Parekh (Migration)

[2018] AATA 2713

Parekh (Migration) [2018] AATA 2713 (23 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Komalben Nipunj Parekh
Mr NIPUNJ PAREKH

CASE NUMBER:  1714884

DIBP REFERENCE(S):  BCC2015/3412478

MEMBER:Denise Connolly

DATE:23 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa.

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 23 May 2018 at 1:29pm

CATCHWORDS
Migration – Cancellation – Employer Nomination (Residence) (Class BW) visa – Subclass 857 (Regional Sponsored Migration Scheme) - Whether the ground for cancellation exists – Whether the applicant made a genuine effort to be engaged in employment for the required period – Where sponsoring business ceased operating – Where the applicant’s husband owned the sponsoring business – Significant periods of sick leave taken – Where the sponsoring business’ ceasing operations was beyond the applicant’s control – Genuine attempt made to engage in employment – Decision set aside and substituted

Practice and Procedure – Consequential cancellation does not involve a reviewable decision – Tribunal has no jurisdiction to review a consequential cancellation

LEGISLATION
Migration Act 1958 (Cth), s 137Q, 137T, 348, 359A, 359AA, 375A
Migration Regulations 1994 (Cth), r 2.50AA

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 11 July 2017 to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa under s.137Q of the Migration Act 1958 (the Act).

2. The first named applicant (the applicant) was granted a Subclass 857 visa on 15 May 2013. The delegate cancelled the visa under s.137Q(2) on the basis that the applicant’s employment referred to in the relevant employment nomination was terminated within the required two year period and the applicant was unable to satisfy the delegate that she had made a genuine effort to be engaged in the employment for the required period. 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 that with respect to the applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.137T(1) of the Act. As no decision was involved in the visa cancellation under s.137T(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. On 23 February 2018 the Tribunal invited the applicant to attend a hearing on 26 March 2018. On 2 March 2018 the representative, a registered migration agent, requested that the hearing be postponed until a date between 8 May and 21 May 2018 because he would be overseas. The Tribunal declined to postpone the hearing and asked for the representative’s contact telephone number while he was overseas so that he could participate in the hearing by conference telephone. He agreed to do this

5. The applicant appeared before the Tribunal on 26 March 2018 to give evidence and present arguments. Her representative also attended the hearing by conference telephone, along with another migration agent from the same organisation, who attended in person.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.137Q the Minister has the power to cancel a ‘regional sponsored employment visa’ on specified grounds. ‘Regional sponsored employment visa’ means a visa of a kind included in a class of visas that has the words ‘Employer Nomination’ in its title and is prescribed by the regulations for the purposes of the definition in s.137Q(3). The visas currently prescribed by r.2.50AA of the Migration Regulations 1994 are: Subclass 119 (Regional Sponsored Migration Scheme); Subclass 187 (Regional Sponsored Migration Scheme) and Subclass 857 (Regional Sponsored Migration Scheme).

8. The applicant has provided to the Tribunal a copy of the delegate’s record of decision to cancel the visa under s.137Q of the Act. It sets out the following information.

9. The applicant was sponsored to be employed as a hairdresser by Niki’s Hair Salon Pty Ltd located in Moss Vale, in regional NSW. The contact person listed on the Form 1054 - Employer Nomination under Regional Sponsored Migration Scheme is Miss Sangita Devi Gounder.  The visa was granted on 15 May 2013, requiring the applicant to work as a hairdresser at the salon in Moss Vale.  

10. Before the visa was granted there had been a site visit undertaken by the Department in August 2012 and concerns were raised as to whether the business was operating. However the delegate making the decision to grant the visa made a case note on 10 May 2013 that the applicant had provided further evidence and she was satisfied that the business was actively and lawfully operating in Australia.

11. The Department’s records indicate that in September 2014 the Department received an allegation that the business was owned by the applicant’s husband and that he opened the business for his wife’s permanent residence application.  The informant alleged that the applicant had claimed that she was living in the Moss Vale area but she was actually living in at [an address in] Parramatta.  The informant also alleged that the applicant was working for cash somewhere else as the husband had closed the shop, and that the wife was not actually working at the business.  The records do not indicate that the Department took action in response to this allegation.

12. The Department’s records indicate that the applicant applied for Australian citizenship in June 2015. The Department sent the applicant a letter on 9 September 2015 inviting her comments on information which the delegate considered indicated that the applicant is not of good character. The decision record for that application indicates that the delegate decided the applicant was not of good character and refused the citizenship application (on 25 July 2017, after the visa cancellation, the subject of this review).

13. The applicant was issued with a Notice of Proposed Cancellation (Notice) on 17 January 2017 under s.137Q(1) on the grounds that the delegate had formed the view that the applicant did not commence her employment with her sponsor Niki’s Hair Salon Pty Ltd within six months of the grant of her Subclass 857 visa.

14. The Department received responses to the first Notice on 15 March, 24 April and 17 May 2017. In the responses the applicant provided evidence claiming that she had commenced her employment with her sponsoring employer on 28 May 2012, within the prescribed period of six months from visa grant. In the April 2017 response the representative stated that the applicant worked at the salon up until December 2013. He indicated that the applicant was due to resume work in January 2014 but did not due to her health. She had commenced IVF treatment in June 2013.  She had fallen pregnant but miscarried on 13 January 2014. Due to her medical and emotional state she did not return to work and ceased employment. She subsequently underwent further IVF treatment. The representative claimed that the applicant’s medical condition was such that she was not able to engage herself in the employment for the requirement employment period. It was submitted that the applicant would have engaged in the employment for the required period if not for her medical condition.

