Bhatt (Migration)

[2023] AATA 1532

Bhatt (Migration) [2023] AATA 1532 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shaileshkumar Natvarlal Bhatt
Mrs Nimishaben Shaileshkumar Bhatt
Miss Dharaben Shaileshkumar Bhatt
Miss Nandini Shaileshkumar Bhatt
Master Shiv Shaileshkumar Bhatt

REPRESENTATIVE:  Ms Kathryn Rose Viegas (MARN: 0532285)

CASE NUMBER:  2013278

HOME AFFAIRS REFERENCE(S):          BCC2018/3407078

MEMBER:Mary Sheargold

DATE:25 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:

·Public Interest Criterion 4020(1) for the purposes of cl 887.223 of Schedule 2 to the Regulations

Statement made on 25 May 2023 at 4:43pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – false or misleading work experience information – applicant established employing business – business moved interstate – poor bookkeeping – decision under review remitted         

LEGISLATION

Migration Act 1958, ss 5(1), 65
Migration Regulations 1994, Schedule 2, cls 887.213, 887.223; Schedule 4, Public Interest Criterion 4020

CASES

Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 August 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 8 September 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 887.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate concluded the applicants had provided information that was false or misleading in a material particular to the Department in relation to Mr Bhatt’s work experience.

3. The first named applicant appeared before the Tribunal by MS Teams video link from Griffith, New South Wales, on 19 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Martin Sammut, who was engaged by the applicants to assess the accounts of the second named applicant’s business.  The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 887.223 for the grant of the visa. Broadly speaking, this requires that:

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

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

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

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

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

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

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

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

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

11. In this case, the delegate found that Mr Bhatt had provided the Department with information that was false or misleading in a material particular because the documents he provided to the Department to reflect his regional work experience while holding his Subclass 489 visa did not marry cleanly with evidence provided regarding the business he worked for.  The Tribunal has had the benefit of receiving oral evidence from Mr Bhatt and Mr Sammut, as well as written and oral submissions from his representative, that have allowed the Tribunal to fully understand the context behind the major misunderstanding that has occurred at the time of the delegate’s decision.

12. It is useful to paraphrase Mr Bhatt’s oral evidence about his time living and working in Australia to give appropriate context to the events that have contributed to the confusion surrounding this case.  Put simply, Mr Bhatt brought his family to Griffith, NSW, where his brother was living, and set about making a plan to establish a future in Australia.  He was connected to a man in Victoria by the name of Hardeep Jani, who was known to his family through caste and village connections.  Mr Jani resided in the Bendigo area, quite some distance from Griffith, NSW.

13. Mr Bhatt’s evidence, that the Tribunal accepts, is that Mr Jani offered to go into partnership with Mr Bhatt to establish a retail grocery business in the Goldfields region of Victoria.  Mr Bhatt stated that he followed Mr Jani’s lead on the appropriate way to structure the business in terms of directorships and shareholdings, and that Mr Jani had recommended the businesses be registered to their wives, and Mr Bhatt would be an employee.  However, this information was not put before the delegate.  The applicants did not provide the Tribunal with evidence regarding the business where Mr Bhatt was employed until the Tribunal requested a current and historical company extract from the Australian Securities and Investments Commission to be provided at the conclusion of the hearing.

14. Helpfully, the evidence given by Mr Bhatt regarding the establishment of the company aligns with the historical company information provided.  Mr Bhatt’s evidence was that after 7 to 8 months operating the business in Victoria, Mr Jani decided he would withdraw from their partnership, and given the difficulties he had faced living in Victoria with strong competition in his area of business, he elected to relocate the business to Griffith.  Again, the information in the historical company extract supports the evidence given by Mr Bhatt.

15. Mr Sammut was retained, then, to provide an opinion for the Tribunal to consider regarding the veracity of the information provided by the applicant to the Department.  While the Tribunal has no power to obtain expert evidence, and while Mr Sammut does not purport to have provided an expert report, his significant accounting experience in the small business sector enables him to provide a useful perspective on the documents provided. 

