours that she worked both during term time and outside term time and that she had worked a number of Mondays as previously advised.

13. The Tribunal noted that the first constituted Tribunal in its decision of December 2012 found at paragraph 115 that the letter from Highlights dated 19 October 2009 did not accurately reflect the applicant’s employment at the salon for the period 3 May 2008 to 22 June 2009 and that the applicant did not perform the full range of duties of a hairdresser as claimed. The Tribunal concluded that the letter conveyed a false and misleading impression of the applicant’s capabilities, skills and experience as a Hairdresser. The Tribunal concluded that this letter was provided to TRA for the purposes of obtaining a favourable skills assessment. The second constituted Tribunal in its decision of June 2016 at paragraph 42 found that the applicant had spent some time in the salon concerned on a voluntary basis but did not accept that the applicant had performed the full duties of a Hairdresser over the claimed period and also concluded that the reference by Highlights provided to TRA for the purposes of obtaining a favourable skills assessment contained information in it that was false and misleading.  The applicant was invited to comment on the respective findings of these 2 previously constituted Tribunals.  The applicant in response stated that she had engaged in all of the activities as described in the letter of 19 October 2009 and she had nothing further to add.

14. The Tribunal made direct reference to the letter of 19 October 2009. The Tribunal asked the applicant to provide details about some of the duties described in that letter.

15. The Tribunal asked the applicant to describe the perming process. The applicant stated that perming rods were used with an alkaline solution to curl the hair on a semi-permanent or permanent basis. After application of the perming rods a client would be placed under a hairdryer and upon completion of the perm the client would be given direction about how to care for the perm. The Tribunal asked the applicant about the differences between acid and alkaline solutions in perms. The applicant stated that she could not remember, however she advised that both solutions were used in the perming process.

16. The Tribunal asked the applicant what a solid form haircut was. The applicant stated it was a haircut where the Hairdresser cut hair up to a certain line following a specific line.  The Tribunal asked the applicant what a graduated haircut was and the applicant stated that you used your hands to move up the hair gradually cutting in layers both long lengths and short lengths and it was often used in men’s haircuts.

17. The Tribunal asked the applicant what the thermal Japanese straightening system was. The applicant advised that it was a hair straightening system applying a solution and using a straightening iron that made the hair straight on a semi-permanent or permanent basis.

18. The Tribunal asked the applicant about her recollection of products sold by Highlights and used on and sold to customers. The applicant stated Loreal, De Lorenzo and Lakme products.

19. The Tribunal asked the applicant what a catwalk design was. The applicant stated that the salon had a number of fashion magazines pertaining to haircuts that were presented in a catalogue. The applicant stated that clients would choose a haircut based on one of these catalogue designs. The Tribunal asked the applicant whether she had collated a portfolio during her studies or during her work at Highlights. The applicant stated that she had a portfolio put together when she was at College but she had not retained it.

20. The Tribunal asked the applicant whether she handled money at Highlights. She advised that she handled both cash and eftpos and that CM trusted her with transactions.

21. The Tribunal asked about the existence of customer cards and what they were used for. The applicant stated that they were for customers of the business to record the services that they had received, products that had been used, and future appointments and she described it as being like a coffee card and that a customer would obtain discounts for repeat visits.

22. The Tribunal asked the applicant whether she got to know any of the other students that were undertaking voluntary work at Highlights. The applicant stated there was a woman from her hairdressing college as well as a man from her hairdressing college who did voluntary work at Highlights but she could not recall their names.