15. The delegate requested further evidence about when the applicant ceased her employment with Niki’s Hair Salon. The representative responded acknowledging that her employment ceased on or about 24 December 2013 and that she had not been employed in her occupation since. Based on that information the delegate issued a new Notice on 19 May 2017 on the grounds that the applicant’s employment terminated within the required employment period, for the purposes of s.137Q(2) 2 years starting on the day the person commenced that employment.

16. The applicant responded to the second Notice on 7 June 2017. In this response it is asserted that the applicant’s employment was terminated within the required period. The representative stated that the applicant moved to Bundanoon after she took up full-time employment at the salon in about May 2013.  She continued to work on a full-time basis until December 2013 when the business shut for the season break. She was to resume work in the second week of January 2014 but she had a miscarriage on 13 January 2014. On about 3 February 2014 the applicant received a letter from her employer Sangita Devi advising her that the business was closing effective 3 March 2014. The employer had also sent an email to the real estate agent on 26 February 2014 advising it was surrendering its lease. The representative asserted that after a second IVF attempt in March 2014 the applicant actively searched for work in the period May to August 2014. She underwent a third IVF treatment in September 2014 and she searched for work from November 2014 to May 2015.  The representative provided further evidence about subsequent IVF treatments and a copy of the letter from the business signed by “Sangita Devi Director” stating:

    I regret to announce that we are closing our Business named Niki’s Hair Salon effective 03/03/2014 due to financial reasons.

    For that, as a business owner I am giving you a one-month prior notice. We will make full payout of all monies and leave outstanding prior to our closure.

17. Having considered this evidence overall, the applicant provided evidence that she commenced employment within the prescribed period in the form of payslips, bank statements for the employer and the applicant, and appointment books and staff rosters which covered an employment period from May 2013 until November 2013. The applicant also provided evidence that she commenced employment with the sponsoring employer on 28 May 2012 and provided payslips for the period 28 May 2012 to 25 June 2012, and a PAYG payment summary for the financial year ending 2012 indicating gross payments of $740.  Initially, in the April 2014 response, it was stated that she was no longer employed by the sponsoring employer after having ceased her employment on or about 24 December 2013, due to her medical condition resulting from undergoing IVF treatment. She provided medical discharge reports and receipts of IVF treatment cycles undertaken between June 2013 and June 2016, and a report of a miscarriage at six weeks’ gestation on 13 January 2014. It was stated that she needed to take substantial bedrest after treatments and as such was prevented from continuing her employment as a hairdresser at Niki’s Hair Salon.

18. In response to the delegate’s request for clarification as to when she ceased her employment the applicant provided a letter from Sangita Devi, who claimed to be the owner of Niki’s Hair’s Salon, dated 3 February 2014, advising that the salon was closing on 3 March 2014 for financial reasons. The applicant indicated that she had intended to return to work upon her recovery in 2014 but then she received the letter of termination. The applicant claimed the circumstances surrounding the termination of her employment were beyond her control. She provided email correspondence between Sangita Devi, and a real estate agent, Diane Aird of CIPS Real Estate dated 26 and 27 February 2014 confirming that the business would be ending its lease.

19. The applicant also provided a letter regarding her medical practitioner, Dr Elham Nashed of Nashed Medical Clinic, Merrylands dated 23 May 2017 which indicates that the applicant had been a patient of Dr Nashed for four years, since early 2013 and that she had received six IVF treatments with a negative result. Dr Nashed advised that, during the course of the period that the applicant had been receiving the IVF treatment, she was unfit for work and, under medical advice, was placed under complete bedrest for a minimum period of two weeks post each IVF treatment, and thereafter she was advised not to stand for extended periods nor carry out any form of strenuous exercise or other work that may require lifting. For these reasons he formed the view she was unable to pursue any work for this period.

20. The applicant claimed that upon termination of her employment she tried to find other employment at hairdressing salons in the same regional area. She provided a typed list of hairdressing salons around the Moss Vale, Bowral area and included the date of job applications. She also provided a scan of her diary listing hairdressing businesses to which she had submitted her resume or contacted to inquire about job vacancies in the period May 2014 and May 2015. She asserts that by looking for work she satisfied the Minister that she had made a genuine effort to be engaged in employment for the required employment period. She also claimed that because she and her husband have now settled and are living in regional NSW since late 2012 that this should be looked upon favourably. Her husband is a Store Manager and Operator of a Pizza Hut restaurant in Wagga Wagga. She provided a reference letter from her husband’s employer and his payslips.

21. On the basis of the information provided the delegate found that the applicant’s employment terminated within the two year employment period, on or about 24 December 2013. The delegate noted that the applicant had provided two different dates as to when her employment at the salon ceased, on or about 24 December 2013 due to her medical condition, and on 3 March 2014 after having being given a month’s notice by her employer. The delegate noted however that both employment termination dates fell within the two year period. The delegate raised her concern about what she considered to be contradictory information regarding the circumstances in which the applicant’s employment ceased. She formed the view that this placed serious doubts on the reliability of her account. She noted that the applicant had provided medical discharge reports and receipts in relation to her IVF treatment cycles undertaken between June 2013 and June 2016 and a report of the miscarriage on 13 January 2014. She noted the applicant had stated she needed to take substantial bedrest after treatments and as such was prevented from continuing her employment and she ceased work on or about 24 December 2013. However the delegate noted that in the first instance there was no medical certificate indicating that the applicant was medically unfit for work during these periods. The delegate noted, only after being issued with the second Notice on 19 May 2017, the applicant provided the letter from Dr Nashed dated 23 May 2017 which states that during the entire duration of her IVF treatment the applicant was unfit for work and unable to pursue any kind of work for this period. She noted that this period referred to by Dr Nashed coincides with the period that the applicant claims to have been in active employment, that is, from June 2013 when she commenced her IVF treatment until December 2013. 