16. He provided reports dated 16 August 2022 and 12 May 2023.  In short, poor bookkeeping was identified as the primary cause of inconsistent information being provided, rather than any overt attempt to defraud or mislead the Department.  Mr Sammut reiterated this opinion in his oral evidence provided at the hearing.  Mr Sammut was engaged to review and analyse the amounts on payslips not matching those on bank statements, issues of multiple payslips for the same period, issues with superannuation payments, incorrect addresses used on payslips, and annual leave balances. 

17. In his report dated 12 May 2023, Mr Sammut has undertaken additional forensic accounting analyses of Mr Bhatt’s taxation documents alongside the financial records for the business owned by his wife.  Mr Sammut states his view is that previous issues regarding incompetent bookkeeping and administrative oversights have been remedied, and that all of Mr Bhatt’s business dealings are now fully accounted, fully traceable, and compliant with applicable laws.  Mr Bhatt’s evidence is that he has grown and developed substantial business dealings in the Griffith area both on his own and in partnership with family and friends.

18. In the Tribunal’s view, and as discussed with Mr Bhatt during the hearing, it seems that the Bhatt family’s relative inexperience in operating businesses in Australia is the most likely cause for the errors that occurred in the past.  Did the documents provided to the Department therefore contain information that was false or misleading in a material particular? The Tribunal’s view is that it does not. 

19. The material particular is whether Mr Bhatt has the requisite amount of regional work experience to meet the requirement in cl.887.213 of Schedule 2 to the Regulations. The fact that payslips contained errors, wrong addresses, and inconsistent information regarding superannuation payments does not mean that Mr Bhatt did not work as required to meet cl.887.213. It simply demonstrates that the business he was operating himself, albeit in his wife’s name, was in its initial stages, that Mr Bhatt was still coming to terms with the requirements for operating a business in Australia, and that mistakes were made along the way. Clearly, Mr Bhatt worked more than full time hours as he established and grew his businesses, including an interstate relocation.

20. After the delegate’s decision was made, the Department received an anonymous allegation relating to the applicants that it sought to protect with a non-disclosure certificate issued pursuant to s.376 of the Act.  The Tribunal wrote to the applicants on 28 April 2023 inviting them to comment on the validity of that certificate, noting the Tribunal’s preliminary view that the certificate was valid, and invited comments as to whether the Tribunal should exercise its discretion to disclose that material to the applicants. The applicants’ representative responded stating the applicants were unable to comment on the validity of the certificate without an opportunity to review the relevant folios on the Department’s file, and so the Tribunal elected to discuss this with the applicant during the hearing.

21. The allegation is that the applicants had submitted false documents to the Department, and that Mr Bhatt had made money by selling English tests and degree certificates.  The person making the statement, in October 2020, also suggests more information will be forthcoming, but to the Tribunal’s knowledge, no further information has been provided.  The allegation is anonymous, with poor syntax and spelling throughout. 

22. When the Tribunal asked Mr Bhatt what he thought of this allegation he appeared shocked, and surmised he had strong competition for business in Griffith and that perhaps he had upset a competitor.  Without any evidence whatsoever to support the allegations made, the Tribunal is not prepared to rely on those statements.  Ultimately, it finds the certificate to be valid, and has not exercised its discretion to disclose a copy to the applicants; rather, the discussion in the hearing has provided sufficient context for the applicants.

23. The evidence available to the Tribunal at review indicates that rather than false or misleading information having been provided to the Department, the applicant had provided inconsistent information that was produced as a result of a poor understanding of corporations, taxation, and superannuation laws in Australia.  Such inconsistent information was not in a material particular, because, with the benefit of understanding from Mr Sammut the reasons for the production of inconsistent information, that inconsistent information does not belie the veracity of the applicant’s claims to have worked full time for at least 12 months in a specified regional area.  Therefore, the applicant meets PIC 4020(1).

24. On the basis of the above, the applicant satisfies PIC 4020(1) for the purposes of cl 887.223. Given these findings, the appropriate course is to remit the application to the Department for further consideration, including in relation to the secondary applicants.

    DECISION

25. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 887 (Skilled - Regional) visas:

    ·Public Interest Criterion 4020 for the purposes of cl 887.223 of Schedule 2 to the Regulations

    Mary Sheargold
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

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

    (a)the application for the visa; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    justify the granting of the visa.

    (5)In this clause:

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

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

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

    …

    Migration Act 1958

    s 5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly.

    …