Chouhan (Migration)

Chouhan (Migration) [2021] AATA 1240 (1 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Nishant Chouhan
Mrs Manpreet Kaur
Master Mahin Chouhan
CASE NUMBER:  1936043
HOME AFFAIRS REFERENCE(S):          BCC2018/6075158
MEMBER:Antonio Dronjic
DATE:1 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 01 March 2021 at 12:30pm
CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – Motor Mechanic (General) – ground for cancellation – bogus document – false and misleading statement contained in work reference letter – Departmental integrity checks – site visit reports – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 103, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the first named applicant (the applicant) had not complied with s.103 of the Act. The delegate found that the VETASSESS Skilled Migration Assessment Result dated 6 December 2016 was obtained because of the false and misleading statement contained in the work reference letter dated 10 October 2016 issued by the applicant’s former employer, Zoom Auto Services Pty Ltd.
The applicant applied for review of the primary decision to this Tribunal on 20 December 2019. With the review application, the applicant submitted a copy of the primary decision record.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visas were 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.
Background
The background to this matter is as follows:
·The applicant first came to Australia in July 2009 as a holdr of a student visa Subclass 572 that remained valid until 27 July 2011;
·On 18 December 2012, the applicant was granted a Subclass 457 visa until 18 December 2016, based on the sponsorship and nomination by Zoom Auto Services Pty Ltd;
·On 18 March 2013 and 25 October 2013, Department officers conducted site visits at the sponsoring business. As a result, on 11 March 2014, the Department cancelled Zoom Auto Services Pty Ltd’s approval as a standard business sponsor (SBS) and made a decision to bar the business for 36 months from making future applications for approval as a standard business sponsor because it provided false and misleading information to the Department and failed to meet sponsorship obligations. On 10 June 2015, the Tribunal (differently constituted) set aside the decision and substituted it with a decision to bar the sponsoring business for 18 months from 11 March 2014 to 11 September 2015;
·On 31 March 2016, Zoom Auto Services Pty Ltd lodged an Employer Nomination Scheme Nomination application which listed the applicant as the nominee for the occupation of Motor Mechanic (General) (ANZSCO code 321211). On 31 August 2016, the Department refused the nomination application as there was adverse information known to the Department about the sponsor;
·On 26 June 2017, the Department received information that Zoom Auto Services was not operating a business at Camp Road, Broadmeadows VIC but various sub-lessees had been operating from the premises from February 2013 to November 2015 and from June 2016 to December 2016;
·Additionally, Australian Business Register (ABR) records indicate that Zoom Auto Services Pty Ltd (ABN: 31156597296) was registered on 31 March 2012; their trading name was Zoom Auto Service; and their business name was registered as United Motor Works on 25 March 2014 and United Motor Works Broadmeadows on 28 March 2014;
·On 6 March 2017, the applicant applied for a Subclass 190 visa and with his application submitted a VETASSESS Skilled Migration Assessment Result with a successful assessment outcome for the occupation of Motor Mechanic (General);
·The applicant was granted a Subclass 190 visa on 23 March 2017;
·On 30 November 2018, the Department referred the applicant’s Skilled Migration Assessment Results of 6 December 2016 to VETASSESS for verification. On 5 December 2018, VETASSESS advised the Department that, with his skills assessment application, the applicant submitted the employment reference letter from Zoom Auto Services Pty Ltd dated 10 October 2016, which stated that he was employed by the business since January 2013;
·Based on the integrity checks conducted by the Department, the delegate took the view that Zoom Auto Services Pty Ltd was not operating a mechanics workshop at their principal places of business at Camp Road, Broadmeadows VIC and Dundas St, Thornbury VIC and that the applicant was not working as a motor mechanic at these business premises. Accordingly, the delegate found that the work reference letter from Zoom Auto Services Pty Ltd dated 10 October 2016 submitted to VETASSESS appeared to contain false and misleading employment information. As such, it was alleged by the Department that the applicant provided a bogus work reference letter from Zoom Auto Services Pty Ltd to VETASSESS to obtain a successful Skilled Migration Assessment Result;
·On 1 August 2019, a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant;
·The applicant responded to the NOICC on 13 August 2019, 22 August 2019 and 30 October 2019;
·The delegate cancelled the applicant’s via on 19 December 2019.