22. The delegate also noted that the applicant had provided evidence of seeking new employment between May 2014 and May 2015, a period which also coincides with the period in which Dr Nashed states that the applicant was unfit to pursue any kind of work. The delegate formed the view that Dr Nashed’s letter was provided merely for the benefit of the cancellation process. She noted that if an employee is required to take extended leave due to illness, the employer is entitled to request from the employee medical certificates or other evidence confirming that the employee is entitled to leave. The applicant had not provided any medical certificates or Statutory Declarations or any evidence of communication with her employer during the period she claims to have been absent from work due to illness. The delegate was not satisfied the applicant was prevented from working due to circumstances beyond her control. She also formed the view that the applicant’s commencement of IVF treatment, the month immediately following the grant of her visa, cast doubt on whether she was genuinely committed to being engaged in her employment with Niki’s Hair’s Salon for the required employment period.  The delegate referred to the applicant’s claim in response to the second Notice that she ceased her employment on 3 March 2014 due the business closing. She noted that the applicant had claimed to intend to return to her employment in early 2014 upon her recovery. She formed the view that this claim contradicted her earlier evidence that she was not medically fit to carry out any kind of work during this period.

23. The delegate also noted that the Department had conducted an historical business check with the Australian Securities and Investments Commission (ASIC) on Niki’s Hair Pty Ltd which showed that between 17 May 2012 and 3 June 2014 the applicant’s husband, Mr Nipunj Parekh, DOB 29 September 1976, was a Director, Secretary and Shareholder of Niki’s Hair Salon. The Department also obtained a copy of the commercial lease for the hair salon shop at 9/256 Argyle Street, Moss Vale, for the period during Niki’s Hair Salon’s tenancy, from 12 January 2013 until 11 April 2014. Under the tenant’s information the contact for the hair salon is recorded as ‘Nipu’, along with [a particular mobile phone number], and [a particular email address]. The delegate noted that the Department’s client database records this mobile phone number and email address matches those of the applicant’s husband.

24. The delegate noted that at no stage during the processing of the applicant’s visa application was it disclosed that the applicant’s husband was a part owner of the business. She noted there is nothing in the applicant’s husband’s background that would indicate he has an interest or expertise in hairdressing. Given these findings she formed the view that the applicant’s husband, who was a dependent applicant on the visa application, had more involvement in the application than the Department was aware of. She formed the view her husband secured part ownership of the hair salon solely for the purposes of recruiting his wife in order to obtain permanent residence in Australia. She formed the view that this raised serious concerns about the legitimacy of the employment arrangement. She was of the view this also raised concerns about the applicant’s behaviour and responses to the Department as, given her husband was a part owner in the business, it raised the question as to why the applicant resigned from the business when she did, and why the applicant did not initially state that her employment ceased at the time of the business’ closure. The delegate was not satisfied that the applicant had made a genuine effort to be engaged in the employment for the required employment period. She formed the view that it was likely the applicant had engaged in a fraudulent recruitment arrangement with her husband, the dependent visa holder, to achieve an immigration advantage via the RSMS visa scheme. She was therefore satisfied that a ground for cancellation under s.137Q(2) exists.

25. Having considered the factors relevant to the assessment of whether to cancel the visa, the delegate took into account that the applicant and her husband have settled and reside in regional NSW. However she noted that when making a citizenship application on 24 June 2015 the applicant provided a residential address in Parramatta and stated that she had lived at that address since May 2015. She formed the view that this information appeared to be in conflict with the applicant’s claims to have continued to reside in regional Australia.

1. The delegate formed the view that there were concerns regarding the genuineness of the applicant’s intentions in her commitment to employment as a hairdresser with Niki’s Hair Salon. She was not satisfied that the applicant had made a genuine effort to be engaged in her employment for the required employment period. She was not satisfied that the circumstances regarding the cessation of her employment were beyond her control. She formed the view that the applicant husband’s part ownership of the hair salon raises serious concerns regarding the genuineness of the employment, particularly as this was not disclosed to the Department at the time of application. She was concerned that the applicant’s husband had bought the business in May 2012, the month the applicant claims to have commenced working at salon and that the business ceased operating within a year of the grant of the visa. While she took into account that the applicant claimed to have resided in regional NSW, she formed the view that information before the Department indicates that she and husband appear to have relocated to a metropolitan area. She was not satisfied that the applicant had complied with the relevant conditions of the RSMS visa scheme.

2. The delegate acknowledged that the applicant and her husband are leaseholders of a property in Wagga Wagga and that her husband works as a manager at a Pizza Hut restaurant. She accepted that the applicant and her husband would have some ties to Australia having lived here for nine years. She noted that the applicant’s husband was a Director, Secretary and Shareholder of Niki’s Hair Salon during the process of the application, that he was the primary contact with the real estate agent, and that the applicant had not disclosed his position in the business during the processing of the visa application. She formed the view these factors cast doubt on the genuineness of her employment. She noted that the applicant had provided conflicting information throughout the cancellation process which made it difficult for her to establish the facts and complete a comprehensive assessment regarding the period of employment. She considered this behaviour was a deliberate attempt to avoid a cancellation decision. She concluded that the applicant had not made a genuine effort to maintain her employment and her inability to provide a consistent account of her employment history is a further indication of her non-compliance. She did not consider the applicant’s termination of her employment was beyond her control, and she had serious doubts as to whether she was ever a genuine employee of the business.

