Kiranjeet (Migration)

[2019] AATA 2578

Kiranjeet (Migration) [2019] AATA 2578 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Kiranjeet
Mr Amit Kumar

CASE NUMBER:  1701831

HOME AFFAIRS REFERENCE(S):           BCC2016/4111038

MEMBER:Cathrine Burnett-Wake

DATE:25 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 25 March 2019 at 10:15am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – applicant had been working for an employer other than her sponsor – salon was not related to her sponsor – undertaking training – payslips and bank statements – no accompanying identity documents – must work only in a position in the business of the sponsor – not working for her approved sponsor – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 140, 348, 359A
Migration Regulations 1994 (Cth), Schedule 8 Condition 8107

CASES

Rani & Ors v MIMA (1997) 80 FCR 379

Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(b) of the Act on the basis the applicant had not complied with visa condition 8107(3)(a)(ii)(B) of Schedule 8 to the Migration Regulations 1994 (the Regulations) as it was found the applicant had been working for an employer, other than the sponsor, in the most recently approved nomination for the visa, or an associate entity of that sponsor. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act, which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 9 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Roger Hassan, the Director of AKY Pty Ltd T/A Galaxy Hair and Beauty Salon (Galaxy) along with Ms Charlene Trocio, a client of Galaxy.

5. The applicants were represented in relation to the review by their registered migration agent, Mr Sunil Sharma. The representative attended the Tribunal hearing.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) – non-compliance with conditions

8. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 is attached to the applicant’s visa. Of relevance in this case is condition 8107(3)(a)(ii)(B) which requires that the applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor.

9. The evidence before the Tribunal indicates that the applicant was granted the 457 visa on 4 March 2014 on the basis of a nomination by the sponsor Galaxy for the position of ‘hairdresser’.

10. On 11 January 2017, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by the Department, stating that it appears, based on information before it, that the applicant had been working for Preet Brothers Pty Ltd and that there was no information before the Department that this business was as an associated entity of the sponsor, Galaxy. The applicant provided a response to the Department which outlined she did not agree the visa should be cancelled. As is reflected in the decision record, she stated in writing:

    As a full time employee of AKY PTY LTD T/A GALAXY HAIR AND BEAUTY SALON, I have worked only for sponsor. I was advised to go at Preet Brothers Pty Ltd T/A Clayton Salon only for training purposes.

    Due to busy schedule, I was not able to attend the planned days for training at Preet Brothers Pty Ltd T/A Clayton Salon. My employer Roger Hassan re-organised for a training session at Preet Brothers Pty Ltd T/ A Clayton Salon 325 Clayton Rd Clayton VIC 3168, the planned days were changed by my employer (2-3times) the new period was planned on 25th November 2016 to 27th November 2016. The Clayton Salon employees were not aware about my training schedule and I am not aware they have made salon appointments on my behalf. Further, my training was organised by my employer and the owner of Clayton Salon’s. The purpose of the training was to understand use of Matris Coloring products and implement these products at Galaxy Hair & Beauty Salon.

11. A number of documents were also provided in response to the NOICC including:

    ·Letter from Clayton Salon’s Director;

    ·Statutory Declaration from AKY pty Ltd T/A Galaxy Hair and Beauty Salon’s Director, Roger Hassan;

    ·Commonwealth Netbank transactions record from 1 November 2016 to 24 November 2016;

    ·PAYG payment summary, period of payment 1 July 2015 to 30 June 2016.

12. Notwithstanding the applicant’s response and further supporting documents in response to the NOICC, the delegate proceeded to cancel the visa, and did so on 30 January 2017. The decision record for the cancellation outlines that on 25 November 2016, Departmental officers conducted a site visit at Preet Brothers Pty Ltd trading as Clayton Salon. From the site visit the Department officers gathered information that indicated:

    • The visa holder was part of Clayton Salon’s roster;
    • The salon appointment book shows the visa holder took appointments at Clayton Salon on 29/10/2016; 05/11/2016; 13/11/2016; 16/11/2016; 17/11/2016; 18/11/2016; 19/11/2016; 20/11/2016 and 25/11/2016;
    • Interviews held with Clayton Salon’s employees confirmed the visa holder was an employee of Clayton Salon.