On 24 November 2020, the Tribunal wrote to the Department requesting a copy of the Department’s file.
On 4 December 2020, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 22 December 2020.
On 10 December 2020, the Tribunal wrote to the applicant inviting him to provide the following documents:
·Statement from the applicant’s superannuation account from January 2013 to December 2016 evidencing payment of superannuation contributions by his then employer;
·Statement for the applicant’s bank account (unredacted) from January 2013 to December 2016 evidencing payment of his salary; and
·The applicant’s ATO tax assessment notices from 2012 to 2016/17.
On 11 December 2020, the Tribunal wrote to the Department requesting a copy of the Department’s file.
On 17 December 2020, the applicant’s representative provided her submissions and documentary evidence in support of the review application. The list of documents submitted is attached to this decision and marked as Attachment A.
On 21 December 2020, the Tribunal wrote to the Department requesting copies of statutory declarations provided by the Camp Road, Broadmeadows property manager, real estate agent and persons who, according to the Department, were subleasing the premises from Mr Japanjot Singh Ganda, the director of Zoom Auto Services Pty Ltd. On the same day, the Tribunal cancelled the scheduled hearing.
On 22 December 2020, the Tribunal wrote to the Department requesting the following:
·Site visit reports from 18 March 2013 and 25 October 2013 in relation to Zoom Auto Services Pty Ltd;
·Information received by the Department on 26 June 2017 that Zoom Auto Services was not operating a business at Camp Road, Broadmeadows; and
·Copies of subleases allegedly signed between Mr Ganda and various sub-lessees.
On 5 January 2021, the Tribunal wrote to the applicant advising him that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend a hearing on 27 January 2021.
On 5 January 2021, the Department provided electronic copies of the requested site visit reports and advised the Tribunal that they were unable to locate copies of subleases allegedly signed between Mr Ganda and various sub-lessees.
The applicants appeared before the Tribunal on 27 January 2021 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
The applicant is 33 years of age and a national of India. He is married and has a nine year old son who attends primary school in Australia. The applicant stated that his son understands Punjabi and Hindi but is not able to speak or write in those languages. At home, he and his wife communicate with their son in the English language.
In India, the applicant completed the equivalent of year 12. He was enrolled but never completed a Bachelor of Arts degree. His parents and brother live in Jammu Kashmir in India and he does not have any relatives who are living in Australia. His father is a retired bank officer, his mother is a retired school principal and his brother is a lawyer.
He gave evidence that the last time he travelled to his hometown in India, together with his wife and son, was in January 2018. When sked if he is afraid to travel back to India, the applicant stated that his hometown is Kathua in Jammu Kashmir which is a very dangerous area because of the ongoing terrorist activity and conflict. Since arriving in Australia in 2009, he has travelled back to India on three occasions. He stated that he never considered applying for a protection visa in Australia and is not afraid to travel to India.
He married in November 2011. His wife is from Punjab and her father and two siblings still live there. He first came to Australia as a holder of a Student visa. He completed several courses including a Certificate III and Certificate IV in Automotive Technology.
The applicant is also a qualified chef. He is and has been working as a chef at Two Bob café in Clifton Hill since 2017.
He confirmed in his evidence that, in response to the NOICC he submitted a statutory declaration dated 20 August 2019 and that everything stated in that declaration is true and correct except for:
·The final day of his employment at Zoom Auto Services Pty Ltd was 9 September 2016 rather than December 2016 as stated in the declaration; and
·His period of unpaid leave taken in 2013 was from 20 May 2013 to 7 October 2013 and he assumes that he was offsite at a roadside assistance call on 25 October 2013 when the departmental officers conducted the site visit at Zoom Auto Services Pty Ltd’s business premises.
The applicant further confirmed in his evidence that he submitted a statutory declaration dated 15 December 2020 to this Tribunal and that everything stated in that declaration is true and correct.
He confirmed in his evidence that he was granted a Subclass 457 visa on 18 December 2012 and that, according to the employment agreement of 1 October 2012, his annual salary was $52,500 not including the superannuation contributions. According to his statutory declaration of 15 December 2020, his annual salary was later increased to $54,000. He further stated in the statutory declaration that his salary was paid fortnightly either into his nominated bank account or in cash. When asked by the Tribunal, the applicant gave evidence that in 2013 he was paid in cash on one or two occasions and in 2014 on three or four occasions.