3. The delegate noted the applicant had provided contradictory information and supporting evidence which raised significant doubt on the genuineness of her claims regarding her employment at the salon. She considered her behaviour in her interactions with the Department indicated a lack of respect for the Department and the laws it upholds. She noted that the applicant’s husband would be subject to cancellation under s.137T as he is a member of the family unit and a dependent. However she considered his position as a Director, Secretary and Shareholder in the business as an indication of his knowingly participating in the applicant’s non-compliance. She noted that if a decision is made to cancel the visa the applicant would become an unlawful noncitizen and may be detained and removed under the Act if she does not voluntarily depart. She considered Australia’s international obligations and found there was no information before her to indicate the cancellation of the applicant’s visa would impact on those obligations. She noted the applicant is a citizen of India and that she and her husband had lived there most of their lives and would still have cultural, linguistic and familial ties in India. She noted there are no children under 18 who would be impacted by a visa cancellation. She noted there was no information before her to indicate the visa cancellation would lead to removal in breach of Australia’s non-refoulement obligations. In conclusion the delegate was not satisfied that the applicant made a genuine effort to be engaged in her employment with Nikki’s hair salon for the required period. Taking into account all of the evidence she concluded that the grounds for cancelling the visa outweigh the reasons for not cancelling the visa.

4. Prior to the hearing the applicant provided to the Tribunal further information including the following:

   a.The applicant’s payslips issued by Niki’s Hair Salon for December 2013 to March 2014, and various payslips for 2 other employees

   b.The applicant’s bank statements showing wages paid from January 2014 to February 2014

   c.The applicant PAYG payment summaries issued by Niki’s Hair Salon Pty Ltd for the 2013 financial year and the period 1 July 2013 to 31 December 2013

   d.A reference from a former customer confirming the applicant’s employment at the salon

   e.A credit card migration request signed August 2014 at the Liverpool branch of the CBA recording the applicant’s address as [a particular address in] Bundanoon, NSW.

5. The representative also provided a written submission asserting that the applicant made a genuine attempt to maintain her employment. The representative discusses the purpose of s.137Q, to safeguard against the potential abuse of the RSMS visa scheme and to discourage people who do not have a genuine intention of settling in regional or rural Australia. The representative also discusses the relevant case law, including the definition of “genuine effort” however the representative argues that the case law can be distinguished from the applicant’s circumstances as the cases concern visa holders who simply stopped working in their sponsored employment during the two-year period. The representative asserts that in this case the applicant was working for Niki’s hair salon and stopped working after the business had closed down. The representative asserts the applicant had every intention to maintain her employment at Niki’s Hair Salon but due to factors beyond her control, she was unable.

6. The representative discusses the Department’s guidelines for s.137Q(2) indicating that the applicant must demonstrate that they made a genuine effort to remain employed for the 2 year period in the regional area in that employment. The representative notes that the guidelines clearly state that a visa holder may be able to satisfy the delegate that they made a genuine effort to remain employed in situations where the position did not remain viable due to the business closing down. The representative asserts that the applicant first started working for the business on a voluntary basis in January 2012 for a couple of days a week while she was studying for her diploma. In May 2012 she changed a part-time paid employment. She lived in Parramatta and commuted to work. After the visa was granted in May 2013 she and her husband relocated to [a particular address in] Bundanoon. She has provided photocopies of the business diary showing appointments that she had on each day that she was rostered to work. The diary entries include the names and phone numbers of clients.

7. It is asserted that the applicant has been very honest and forthcoming in telling the Department that her employment ceased prior to the 2 year period ending. Regarding the point of contention about the date her employment ceased, and the delegate’s concern about the inconsistencies regarding that date, it is asserted that the salon temporary closed down over the Christmas and New Year period however when it was set to reopen the second week of January the applicant was not able to return to work because she miscarried on 6 January 2014 (the medical evidence from Westmead Hospital records that in fact she miscarried on 13 January 2014). It is asserted she returned to work the following week but found it difficult to cope and concentrate and towards the end of January her husband then made the decision to close the business sometime in March. The representative acknowledges that the response provided on 24 April 2017 first claims that the applicant ceased her employment or about 24 December 2013. It is asserted that the response then details her intention to return to work after the Christmas closure period and this demonstrates that she had not ceased employment on 24 December 2013. The applicant conceived naturally in December 2013 and not from the IVF treatment in June which was unsuccessful. It is asserted that the then migration agent made an error by suggesting the applicant had ceased her employment in December 2013. The representative refers to bank statements and payslips demonstrating that the applicant remained in paid employment until March 2014 when the business ceased operations. It is asserted that had this information been conveyed to the decision maker the visa would not have been cancelled. Once the business closed the applicant was not able to continue her employment for the 2 years as required by the law. It is not possible to assess if a genuine effort has been made when the possibility of demonstrating this by remaining in employment was taken away from the applicant.

8. There is some discussion about the applicant’s IVF treatments. It is asserted that the fact that the applicant continued to work despite the treatments demonstrates her resolve to meet her obligation to remain employed at the salon. There is discussion about the letter from Dr Nashed which, it is asserted, only states his opinion that due to her medical condition she was unfit to work during the period stated. It does not state that she did not work or that she was incapable of working. The representative is critical of the delegate’s discussion of the applicant’s IVF treatments.