    Evidence at hearing

13. The Tribunal took evidence from the applicants and witnesses in turn and separately to ensure each person did not hear the evidence given by the previous person. The Tribunal heard from the applicant first, whilst Mr Hassan, Mr Kumar and Ms Trocio waited outside the hearing room. Then the Tribunal heard from Mr Hassan, whilst Mr Kumar and Ms Trocio waited outside, then Mr Kumar while Ms Trocio waited outside, then finally the Tribunal heard from Ms Trocio.

    Evidence of review applicant at hearing:

14. At the commencement of the hearing, the review applicant confirmed to the Tribunal that she had read the Department’s cancellation decision; a copy of which was provided to the Tribunal at the time the review application was lodged. The Tribunal then proceeded to discuss the circumstances detailed in the Department’s decision record and the reasons for cancellation. Specifically, that she was found working at a salon in Clayton (Preet Brothers Pty Ltd trading as Clayton Salon) following a site visit conducted on 25 November 2016 and that this salon was not related to her sponsored employer, Galaxy, and that this determination was made on the basis of information the Department gathered from this site visit, that information being that the applicant appeared on the salon roster and that the appointment book held appointments at Clayton Salon for the visa applicant for 29/10/2016, 05/11/2016, 13/11/2016, 16/11/2016, 17/11/2016, 18/11/2016, 19/11/2016,20/11/2016 and 25/11/2016 and additionally, employees at Clayton Salon confirmed  to Departmental officers that the applicant was also an employee.

15. In oral evidence given by the visa applicant at hearing she stated that in 2016 her employer, Mr Hassan, decided that she had to go somewhere for training for different product knowledge and  the way people cut hair because where they were it was an all Australian population until around 2015, when they started to get more Indian clients. She said that the employer, through a friend of his, found a salon in Clayton and told the visa applicant that she should attend training at Clayton Salon. The applicant stated that her employer had made times for her to attend training in Clayton Salon; she said that because they were busy in the salon in Trafalgar that on a number of occasions she could not attend the training when it was scheduled. The visa applicant said she could not really recall the dates she attended the training. She did confirm, however, that she attended Clayton Salon on 25, 26 and 27 of November 2016. She further stated that she thought her employer had made previous training dates; however, he had to cancel them because they were busy in the Trafalgar salon. The review applicant gave evidence that she never went to that salon in Clayton any more than three times, and had no personal relationship with the owners of the salon and did not know them.

16. The Tribunal asked the applicant to explain what she did on the three days she claimed she was present at the salon in Clayton for training purposes. The applicant stated to the Tribunal that the salon would make bookings under her name, for example for a colour or a cut ‘Indian style’ and one of the stylists, who is employed by Clayton Salon, would stand with her whilst she coloured and cut the client’s hair, telling her what to do. The Tribunal asked the applicant to further expand about what that exactly entailed and how it was different to her usual tasks, including if there was a formal structure to the training and what type of instructions she was given and if there were training materials. However, the applicant said she would just cut and colour and was watched while she did it.

17. The Tribunal asked the applicant if she could explain why the salon had listed her on the roster. She stated she could not explain that. The Tribunal asked the applicant if she could explain why there were appointments booked under name. She stated that it was probably because she needed clients to train on, so they had booked them under her on the days she was meant to do the training, even though some of those days were cancelled and she never attended. The Tribunal also asked the applicant if she could explain why several employees of Clayton Salon told Departmental officers that she was also an employee. She stated she could not explain why they would say such a thing.

18. The Tribunal asked the visa applicant to provide an overview of her employment with Galaxy. In response, she told the Tribunal that she began working for Galaxy in 2013 part-time before her 457 visa was granted in March 2014, at which point she commenced working full-time as a hairdresser.

19. The visa applicant stated that when she first begun at Galaxy they were open seven days per week. However, because they were not very busy they reduced the days open to Monday through to Friday. She also stated that they often would close on Tuesday due to lack of clientele and, if they were not busy, they would also close early which could be a few days per week.

20. The visa applicant stated that approximately 15-20 clients would attend the salon whilst it was open in a day, and she personally would see between 10-12 clients per day.

21. The visa applicant stated that she was working with Galaxy up until the visa was cancelled on 30 January 2017. The visa applicant stated that she obtained work rights on her bridging visa after the cancellation; however, she was not working for Galaxy because the company had closed down. The applicant stated that she left employment with Galaxy in May 2018.