23. The Tribunal took evidence from the applicant’s husband. He advised the Tribunal that he came to Australia in 2007 as the holder of a Student visa. The Tribunal asked him about his study history and he advised that he completed one year of a Masters of Information Technology course but did not complete his studies. The Tribunal asked the witness how long he had been in a relationship with the applicant and he advised that they have been together for 9 years. The Tribunal asked the witness whether he attended Highlights during the time that the applicant worked there. The witness stated that he attended the salon on a number of occasions for both haircuts and beard trims and that the salon was located in Patrick Street in Blacktown. The Tribunal asked the witness where he and the applicant were living at the time and he advised in Berala. The Tribunal asked the witness why he would travel to Blacktown for a haircut given that he lived in Berala. The witness stated that he was a Sikh and that he attended a Sikh temple near Blacktown at Glenwood and that he would pick the applicant up from the salon to attend the temple. The Tribunal asked the witness whether he had met CM and he advised that he had and that CM did a beard trim for him. The Tribunal asked the witness whether the applicant was paid for the work that she undertook at Highlights and he advised that she was given money for coffee and possibly tips from customers.

24. The Tribunal asked the witness whether there was any further evidence that he wished to provide. The witness stated that he visited the applicant at Highlights on a number of occasions and that she did undertake the work stated in the reference during the time that she attended Highlights. The witness stated that the applicant had been compromised by all the other people in this cohort and that she was one of the 28 who actually did undertake the stated work. The witness asked the Tribunal to consider all of the evidence very deeply. The witness stated that he was currently working as a courier and for the past 6 years had been working as a subcontractor with Australia Post.

25. The Tribunal raised with the applicant Subclause 4020(4) which provides that all of PIC 4020(1)(a) or (b) and (2) may be waived if the Minister is satisfied that the grant of the visa is justified by either compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. In the event that the Tribunal found that PIC 4020 applied in this case the applicant was invited to address waiver under PIC 4020(4).

26. The applicant stated that she wanted to mention that she had been undertaking voluntary work in her local Sikh temple in Revesby teaching the Punjabi language to 31 students connecting them to the language of their family. The applicant stated that she believed that this service was important and valued. The applicant stated that her child had been born in Australia and considered Australia to be his home country and did not wish to go to another country as it would impact on his future. The applicant stated that she came to Australia for a bright future and would find it difficult to settle in another country. The applicant urged that PIC 4020 be waived and she be allowed to stay in Australia with her family. The hearing concluded.

    DEPARTMENTAL INVESTIGATION AND EVIDENCE AS TO WHETHER APPLICANT WORKED AT HIGHLIGHTS SALON

27. The evidence before the Tribunal indicates that Departmental officers conducted an investigation into Highlights on 21 March 2011 and 24 March 2011. As has been noted the reference in issue from Highlights dated 19 October 2009 indicates that the applicant was employed for the purposes of work experience at Highlights from 3 May 2008 to 22 June 2009. The Tribunal notes that the investigation by Departmental officers was conducted almost 2 years after the applicant ceased work for Highlights.

28. As has been noted above the first constituted Tribunal expressed in its reasons for decision concerns about the investigatory procedures implemented by the Departmental investigators in March 2011. That evidence indicated that the investigators showed the proprietor of Highlights CM 28 photographs of skilled visa applicants which he was asked to identify a long time after they had purportedly worked there. CM is recorded to have advised that all of them had worked at his salon but he was only able to name 2 of them because they had been employed a long time ago. The investigators recorded that CM had advised them that all 28 visa applicants had undertaken 900 hours of work experience at his salon and that apart from 3 of them the rest had worked at the salon on a voluntary basis. When the investigators asked CM about any records that he kept of student employment periods he was able to produce a timesheet but it had no name on it and the last entry on the timesheet was for September 2009. The investigators recorded that CM did not provide consistent information in relation to the hours and days worked by the students. The investigators based on their observations of the business could not be satisfied that the salon had gainfully employed 6 to 8 students between September 2008 and March 2009.

29. This Tribunal agrees with the findings of the first Tribunal who determined that little weight should be apportioned to the report of the investigators due to clear flaws in the investigatory processes.  This is further compounded by the fact that the investigation was conducted a number of years after these students had been engaged.