The Tribunal noted that, according to PAYG summaries and ATO assessment notices for the period from January 2013 to September 2016 provided by the applicant to the Tribunal, the applicant was never paid the agreed salary of $52,500.
For example, according to the PAYG summary as of 30 June 2014, the applicant received a gross payment of $24,576 in this financial year, far short of the agreed salary of $52,500 (or increased salary of $54,000). Even if the three months of unpaid leave (July 2013 to October 2013) was deducted from his salary, the amount of $24,576 does not represent the salary for nine months.
The applicant reiterated that he took unpaid leave from 20 May 2013 to 7 October 2013. When questioned, he gave evidence that he neither obtained written approval from his employer for the unpaid leave nor did he or his employer inform the Department that he was taking some four and a half months of unpaid leave.
He further stated that he took some unpaid leave in 2014 and 2015 but that he cannot remember how many days or months. Later, he stated that he took between two to three months of unpaid leave in 2014 and that he cannot recall if he took unpaid leave in 2015. He gave evidence that he neither obtained written approval from his employer for the unpaid leave nor did he or his employer inform the Department of this leave.
The Tribunal noted that the applicant provided a statement from his superannuation account according to which the first contribution payment was made by his employer in June 2015. The applicant stated in his evidence that he did not realise until 2014 that the employer was not making mandatory superannuation contribution payments.
He reiterated that he worked as a motor mechanic at Zoom Auto Services Pty Ltd from January 2013 to September 2016. There was only one mechanical workshop at the business premises located at Camp Road, Broadmeadows. In 2013, this workshop employed seven motor mechanics. In 2013, the applicant’s supervisor was Mr Ezel Suliman. All other motor mechanics that were employed at the workshop were Indian nationals.
The business premises consisted of a United petrol station, car wash, café and workshop. At the relevant time, the applicant believed that Mr Ganda was the owner of all those businesses. His supervisor, Mr Suliman never represented himself as the owner of the mechanical workshop. During the entire period of his employment at the workshop, the applicant believed that he was employed by Zoom Auto Services Pty Ltd as he was receiving wages from this business. He gave evidence that he mainly worked at the workshop. Occasionally he would answer roadside assistance calls as a mobile motor mechanic. The business had two vans used for those purposes.
The Tribunal enquired if the applicant knows who Mr Stevan O’Shana is. He stated that he had never heard of this person. The Tribunal explained that this person allegedly took over the lease of the workshop in June 2016.
The Tribunal noted that in her submissions of 17 December 2020, the applicant’s representative stated that in 2017, the Department received statutory declarations which have not been released to the applicant. The essence of these declarations was that Mr. Singh Ganda had in fact sublet the business during the relevant period.
The Tribunal indicated to the applicant that that there is information before the Tribunal that would be the reason or part of a reason for affirming the decision that is under review. On the applicant’s representative’s request, the Tribunal agreed to provide that information in writing pursuant to s.359A rather than at the hearing.
The Tribunal explained to the applicant that the even if the Tribunal ultimately finds that the s.107 notice issued by the Department on 1 August 2019 is valid and that non-compliance by the applicant was as described in the s.107 notice, the cancellation power is discretionary. The Tribunal explained the requirements set out in r.2.41 of the Migration Regulations 1994 and additional policy considerations, noting that the applicant’s representative addressed both r.2.41 and policy considerations in her submissions of 17 December 2020.
The applicant confirmed that he read and understood the submissions provided by his representative. The Tribunal asked if the applicant wished to bring to the Tribunal’s attention any other matter, not previously raised and addressed in written submissions.
The applicant stated that he did what he was supposed to do, he studied and worked hard in Australia in order to provide a better life for his family. He stated that his son is a good kid who is happy in Australia where he attends school. He added that his uncle was shot in India.
The Tribunal noted that the proposed witness, Mr Manish Gulati, who acted as both the applicant’s accountant and the accountant retained by Zoom Auto Services Pty Ltd, provided two letters to the Tribunal confirming the applicant’s employment at Zoom Auto Services Pty Ltd. The applicant’s representative submitted that Mr Gulati will be able to explain how he verified cash payments made by the business to the applicant. The representative has undertaken to provide Mr Gulati’s statutory declaration and agreed that it is not necessary for the Tribunal to take evidence from Mr Gulati.