9. With respect to the issue of the applicant’s husband being the owner of the business by the time the applicants were granted their visas, the representative acknowledges that the applicant’s husband involvement in the salon should have been disclosed to the Department. However this information would not, of itself, have had any impact on the grant of the visas. There is nothing within the Regulations that prohibits an individual owning or having an ownership interest in sponsoring business. It is asserted that the couple were well aware of the requirement of 2 years’ work for the nominated employer as it was stipulated on the application form as well is on the Department’s website. The applicant’s husband bought into the business to make it a family business. It was something that the applicant had dreamed of. It was a good avenue to secure their RSMS application by being in control of the business. The plan was to run a successful business however by late 2013 the business became quiet and it was difficult to meet all of the expenses of wages and rent. By February 2014 the applicant’s husband decided he wanted to close the business for it was losing money. By custom the applicant’s husband made all of the decisions regarding finances. He looked after the hiring of staff and all financial matters. He had complete control of the business’ accounts and was responsible for paying all expenses. The applicant had no control over her husband’s decision to close the business. As a consequence, due to factors beyond her control, she was unable to meet the requirement to work for the 2 year period.

10. As the applicant’s husband was a Director of the business she did not have to provide medical certificates when she was undertaking IVF treatment. Sangita Devi was the former owner of the salon and continued to provide friendly assistance in the management of the business. The applicant’s husband approached her in 2017 to write a backdated termination letter on the advice of his migration agent. The agent had told the applicant’s husband that this document was needed to demonstrate that the applicant had been given proper notice according to Fair Work Australia provisions. The applicant’s husband acknowledged his lack of judgement in asking Miss Devi to sign the letter for it contains an inaccurate statement regarding the ownership of the business in early 2014 (by that stage she no longer in the business).

11. At the hearing the Tribunal discussed with the applicant the concerns raised by the evidence before it. It explained the provisions of s.137Q, providing grounds for cancellation in certain circumstances. It explained that the Tribunal does not have jurisdiction in relation to the second named applicant’s visa cancellation as this is consequential. It also advised that there is a s.375A certificate on the Department’s file. (After the hearing the Tribunal sent to the representative a copy of the certificate seeking any comments as to the validity of the certificate). The Tribunal also explained that it may be the case that it might write to the applicant after the hearing, under s.359A, because there is information on the Department’s file regarding certain allegations. It explained to the applicant that it would be discussing those allegations with her during the hearing. The applicant’s representative expressed concern that this issue was being raised with the applicant at the hearing. The Tribunal explained that it has a duty to give the applicant an opportunity to comment on any adverse information as, while it had not made its findings, it might be the case that adverse information contained in an allegation may have some bearing on the Tribunal’s decision. It explained that, because it appeared to the Tribunal that the applicant was not aware of the allegation, that it would not provide the applicant with an opportunity to comment on the information under s.359AA because it was of the view that would not be fair. The following is a summary of evidence provided at the hearing. It is not a transcript.

12. The Tribunal asked the applicant about her migration history. She indicated that she first came to Australia in February 2008 as the holder of the student visa. She was going to study for a Bachelor of Health and Science but before she started she changed her course to Hairdressing. The tribunal asked if she had worked as a hairdresser. She indicated that she had worked voluntarily as a hairdresser for about 8 or 9 months. Her husband was working in hospitality and housekeeping. She completed a hair salon management qualifications and an Advanced Diploma of Management in May 2012. Before she finished her study she found a job in hairdressing. Her husband’s friend found the job in the newspaper. She was interviewed by the salon owner, Miss Sangita Devi in about December 2011. She worked voluntarily and then became a paid employee in May 2012. She and her husband met with Miss Devi in January 2012 to discuss joining the business. She offered for the applicant’s husband to become a business partner. They thought it would be a good opportunity for her husband to belong to a business. Her husband decided to join the business and became a Director on 17 May 2012. The applicant thought that Miss Devi had remained involved in the business as her husband’s business partner.

13. Regarding her employment at Niki’s Hair Salon the applicant indicated that she started working for the business in paid employment in May 2012, working 10 hours a week. She did this until August 2012 when she worked 3 days a week until her permanent visa was granted in May 2013. She then commenced working full time. By then Gita was her supervisor because. Miss Devi had employment elsewhere. There was another hairdresser, Kim Mouri, working part-time at the salon.

14. The applicant indicated that when she started working voluntarily at the salon she stayed temporarily in Bundanoon but when she was granted permanent residence she moved to Bundanoon. The Tribunal asked if her license had the Bundanoon address. She indicated that she forgot to change her driver’s licence and the address [in] Parramatta was on her licence until she changed it in August 2015. The Tribunal asked why it took so long to change the address of her driver’s licence and she indicated it was because she was not driving.

15. The Tribunal asked the applicant about her husband’s involvement in the business and whether she had informed the Department during the visa application process of that involvement. She indicated that the visa application was done by a migration agent and that she did not know that they needed to inform the Department that her husband was the owner of the business.

16. The Tribunal asked about the letter provided to the Department from Miss Devi regarding the closure of the business, said to be from the director and owner of the business. It noted, according to ASIC records, that as at the letter’s date, 3 February 2014, Miss Devi was not the owner or the director of the business. It noted that by that time her husband was the sole director and owner of the business. The applicant indicated that the letter had been created by her then migration agent (in 2017) who had advised her that she needed supporting documentation regarding the cessation of her employment. She indicated that while her husband was an owner he thought Miss Devi was still part of the business.

17. The Tribunal asked the applicant questions regarding her residence during the period. It noted that her medical records all indicate that she was residing in Parramatta during the period she was receiving medical treatment for IVF. It explained that this may cast out on her claim that she had been residing in Bundanoon while working at the hair salon. It also noted that her driver’s licence recorded the Parramatta redress. The applicant indicated that when she was undergoing the IVF treatment she continued to consult a GP who knows her well. the GP referred her to Liverpool and Westmead for treatment. She indicated that when she lived in Bundanoon, she just shared a room and opened a PO box near work and continued to use her Parramatta address for security purposes.