1. Indeed the first Tribunal determined that the Departmental investigation was inadequate and that the evidence collated by the investigators was insufficient to make a positive finding that the applicant had given, or caused to be given, to a relevant assessing authority a bogus document or information that was false or misleading in a material particular in relation to the application for the visas.

2. The Tribunal has had regard to the first Tribunal’s request for further information in a letter dated 9 July 2012 and the response provided. This letter requested CM to provide evidence that the applicant had worked at Highlights, whether she worked as an employee or a volunteer, the date of her commencement and the cessation of work at the salon, timesheets pertaining to the applicant, details of all tasks undertaken by the applicant and any payslips or group certificates that may be applicable. In response CM provided a letter dated 13 July 2012 confirming that the applicant had worked as a volunteer hairdresser and had completed 900 hours of voluntary work between May 2008 and June 2009. CM also provided an updated reference about the scope of the duties and responsibilities of the applicant during the time of her engagement which corresponds to the information provided in the reference of 19 October 2009 and also provided 3 timesheets covering a period from October 2008 to March 2009 which CM claimed pertained to the applicant.

3. The first Tribunal concluded that the applicant gave oral evidence to the Tribunal with regard to the days and hours of her work at Highlights that were consistent with her study commitments. That Tribunal also found that the applicant was a credible witness and accepted her evidence that she had worked at Highlights on a voluntary basis between 3 May 2008 and 22 June 2009. However, as has been noted that Tribunal impugned the reference of 19 October 2009 on the basis that the applicant’s oral evidence at the review hearing was inconsistent with the breadth of tasks outlined in the reference letter.

4. The second Tribunal also had regard to the investigation conducted by Departmental officers on 21 March 2011 and 24 March 2011. The second Tribunal determined that there were aspects of the information provided to TRA and the Department which were inconsistent with the applicant’s account of her work experience at Highlights provided to the Tribunal in her oral evidence when compared with the breadth of duties outlined in the reference of 19 October 2009.

5. The second Tribunal accepted that the applicant had spent some time in the salon on a voluntary basis but did not accept that the applicant performed the full duties of a Hairdresser over the period claimed and that Tribunal also concluded that CM deliberately overstated the nature of the applicants work to assist her in having a positive skills recognition through TRA.

6. This Tribunal notes that the first Tribunal had a redacted copy of the Departmental site visit summary from March 2011.  Page 4 of that summary indicates that “a second visit indicated two clients and possibly another assistant helping the referee, however the business appears slow and did not convince me that the level of business could support the number of students performed.“  The report also notes that “names could only be remembered for 3 or 4 applicants. In a service industry such as hairdressing this does not appear to be convincing where first names would be consistently used for bookings and written down over a 12 month period.”  The investigators concluded that based on their observations and investigations they could not be satisfied about the veracity of the information that had been provided by CM.

7. The information contained in the redacted report by the Departmental investigators from March 2011 suggests based on the site visits that at least 4 applicants in the cohort of 28 appeared to be working in the salon during the period the applicant was purported to have worked there based on the fact that CM recalled the names for 4 of the applicants in the cohort. 

8. The investigators report concluded that they could not be satisfied as to the veracity of the information provided to them by CM, however the Tribunal notes that this occurred more than 2 years after the applicant had worked at Highlights and this needed to be considered in apportioning weight given to the report and the provenance of the findings reached by the investigators.

9. As noted, the first constituted Tribunal found that the applicant was a credible witness and concluded that she had worked for Highlights for the period claimed.  There is no basis from which to depart from that finding in the review conducted by the Tribunal at this, the third review before it.

10. The Tribunal as has been noted has evidence in the discredited report from March 2011 by Departmental investigators which indicates that at least 3-4 students appear to have been engaged by Highlights during the period that the applicant was volunteering there. 