The representative further undertook to provide a statutory declaration from Mr Ganda who was the owner and director of Zoom Auto Services Pty Ltd at the relevant time.
The representative requested and the Tribunal granted the applicant additional time to provide submissions and documentary evidence in support of the review application until 24 February 2021.
On 29 January 2021, the Tribunal wrote to the applicant inviting comments on or response to the following information under s.359A:
On 5 January 2021, the Department provided the following additional documents to the Tribunal:
·A copy e-mail dated 22 June 2017 exchanged between the Department and an office manager. In this e-mail the office manager confirms that the Camp Road property was leased to ZPN Group Pty Ltd (Mr Japanjot Sing being the owner and director of this entity). The office manager stated in her correspondence that she become aware of illegal subleases being offered by ZPN Group. (Redacted copy of this e-mail is attached to this letter).
·A copy of a statutory declaration from Mr Ezil Suliman dated 18 December 2016 in which he, inter alia stated that in February 2013, he was given a lease of United Petrol workshop located at Camp Road Broadmeadows, that Mr Japanjot Sing told him that he was the landlord of the whole site, that the lease was offered under Mr Singh’s company ZPN Group Pty Ltd; that he paid both rent and rental bond in cash directly to Mr Singh, that he operated workshop from February 2013 to November 2015 and that during this period he met other tenants. (Redacted copy of this declaration is attached to this correspondence).
·A copy statutory declaration relating to real estate. In this declaration, the person making the declaration inter alia stated that Mr Singh told her that he was earning rental money from sub-leases he had at the site, that Mr Steven O’Shana fitted the empty workshop and commenced trading in June 2016 and were long term tenants, that Rocco Cuzzilla did the same thing at the café and that both Mr O’Shana and Mr Cuzzilla had a long term sub-lease in place. It is further stated that the owners of the property were unaware that a workshop and café were subleased, and that Mr Singh never requested or received their consent to sublet any part of the Camp Road premises. (Redacted copy of this declaration is attached to this correspondence).
·In his evidence given at the hearing, the applicant stated that he worked as a full-time motor mechanic at Zoom Auto Services Pty ltd from January 2013 to 9 September 2016. When asked if he knows Mr Steven O’Shana he stated that he does not know that person. According to the statutory declaration provided by the real-estate agent (above), Mr Steven O’Shana commenced trading at the workshop in June 2016.
This information, if accepted by the Tribunal, is relevant to the review because it may indicate that the applicant was not employed as a full-time motor mechanic by Zoom Auto Services Pty ltd as stated in the reference letter of 10 October 2016. Consequently, if the Tribunal finds that the work reference letter from Zoom Auto Services contains false and misleading information, the Tribunal may form a reasonable suspicion that the applicant’s skill assessment letter of 6 December 2016 is a bogus document as it was obtained because of the false and misleading statement (within the meaning of s.5(1)(c) of the Act). If the Tribunal rely on this information in making its decision, it may find that the applicant has not complied with section 103 of the Act as described in s.107 notice.

On 15 February 2021, the applicant’s representative provided her submissions and documentary evidence in support of the review application. The list of documents submitted is attached to this decision and marked as Attachment B.
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
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
Did the notice comply with the requirements in s.107?
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.103 of the Act in that:
·Integrity checks conducted by the Department confirmed that Zoom Auto Services Pty Ltd was not operating a mechanics workshop at their principal places of business at Camp Road, Broadmeadows and Dundas St, Thornbury and the applicant was not working as a motor mechanic at these business premises; and
·The applicant was not working at Zoom Auto Services Pty Ltd from December 2012 to December 2016 as claimed in his Skilled Nomination (Subclass 190) visa application.
Essentially, it is particularised in the 107 notice that either:
a)The applicant was not working at all as a motor mechanic at Camp Road, Broadmeadows; or
b)Zoom Auto Services Pty Ltd was not operating a mechanics workshop at their principal places of business at Camp Road, Broadmeadows; or
c)The applicant was not working at Zoom Auto Services Pty Ltd from December 2012 to December 2016 as claimed in his Skilled Nomination (Subclass 190) visa application.