18. The Tribunal noted that the bank statements provided indicate that nearly all of the transactions occurred in Parramatta, Westmead, Harris Park, and Liverpool, and only occasionally, about once a month, in the Moss Vale area. The Tribunal indicated that this might raise doubts about her claim that she resided in regional NSW. The applicant indicated that because she is a vegetarian her husband, who worked in the city, would do the shopping at Harris Park or Liverpool.

19. The Tribunal raised the issue regarding the evidence about the reasons for the applicant ceasing employment. The applicant indicated that from 24 December until 6 January the salon had closed for the Christmas period. She found out she was pregnant at the end of December but she started to bleed on 6 January 2013, the date the salon was to reopen. She miscarried on 13 January 2013. Her husband and Miss Devi discuss the financial downturn in the business. She was not given a letter at the time about the closure because her husband owned the business. However her previous agent told her she needed to get a letter. She apologised for the letter having been signed by Miss Devi when at that stage her husband was the director and owner of the business. The applicant indicated that her husband sold the business to the landlord. She was not involved and does not know the price of the sale. (The Tribunal notes that the ASIC records indicate that the director appointed the day her husband, Nipunj Parekh ceased to be the director, was Mukundbhai Umeshbhai Parekh who resides at the same recorded address in Parramatta as the applicant’s husband. There is no evidence before the Tribunal that Mukundbhai Umeshbhai Parekh was or is the landlord of the business’ premises).

20. The Tribunal asked the applicant why she had not informed the Department that her husband was involved in the sponsoring business. It raised this in the context of its concern that the letter advising of the employment termination was signed by Miss Devi who was not the director or owner of the business in the relevant period. The applicant indicated she did not have any idea that she needed to tell the Department and she relied on information and advice from her former migration agent.

1. The Tribunal referred to Doctor Nashed’s letter stating she was unfit for employment during the period that she was undergoing IVF treatment. The Tribunal noted that she is now claiming that she that worked during those periods. The applicant indicated that she got the doctor’s letter in 2017 because the Department said she needed to submit more documentation and she had no contemporaneous medical certificates. After her former migration agent advised her to get the letter she went to Dr Nashed because he knew what she was doing at the time. She described the process she went through trying to conceive. She indicated that she had fallen pregnant naturally in December 2013 but miscarried and suffered some depression and could not go back to work. She indicated however that after 20 January 2014 she did return to work on a full-time basis but only on light duties.

2. The Tribunal discussed with the applicant the reference from one of her customers, Damien Murray. It noted that it had not seen any reference to Mr Murray in the salon cards or the business diaries provided. She claimed that he attended the salon every 3 weeks at about 3PM so he did not need to make an appointment.

3. The Tribunal then took evidence regarding any consideration of discretion that it might undertake in the event that it finds there is a ground for cancellation. The applicant indicated that she came to Australia to study and wanted to stay here. She wanted to be a hairdresser because hairdressing was a big industry and it allowed her to apply for permanent residence. She has spent a lot of money buying house in Australia. She has significant financial debts including a mortgage of $560,000 and a car loan of $17,000. She has no idea what the house is now worth. The Tribunal asked why she had purchased a property in Minto if it was the case that she intended to reside in regional Australia. She indicated that the house is close to the temple so it is a good investment for her retirement. She claimed that when she applied for Australian citizenship she had been living in Bundanoon but she had gone back to Sydney in 2015 to live with her brother. She and her husband will be in significant financial hardship if the visa is cancelled.

4. Regarding the circumstances leading to any ground for cancellation, the applicant admitted that she knew she had to work in the employment for at least 2 years but did not know she had to tell the Department that she had ceased employment. She indicated that she was concerned at the time and told her husband it might affect the visas. Regarding any concerns about the applicant’s past and present conduct towards the Department, the applicant indicated that she had relied on her then migration agent. She indicated that she did not know that Miss Devi was no longer a director of the business. The applicant indicated that her husband closed the business because it was in very bad financial situation and he could not afford to pay the rent and wages. She tried to find other employment in hair salons in the regional area but was unsuccessful. She secured paid employment at ANZ Stadium.

5. In relation to her husband circumstances, she indicated that he currently has a full-time job. They rely on his income to pay their significant debts. If the visa is cancelled they would find it really hard to survive as they have no property in their home country. They last visited India in 2017 when the applicant went there for IVF treatment and to visit relatives. However she believes it would be very hard for her to secure employment because she is 40 years old. While she and her husband have no children her brother-in-law has 2 daughters to whom she is attached.

6. The Tribunal agreed to give the applicant more time to provide further documentation. It agreed to wait until close of business 11 April 2018 to provide any further evidence she wished for the Tribunal to take into account. The Tribunal also agreed to forward a copy of the s.375A notice to the representative for submissions on its validity.