22. The Tribunal asked the applicant why she left Galaxy, to which she stated that it was because she had to travel 1.5 hours each day to get to work and because of all the visa troubles she’d been having, and that it got too much. The Tribunal outlined to the applicant that her 457 visa was granted on the basis that she was working with Galaxy, the nominated employer. The Tribunal asked her why, if she left Galaxy, she still wanted to continue with the review if she was no longer working for them. She said she wanted to continue with this visa because she was ‘honest with it and she was not cheating on it’. The visa applicant stated that if this application was successful before the Tribunal that her intention would be to rejoin her boss. The Tribunal asked how she would do that considering the business, as per her evidence, had closed down. She said that she thought Mr Hassan was working as a hairdresser for a place in Huntingdale.

23. The Tribunal asked the applicant if she could confirm when the business closed. She stated she was not sure but that her husband told her in October 2018.

24. The Tribunal asked if the applicant had any other applications pending. She initially confirmed just the 457 visa; however, upon further questioning; she also told the Tribunal that she had a pending 186 visa nomination and application before the Tribunal.

25. The Tribunal raised concerns with the applicant regarding the lack of documentation to support her claims in respect of her employment with Galaxy. The Tribunal asked that post hearing she provide payslips for all employment from 2014 up until she left employment. The Tribunal also asked for all PAYG summaries that had not already been provided.

26. The Tribunal also raised its concerns with the applicant about the lack of evidence from Clayton salon, specifically from the owners, in support of her case that she was not working there, and was undertaking training as claimed. The applicant said that she rang Clayton Salon for proof that she was doing training, and she said they gave her the letter that was submitted. The Tribunal discussed its concerns regarding the letter, firstly because it was unable to verify the letter and who it came from and what authority they had to issue such a letter, secondly because of its lack of detail pertaining to the claimed training, and thirdly because it did not explain why she was on the roster, why appointments had been made in her name or why other employees claimed she worked there. The Tribunal invited the applicant to provide further evidence from Clayton Salon post hearing to support her claims.

27. The Tribunal invited the applicant to tell the Tribunal what she would like it to take into account as part of its considerations.

28. The applicant stated that she wanted to make a good future for her and her husband, as they did a lot hard work and wanted to settle down and make a good future in Australia. The applicant said the hardship she would endure if the visa was to be cancelled is that she would have a mental breakdown, as she has been spending the last five years in Trafalgar, even when she followed the law. She said she also planned for further study, and could not do this if her visa was cancelled, and that everything would be gone.

29. The Tribunal asked the applicant what her plans would be if it were to set aside the cancellation as, even if the visa had not been cancelled, it would have expired on 4 March 2017, and also because the salon does not exist anymore there is no job for her, nor is there any evidence before the Tribunal of a new sponsor. The applicant told the Tribunal that she plans to continue working as a hairdresser at Just Cuts where she currently works, that she will go on to further study and hoped to apply for a student visa.

    Evidence from Mr Roger Hassan

30. Mr Roger Hassan confirmed that he was the Director of Galaxy. He stated that the applicant started employment with him in 2013. He said that she was sponsored on a 457 visa, was employed as a hairdresser and also managed the shop. He stated that she was employed up until five months ago. He said he had no idea why she left employment. He claimed that she had worked five days per week and that there were four employees with a high turnover of staff.

31. The Tribunal asked Mr Hassan what the current state of the business was. He said he was not sure if the business was operating, as he was in the process of closing it because he lives too far away from it. He said he has had a girl running it, but he does not know if or when it is open. He said as it is closing he does not really care about it or what goes on. The Tribunal remarked to Mr Hassan that this seemed highly unusual, but Mr Hassan just said he had no interest in what happened as he had other things to do and is working elsewhere in Melbourne as a hairdresser.