11. The Tribunal notes that CM when requested to provide further evidence to the first Tribunal to corroborate the applicants work experience adhered to that request and provided an updated reference to supplement the initial reference dated 19 October 2009. In the updated reference CM described the applicant as being a diligent volunteer and a fast learner. He also provided evidence that indicates that he had been assessed by Workplace Skills Australia as meeting the competence levels for the issue of a Certificate IV in Training and Assessment. CM also provided time sheets purportedly pertaining to the applicant.

12. At the review hearing conducted by the Tribunal the applicant when asked very specific questions pertaining to the tasks she is recorded to have engaged with in the reference of 19 October 2009 was able to answer them in a coherent and comprehensive way.  The Tribunal found the applicant to be a forthright and credible witness.  The evidence of the applicant was corroborated by evidence provided by her husband at the review hearing where he confirmed that his wife had engaged in work experience at Highlights during the period claimed. He further confirmed that he had attended the salon on a number of occasions to have his hair cut and his beard trimmed and that when asked why he would not get this done at home by his wife gave a plausible response, namely, that the salon had everything that was needed for a wash and cut and beard trim, and it was convenient to attend there.

13. The Tribunal notes that it has had regard to another review pertaining to this cohort of cases that has been dealt with by the Tribunal (differently constituted) in matter number 1716066.  The applicant in that review did not attend the Tribunal hearing and the Tribunal was not able to test the evidence with that applicant in the way that this Tribunal has. That Tribunal determined the review on the basis of the information before it and affirmed the Departmental decision. The Tribunal acknowledges the importance of consistency in decision making but has found that in this review with the additional evidence that it has had before it and the capacity to test the applicant at hearing that there are cogent reasons for finding in favour of the applicant in this review.

14. The Tribunal finds that the applicant did engage in voluntary work with Highlights as a trainee hairdresser during the claimed period of engagement and that she did undertake the tasks that have been outlined in the reference provided by CM during the course of her 900 hours in that salon.  The Tribunal finds that the weight of the evidence before it leads it to conclude that the applicant was one of a cohort of trainee hairdressers that did in fact undertake work experience at Highlights.  The Tribunal reiterates that this finding and its departure from the findings of the 2 predecessor Tribunals is based on a thorough assessment and engagement with the evidence before it at review.  The work reference of October 2019 clearly indicates that the applicant completed the requisite 900 hours of salon experience as a trainee hairdresser and this is corroborated in the applicant’s description of the duties she undertook in her skills assessment application form and indeed in the evidence that she gave at the review hearing.  The Tribunal agrees with the submission made to it at review that there is no discernible difference between the tasks in the occupation of hairdresser or trainee hairdresser as the roles require undertaking the inherent tasks of the position and this is spelt out in the October 2009 reference. 

15. Further to this the reference of October 2009 attests to the fact that the applicant had completed the requisite work experience as a trainee hairdresser, her application to TRA included evidence of her completing the relevant study requirements and it was the combination of the reference and the formal qualifications that enabled TRA to assess whether the applicant had the requisite skill set and the applicants answers on the skills assessment form in the view of the Tribunal were not purposely false.

16. The Tribunal finds having regard to all of the evidence before it when considered both singularly and cumulatively indicates that the applicant has not given or caused to be given, to a relevant assessing authority, in this case TRA, information that is false or misleading in a material particular in relation to her application for a skilled visa.

17. Therefore, the applicant meets PIC 4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

18. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

19. There is no evidence before the Tribunal which indicates that the applicant or a member of her family unit had been refused a visa because of the failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa was granted or refused.

20. Therefore, PIC 4020(2) is met .

    Has the applicant satisfied the identity requirements?

21. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.  There is evidence before the Tribunal that confirms the applicant’s identity.

22. Therefore, the applicant meets PIC 4020(2A).

23. On the basis of the above, the applicant does satisfy PIC 4020 for the purposes of cl.485.224.

    DECISION

24. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 485 (Skilled - Graduate) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.485.224 of Schedule 2 to the Regulations.

    John Cipolla
    Senior Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5 Interpretation

    (1) In this Act, unless 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. 

    …