7. Two weeks after the hearing the representative wrote to the Principal Registry of the Tribunal complaining about the Tribunal’s behaviour during the hearing. The representative took issue with comments made during the hearing and questions that the Tribunal had asked. This related to why the applicant had not informed the Department that her husband was involved in the business and that this was not disclosed during the visa application process. The representative stated that there was no legal requirement to inform the Department regarding her husband’s business interests. He asserted that there were no change of circumstances between the time her visa application was lodged (6 June 2012) and the date of grant (15 May 2013). The applicant was under no obligation to inform the Department regarding the family’s ownership interests in an Australian registered company. The representative also had concerns that the Tribunal had stated “it seems like you didn’t admit to the Department or acknowledge to the Department that your husband was involved in the business only until after the delegate raised it as a concern”. The representative states that there was no legal requirement for the applicant to do so. The representative also took issue with the Tribunal asking the applicant if she had informed the Department that the business has closed down and that she would have trouble meeting the requirement to work for 2 years. The applicant acknowledged to the Tribunal that she did not inform the Department. The representative took issue with the Tribunal asking she why she did not inform the Department and asking if she knew that she was required to work for at least 2 years and whether she was concerned that she was not meeting that requirement. The representative repeats that there was no legal requirement for the applicant to contact the Department to notify them of any change of circumstances after the visa was granted. The representative took issue with the Tribunal indicating it might be concerned that she did not tell the Department given she knew it was a requirement to work for 2 years. The representative opined that these questions and comments by the Tribunal created a feeling of apprehended bias. He opined that the Tribunal behaved unconscionably and that it demonstrated that the Tribunal had already formed a particular view. He stated this despite acknowledging that the Tribunal had stated several times that had not made its findings or decision.

8. The Tribunal asked questions at the hearing about issues raised in the material before it. It had not formed a view before or during the hearing. If that was the case it would have sent a s.359A letter regarding the allegation received by the Department immediately after the hearing had finished. It did not send a s.359A letter immediately after the hearing because it had not made up its mind on any of the issues and it was waiting to consider the applicant’s further information and comments due on 11 April 2018 on the validity of the s.375A certificate before it considered all of the material before it.

9. The representative also sent further information after the hearing including the following:

   a.the applicant notices of assessment for the 2013, 2014, 2015 and 2016 financial year and her PAYG payment summary for the 2012 and 2013 financial year is an July to December 2013

   b.Niki’s Hair Salon tax return for the 2013 and 2014 financial year

   c.Niki’s Hair Salon BAS for periods in 2012 and 2013, profit and loss statement for 2013, its GST registration details, outstanding superannuation documents and bank statements.

   d.Documents relating to personal, land and home loans taken out by the applicants.

10. The representative provided a written submission regarding the operation of Niki’s Hair Salon and the applicant’s other employment. The representative draws attention to the 2014 tax return for Niki’s Hair Salon which shows that the income for the business was $39,877 while its expenses were $49,541. In the 2013 financial year the income was $65,879 and the expenses were $64,645. This demonstrates that the business was suffering financially.

11. The representative makes further submissions in relation to the applicant’s nondisclosure of her husband’s interests in the business. It is asserted that she did not have full knowledge of what her husband’s business interests were or in relation to what was told to the Department beyond her original visa application, although she may have discussed the decision to close the business because it was not performing well financially. Self sponsorship through ownership of the company has long been an accepted practice by the Department. The Department’s guidelines regarding this issue were clear at the time and there was no issue in relation to this practice. The only issue associated with sponsoring family is that it may require closer examination of whether there is a genuine need for this position to be filled. The representative acknowledged in hindsight that the information should have been brought to the Department’s attention during the period when the business was applying for sponsorship approval. The representative indicates that this was for the then migration agent to do, rather than the applicant who knew nothing about the issue. The applicant was not a party to the nomination application and it is asserted that any question regarding her honesty in her dealings with the Department about the nomination approval demonstrate a degree of bias in the decision-making process.

12. The representative then discussed the factors relevant to the exercise of its discretion.

    Whether the ground of cancellation exists - employment not commenced

13. Under s.137Q(1) the Minister may cancel the visa if satisfied that the visa holder has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations and the person does not satisfy the Minister that they have made a genuine effort to commence that employment within that period. The relevant periods are specified in r.2.50AA.

14. The applicant was granted the visa on 15 May 2013, having been the subject of an employer nomination made by Niki’s Hair Salon Pty Ltd. She was therefore required to commence the employment referred to in the relevant employer nomination within the period prescribed in the regulations, that is, 6 months from the date of grant a visa.

15. On the basis of various documentation including bank statements showing wages paid, company tax returns, copies of diaries and salon records, her own PAYG payment summaries and Notices of Assessment, and Mr Murray’s reference the Tribunal is satisfied that the applicant was employed at the salon. On the basis of the business’ bank statement for the period 1 July 2013 to 30 September 2013 the Tribunal is satisfied the applicant was employed at the business at least since 17 July 2013, as she was paid wages by the business on that date. The bank records indicate that she continued to receive payments from the business from that date until March 2014. On the basis of these findings the Tribunal is satisfied that the visa holder commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations. Accordingly there is no ground for cancellation under section 137Q(1).

    Whether the ground of cancellation exists - employment terminated within 2 years

16. Under s.137Q(2) the Minister may cancel the visa if satisfied that the visa holder commenced the employment referred to in the relevant employer nomination (whether or not it was commenced within the period prescribed by r.2.50AA); and the employment terminated within 2 years of the person commencing that employment; and the person does not satisfy the Minister that they made a genuine effort to be engaged in that employment for the required 2 year period.

17. While there has been an issue of contention in relation to when the applicant ceased the employment, there is no dispute that the applicant ceased employment before the required 2 year period had lapsed. The delegate understandably raised concerns about the reliability of the evidence as, in the first instance, the applicant’s migration agent indicated that she ceased employment in December 2013 due to her medical condition, and then subsequently claimed she ceased employment in March 2014 because she was informed that the business would be closed. The bank records indicate that the applicant continued to be paid after the Christmas period in January 2014 despite her not providing medical evidence verifying that she had miscarried and would not be returning to work for some time. This is understandable given that her husband was the director and owner of the business.