32. The Tribunal asked Mr Hassan if he knew about the visa applicant’s visa being cancelled and on what grounds. He confirmed he did and it was about working for another salon, but that she was not working, she was training. The Tribunal asked Mr Hassan if he could tell the Tribunal if he sent the applicant on training, why he did, when it occurred and the details surrounding the training. He said he could not remember what year he sent her for training, other than it was in the month of November. He said he sent her for training to develop more skill. He said a friend of his found a salon in Clayton. He stated that he said to the visa applicant that she should attend training at Clayton Salon because he heard the owner of Clayton Salon was good. He said that two friends of his organised the training. He said he could not recall the names of his friends who organised it or any other details. He also said he could not recall how many days the applicant attended the training; he could only recall it was ‘a few times’. Mr Hassan stated to the Tribunal that he had still ‘paid her’. The Tribunal asked if he or the visa applicant knew the owners of Clayton Salon personally, to which he responded ‘no’, and that he had found out about the salon through his friends.

    Evidence from Ms Charlene Trocio

33. Ms Charlene Trocio gave verbal evidence that she was a client of Galaxy. She stated that her mother lived in Trafalgar and that, although she lived in Melbourne, she would on occasion, whilst visiting her mother, attend the hair salon. She stated that it was on one of these visits that she met the applicant, who she then developed a friendship with. The Tribunal asked Ms Trocio if she knew if the salon had closed, or if the applicant still worked there. Ms Trocio said she did not know if the applicant was still at Galaxy, or if the salon had closed down. She commented that it had been a while since she had been there, maybe a year or so.

    Evidence from secondary review applicant Mr Kumar

34. In his verbal evidence to the Tribunal, Mr Kumar, the husband of the applicant, confirmed that the applicant was working for Galaxy until a few months ago. He stated that she left around May 2018. He said he could confirm that she did work there, as he would often drop off and collect the applicant in Trafalgar, which was a 1.5 hour trip and was a long way from their home. Mr Kumar confirmed the applicant was currently working as a hairdresser with Just Cuts in a shopping centre in Melbourne. He said that his wife had not worked for Clayton Salon and it was training.

    The representative

1. The representative gave verbal submissions at the conclusion of the hearing. He stated that the business was impacted because of the cancellation. The Tribunal remarked to the representative that such a claim was at odds with the evidence that had been given earlier by the applicant and Mr Hassan. As the applicant stated she had left of her own free will and because it was far away from where she lived, and that the business owner gave evidence that he was no longer interested in it as he lived too far away and had other things he was doing. Further, that Mr Hassan did not give evidence to the Tribunal that the reason he was closing down the business was due to the applicant’s departure, even when specifically asked.

   Post hearing evidence

2. The Tribunal received a number of documents post hearing.

3. Numerous payslips and bank statements in the applicant’s name were provided to the Tribunal dating from 2014 until May 2018.

4. The Tribunal received a handwritten statutory declaration from what appears to be in the name of ‘Manoj’. This individual has not put in a surname. Furthermore, there are no accompanying identity documents, such as a passport or driver’s licence to verify the identity of Manoj. The statutory declaration states:

   Kieran G to has attended training session in Clayton salon. I was there to supervise her. Now I am not working in Clayton salon. I had left my job since two years.

5. The Tribunal received a handwritten statutory declaration from the applicant dated 24 November 2018. It states:

   I left my job, because I faced my moral breakdown, mental stress, I’ll be more than happy to rejoin my job if I get my Visa back. It will open lots of opportunities, I can study, I can beat (sic) my old customers and friends apart from this, I can think about my family.

   Adverse information

6. After the hearing the Tribunal became aware of information contained on a Department file note which recorded a conversation a Department officer had with the applicant. The information in the file note indicated that a previous statement the applicant made to the Department was not consistent with the evidence that was provided at hearing. As such, the Tribunal, pursuant to s.359A of the Act, sent the applicant a letter to provide comment on this information. The letter stated:

   At hearing on 9 November 2018, the Tribunal questioned you at length regarding the findings the Department made that you had been working at Preet Brothers Pty Ltd trading as Clayton Salon. You stated to the Tribunal that you had not worked at the Clayton Salon and only attended for the purposes of training, and that Mr Hassan, your employer at AKY Pty Ltd trading as Galaxy Hair and Beauty had organised the training for you through a friend of his and you just attended the training when he told you to. You also told the Tribunal you had no connection to the Clayton Salon and you did not know the owners.

   Mr Hassan also gave oral evidence to the Tribunal that he had heard about the salon in Clayton through a friend of a friend that these two friends organised the training for you. He also stated that there was no connection between him and the owners of the salon or yourself and the owners of the salon.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   The Tribunal has obtained a file note from the Department resulting from a conversation between a departmental officer and yourself which occurred on 5 December 2016. The file note prepared by the departmental officer following this conversation is attached to this letter. The information provided by you to the departmental officer on 5 December 2016, as set out in the file note, differs and is not consistent with the verbal evidence provided by both yourself and Mr Hassan at hearing on 9 November 2018. Specifically, the statements you made to the departmental officer on 5 December 2016 were that you ‘know the owners and you asked them if you could come to their salon to learn new techniques’ and that ‘the owners of the salon are friends of yours and they had asked you to work at the salon.’ These statements to the departmental officer differ and are not consistent with the verbal evidence provided to the Tribunal at hearing by both yourself and Mr Hassan.

   The information is relevant as it casts doubt on your credibility as a witness, as well as Mr Hassan’s credibility as a witness, because both you and Mr Hassan stated to the Tribunal that Mr Hassan organised training through a friend of his, and that the owners of the salon were not known to either of you.

   This apparent inconsistency between the oral evidence and the information contained in the file note, based on previous statements you made to the Department, may cast doubt generally on all the evidence both you and Mr Hassan have provided to the Tribunal in response to the findings of the Department that you worked at the Clayton Salon.

   If the Tribunal relies on this information in making its decision, it may conclude that you were working at the Clayton Salon. The consequence of this information being relied upon would mean that the Tribunal could find that you did not comply with condition 8107 which was attached to your 457 visa.  Specifically, 8107(3)(a)(ii)(B), which requires that you must work only in a position in the business of the sponsor or an associated entity of the sponsor.

   Response to adverse information

7. In response to the Tribunal’s letter, the applicant provided an updated statutory declaration for herself, a statutory declaration for Mr Hassan, a statutory declaration from Manoj (already on file), payslips for the month of November 2016 and bank statements for the month of November 2016.

8. The statutory declaration from Mr Hassan states that the applicant only attended Clayton Salon for training, and that it was organised through a friend of friends. The declaration also states that the decline of his business was due to uncertainty of the applicant’s visa status.

9. The statutory declaration from the applicant states that she only attended training at Clayton Salon from 25-27 November 2016, that she was not paid by Clayton salon, and that it was to learn new techniques, and to understand  the use of Matrix Colouring products and to implement these techniques at Galaxy. The statutory declaration goes on to claim that she did not know the owners personally, that the conversation with the Department officer was that she knew them professionally and that the use of the term ‘friend’ is due to a misunderstanding. She requested the Tribunal to consider her responses in context, taking into consideration that she was nervous and stressed during the interview and also that English is not her first language, so she may not have answered questions accurately over the phone. The applicant also states that she was suffering from mental health issues at the time and that she was not aware doing training was a breach of visa conditions.

10. On 4 February 2019, the applicant sent an email to the Tribunal outlining that she had sent her documents and that she had dreams to fulfil, including studying a master in law.

11. On 12 March 2019, the applicant sent a further email to the Tribunal outlining that she was going through mental trauma because of the process, and requested the Tribunal to consider all documents and provide a fair decision.

    Tribunal’s findings on the evidence before it

12. The explanations provided to the Tribunal by both the applicant and Mr Hassan were not persuasive and lacked corroborative evidence from Clayton Salon where the claimed training took place.

13. The Tribunal notes that the applicant, in her most recent statutory declaration, claims that her grasp of English and nervousness at the time of interview with the Department may have impacted her answers. However, even if she was nervous and her English waivered during the interview, her explanation for the misuse of ‘friend’ does not address the lack of corroborative evidence from the Clayton Salon to support her claims she was participating in training only. The statutory declaration also does not address the statement she made to the Department that she had been asked by the owners to ‘work’ at the Clayton Salon.

14. The Tribunal notes the payslips, bank statements and PAYG statements submitted by the applicant. These demonstrate that payment appears to have been made to the applicant from Galaxy. The Tribunal further notes the statutory declarations from several claimed clients and Ms Trocio’s verbal evidence at hearing that the applicant worked at Galaxy. However, this information does not assist the Tribunal in determining whether the applicant was or was not working at Clayton Salon. Working for and being paid by Galaxy and working at Clayton Salon are not mutually exclusive events. All the payslips and statements demonstrate is that the applicant was working for and receiving payment from Galaxy. They do not prove she was not working at Clayton Salon.