18. While acknowledging that the applicant’s husband’s involvement in the salon should have been disclosed to the Department, the representative has taken issue with the Tribunal’s questions about why the applicant did not inform the Department about this involvement. These questions were asked because these issues were raised by the delegate in the decision record provided to the Tribunal by the applicant. The Tribunal has a statutory duty to give the applicant an opportunity to give evidence and make arguments about why the delegate’s decision is wrong. It is often the case the Tribunal asks questions about possible adverse information and then may form the view that the information is not adverse, or that it is not relevant. In this case the Tribunal was asking questions in the circumstances where the applicant had provided to the Department a letter dated 3 February 2014 said to be from Miss Sangita Devi, the director and owner of the business, when this was not the case. The ASIC records confirm that Miss Sangita Devi ceased to be a director on 17 May 2012, when the applicant’s husband became the director along with Bhaveshkumar Patel (who ceased to be a director on 17 December 2012). In February 2014 the applicant’s husband was the director and owner of the business. The Tribunal has taken into account the applicant’s assertions that by providing this letter she was relying on the migration agent’s advice. Also, as raised by the representative, the Tribunal notes that the law does not prevent self sponsorship. While initially concerned that neither the applicant nor her husband disclosed to the Department during the nomination process and the visa application process that it was in fact the applicant’s husband who was the director and owner of the business, the Tribunal notes there is nothing before it to indicate that she had a legal obligation to disclose this. However it has formed the view, based on the letter about the business closure from Miss Devi, that the applicant was avoiding disclosing to the Department that in fact it was her husband who was the director and owner of the business at that time.

19. The applicant has claimed the business closed down in March 2014 and sought to rely on an email exchange between Miss Devi and the real estate agent (even though by March 2014 Miss Devi was not the owner or Director). There is information on the Department’s file from the real estate agent which confirms that the lease was terminated and the tenants vacated in April 2014. On the basis of this information the Tribunal accepts that the business closed down around the end of March, beginning of April 2014.  On the basis of the ASIC records, the Tribunal accepts that the applicant’s husband disposed of the business as he ceased to be a Director on 3 June 2014. The ASIC records confirm that Mukundbhai Umeshbhai Parekh, who uses the same Parramatta address as the applicant’s husband, became the director and continues to be the Director of Niki’s Hair Salon Pty Ltd.

20. Before the primary decision was made the applicant indicated to the delegate that she was not aware that the owner intended to close the business. The Tribunal is not satisfied that the applicant would not have been aware that her husband was planning.  It does not accept that she would not have been aware that the business was not doing well financially, given she claims to have been working in the business around the time he decided to close it.  However this does not lead the Tribunal to find that she was involved in the decision to close the business. It has considered the submissions of the representative that the applicant had no control over her husband’s decision to close the business. The Tribunal notes the business was owned and run by a separate entity, Niki’s Hair Salon Pty Ltd.  There is no evidence before the Tribunal to indicate the applicant had any formal involvement or control over that company. Having considered the financial information the Tribunal accepts that the business’ sales were not significant and that it was facing some hardship.  While the Tribunal is not satisfied the applicant had any control over the decision to close the business, it does not accept that the applicant was not aware that her husband was considering closing the business before she ceased her employment.

21. The Tribunal accepts that the business was run by a separate entity, Niki’s Hair Salon Pty Ltd, and the applicant did not have any control over the company’s decision to cease operating the business. In these circumstances the Tribunal accepts that the applicant ceased to be engaged in the employment because it was no longer possible as the business had closed down.

22. Section 137Q(2) provides the ground for cancellation where the applicant does not satisfy the Minister that she has made a genuine effort to be engaged in that employment for the required employment period. The Tribunal is of the view that the reference to “that employment” is the employment referred to in the relevant employer nomination, not any other employment as a hairdresser. So the Tribunal must consider whether it is satisfied that the applicant made a genuine effort to be engaged in employment at Niki’s Hair Salon.

23. The Tribunal accepts that the applicant’s employment was interrupted in January 2014 because she had miscarried. It accepts that she suffered depression after the miscarriage, and that her IVF treatment may have impacted on her capacity to engage with the employment. It accepts that this does not mean she was not making a genuine effort to be engaged in that employment. It is difficult ascertain how often she attended work during the period January to March 2014 because she continued to be paid and the payslips for the relevant period do not indicate that she was on sick leave. There is also some concern as to whether she actually resided in regional NSW at the time given her medical records and her driver’s license indicate that she was in fact using an address in Parramatta. When this was raised with her she indicated she just shared a room at Bundanoon and used to PO box nearby and gave her Parramatta address for security reasons but the Tribunal is not persuaded that this explains her use of the Parramatta address. However given she was paid by the business and has evidence that she had customers the Tribunal is satisfied she was engaged in the employment up until the business closed.

24. There is no dispute that the applicant’s employment ceased when the business closed. The Tribunal is not satisfied the applicant had any control over the decision by Niki’s Hair Salon to close the business. It is obvious from the financial documentation that it was not financially viable to continue with the business. It accepts that the applicant’s husband, the director and owner, decided to close the business. The Tribunal accepts that it cannot find that the applicant was not making a genuine effort to be engaged in that employment if it was impossible for her to do so because the business had closed down. In these circumstances the Tribunal cannot make a finding that the applicant has not satisfied it that she had made a genuine effort to be engaged in that employment for the required employment period. Accordingly the Tribunal is not satisfied that the ground for cancellation arises under section 13Q (2).

1. For these reasons, the Tribunal is not satisfied that the relevant ground for cancellation in s.137Q exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 857 (Regional Sponsored Migration Scheme) visa.

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

   Denise Connolly

   
   

   Member