15. The Tribunal gives the statutory declaration from Manoj, who claims responsibility for training the applicant, little weight. The reasons being there is no accompanying evidence of the identity of this person. Additionally, there is no supporting evidence to demonstrate that Manoj worked for Preet Brothers Pty Ltd.

16. The Tribunal is not satisfied with the explanation provided by the applicant nor Mr Hassan about the training. It does not adequately explain why employees at Clayton Salon would tell the Departmental officers that the applicant was an employee when she was not. If she was undertaking training, as claimed, it is reasonable to expect that the employees of Clayton Salon would state as such. There would be no logical reason for the employees to tell the Departmental officers that the applicant was an employee when she was not, especially as there is no gain for them in doing so.

17. The Tribunal is not persuaded by the applicant’s claims. There is inconsistency in both her and Mr Hassan’s evidence at hearing compared to previous statements, and as put to the applicant in the s.359A letter and subsequent statements in response to the s.359A letter. The inconsistencies raise serious concerns about the truthfulness of the claims regarding why the applicant was at the salon in Clayton as found by the Department officers on 25 November 2016.

18. Additionally, the evidence provided by Mr Hassan during the hearing was often vague, evasive or did not answer the question asked of him. For instance, when asked the names of his friends who arranged the training, he could not provide names or details about who they were or the relationship he had with them. The Tribunal does not find it plausible that he could not recall the names of friends or the type of friendships he had with them.  Mr Hassan was unable to answer numerous questions put to him by the Tribunal. Multiple times, he would respond to questions by saying he ‘could not remember or recall exactly’.  The lack of detail and the vagueness of Mr Hassan’s responses to the questions, only gives rise to the Tribunal’s concerns about the truthfulness of his answers.

19. The Tribunal also finds the explanation that the applicant needed experience in ‘Indian hair’ to not be convincing, and contradicts the reasons for requiring training in the Matrix colour system, which she claimed to the Department in response to the NOICC and in the statutory declaration received by the Tribunal in response to the s.359A letter. Given the applicant was already a fully qualified hairdresser, with several years of post-qualification experience at this point, the Tribunal finds the explanation at hearing about what the training entailed and why it was required would not be consistent with the type or level of professional development that would be expected to be given to a fully qualified hairdresser with several years’ work experience, who from her own evidence was seeing up to 15 clients a day and was already performing colour and cut services. Further, the applicant did not explain the difference between colours and cut ‘Indian style’ and how that differed to the usual way a colour and cut occurred for the general population.

20. The Tribunal also has concerns about several statements made by Mr Hassan and the applicant, specifically in relation to the business as an ongoing viable concern. The evidence provided by both of them at hearing was that there had been a decline in business until it was closed. The evidence was that first it was open for seven days, then four, and then would shut early if there were not enough clients.

21. There were claims by the representative at the end of the hearing that the downturn of the business was because of the applicant’s visa issues; however, the evidence given by the applicant and Mr Hassan was that there had been a downturn in business whilst she was there, and that the applicant left on her own accord. Both the applicant and Mr Hassan gave evidence that often it was not busy so they would close the shop early, or not open at all.

22. The Tribunal notes that the statutory declaration provided by Mr Hassan in response to the s.359A letter states that the salon is not operational due to the ongoing uncertainty of the applicant’s visa status. However, this claim is in contradiction to the verbal evidence given at hearing by both Mr Hassan and the applicant. 

23. On balance, after weighting up the information before it, the Tribunal has formed the view that the visa applicant has failed to provide information or evidence to persuade it that the information gathered by the Departmental officers on the day of the site visit on 25 November 2016 regarding her working at Clayton Salon was incorrect.

24. Although the visa applicant and Mr Hassan have both claimed she was only training, the Tribunal has significant concerns about the verbal evidence they both provided at hearing and their overall credibility. Furthermore, the evidence supplied in the form of the letter from Clayton Salon and the later statutory declaration from Manoj does not reasonably or adequately explain, or in any way refutes, that the applicant was not working for Clayton Salon. The evidence the Departmental officers gathered is, in the Tribunal’s opinion, more persuasive than the claims the applicant has put forward.

25. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(b) exists, as condition 8107(3)(a)(ii)(B) requires that the applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor. The Tribunal finds that the applicant was working at Clayton Salon, which is not in a position in the business of the sponsor or an associated entity of the sponsor. As s.116(b) does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

26. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

27. The Tribunal has taken into account all of the evidence before it.

28. As detailed above, the applicant claimed that she was not working at Clayton Salon and was present the day the Department undertook a site visit, and on two other occasions because she was undertaking training.

29. The purpose of the 457 visa is for an applicant to work on a temporary basis (usually for up to four years) for an approved sponsor in an approved occupation. The applicant’s 457 visa has been cancelled by the Department because it was found that she was not working for her approved sponsor and was in breach of condition 8107(3)(a)(ii)(B), which requires that the applicant must work only in a position in the business of the sponsor or an associated entity of the sponsor.  As the applicant’s visa was cancelled because it was found she was not working for her sponsor, she was not fulfilling the purpose of the 457 visa and this weighs strongly in favour of cancelling the visa.

30. The Tribunal has had regard to the evidence and submissions made by the applicant. The Tribunal considers that the purpose for which the applicant was granted her most recent 457 visa was to work in the occupation of hairdresser with Galaxy and that purpose ended in May 2018 when the applicant ceased working for that company. The applicant gave evidence that she planned to continue her work at Just Cuts, or undertake further study. However, neither is in line with the purpose of the original visa grant, which is to work as a hairdresser with Galaxy.

31. Having regard to the purpose of the 457 visa, the Tribunal considers that the above circumstances weigh in favour of cancelling the 457 visa. 

32. The Tribunal has considered the applicant’s compliance with visa conditions and is satisfied that other than condition 8107(3)(a)(ii)(B) she has complied with visa conditions.

33. The Tribunal has also considered the circumstances in which the ground for cancellation arose. The applicant has not been able to sufficiently substantiate to the Tribunal’s satisfaction that she was not working at Clayton Salon. The Tribunal finds that the evidence the Department gathered, that she was listed on a work roster, along with multiple appointments booked across multiple days and having other employees who are independent witnesses, attesting the applicant was an employee, more persuasive than her and Mr Hassan’s verbal claims to the contrary and their statutory declarations which in part contradict earlier evidence they gave. The Tribunal finds that these circumstances weigh in favour of cancelling the applicant’s visa.

34. The Tribunal has also considered the hardship that may be experienced if the visa is cancelled.  However, corroborative evidence pertaining to hardship has not been provided, nor has any information been submitted to the Tribunal pertaining to the applicant’s poor current mental health, which she claims to be suffering.

35. The Tribunal has also had regard to the mandatory legal consequences of cancellation. The applicant currently holds a Bridging E visa and will only be subject to detention if she does not continue to hold visas to remain lawfully in Australia or refuses to depart voluntarily. The applicant will not have to immediately depart Australia if the visa is cancelled and can apply for further Bridging E visas. If the visa is cancelled the applicant will be affected by s.48 of the Act and will have limited options for applying for substantive visas onshore without the intervention of the Minister. However, the Tribunal is aware that a permanent residency nomination and associated visa application has been lodged by the applicant and is currently before the Tribunal at review. The outcome of these applications are yet to be determined. The visa applicants will be entitled to stay in Australia until the outcome of these are finalised.

36. In relation to consideration regarding international obligations, there is no evidence provided to the Department or before the Tribunal, and the applicant has not claimed, that any international obligations would be breached as a result of the cancellation. 

37. The Tribunal has considered and weighed up all of the relevant circumstances in this case. The Tribunal acknowledges that the applicant may experience hardship, including financial and emotional hardship, if the visa is cancelled. The Tribunal also accepts on the basis of the evidence before it that the applicant has generally complied with visa conditions and has been cooperative with the Department. While these circumstances weigh in favour of the applicant, the Tribunal gives more weight to the purpose of the 457 visa and the fact that the applicant was found to not be working for her approved sponsor and was in breach of condition 8107(3)(a)(ii)(B).

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

   DECISION

2. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

3. The Tribunal has no jurisdiction with respect to the second named applicant.

   Cathrine Burnett-Wake
   Member