The applicant was not working at all as a motor mechanic at Camp Road, Broadmeadows
There is ample evidence before the Tribunal that the applicant was in fact working as a motor mechanic at Zoom Auto Services Pty Ltd. The applicant provided a copy of his employment agreement, payslips, statement from his superannuation account, written statements from his former flatmate, letters from his GP and accountant, to name a few.
Based on the evidence before it, the Tribunal is not satisfied that the applicant did not work at all as motor mechanic at Camp Road, Broadmeadows for Zoom Auto Services Pty Ltd in the way described in the s.107 notice.
Zoom Auto Services Pty Ltd was not operating a mechanics workshop at their principal places of business at Camp Road, Broadmeadows
The applicant submitted substantial documentary evidence in support of his claim that Zoom Auto Services Pty Ltd in fact operated a mechanics workshop at Camp Road, Broadmeadows. According to the ASIC historical company extracts:
·ZPN Group Pty Ltd was registered on 23 August 2011. Mr Ganda was the sole director and shareholder of this entity; and
·Zoom Auto Services Pty Ltd was registered on 31 March 2012.The principal place of business was Camp Road, Broadmeadows. Again, Mr Ganda was the sole director and shareholder of this company.
It was ZPN Group Pty Ltd that signed the lease agreement with George’s Jet Gas (Aus) Pty Ltd (the landlord) on 3 October 2011, with an initial term of five years. In July 2016, ZPN Group Pty Ltd exercised its option for a further term of five years to be granted under the lease commencing on 1 October 2016. It was then that ZPN Group Pty Ltd offered sub-lease agreements to Mr Steven O’Shana and Mr Rocco Cuzzilla. According to Mr Ganda’s Affidavit from December 2016, subleases were to take effect from November 2016.
Accordingly, the Tribunal finds that the existence of those subleases is irrelevant for the purposes of determining whether the applicant worked at Zoom Auto Services Pty Ltd from 14 January 2013 to September or October 2016. In addition, the Department was unable to provide copies of any subleases entered between Mr Ganda or any of his businesses between February 2013 and November 2015 or from June 2016 to December 2016 as alleged in the s.107 notice.
The Tribunal accepts the applicant’s submissions that at all relevant times, Zoom Auto Services Pty Ltd had an ABN and was registered with ASIC, paid tax to the ATO and complied with its financial obligations. Based on the evidence before it, the Tribunal is not satisfied that Zoom Auto Services Pty Ltd did not operate a mechanics workshop at their principal place of business at Camp Road, Broadmeadows as it was described in the s.107 notice.
The applicant was not working at Zoom Auto Services Pty Ltd from December 2012 to December 2016 as claimed in his Skilled Nomination (Subclass 190) visa application
In his visa application form, the applicant declared that he had not been employed during the 10-year period before the invitation to lodge this application. In the application form he did not declare that he worked at Zoom Auto Services Pty Ltd from December 2012 to December 2016. It appears that the applicant provided an incorrect answer in the visa application form, which may amount to non-compliance with s.101 of the Act and be a separate ground for the visa cancellation.
For the above reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 190 - Skilled - Nominated visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Antonio Dronjic
Member

Attachment A – Document List
On 17 December 2020 the applicant submitted the following documents:
·Resume of Nishant Chouhan
·Letter from Phillip (16/12/2020)
·Letter from Manish Gulati (16/12/2020)
·Social media screenshots, menus and images
·Translated Death Certificate of Rajinder Kaur (date of registration: 18/10/2010)
·Notice of assessment for the year ended 30 June 2014 for Nishant Chouhan
·Cover letter/submission from Samantha Smith (Lawyer, WLW Migration Lawyers) to the Administrative Appeals Tribunal (17/12/2020)
·Excel spreadsheet documenting figures in bank statements, payslip), NOAS, PAYG and superannuation
·Letter from Manish Gulati (24/11/2020)
·(Unsigned) letter from Zoom Auto Services Pty Ltd (5/5/2015)
·Resume of Manpreet Kaur
·Visa Entitlement Verification Online (VEVO) Visa Details Check of Manpreet Kaur (7/12/2020)
·Email from Patricia Tjan (Super Consultant, Commonwealth Bank) to Mr Chouhan (8/12/2020)
·Letter from Stuart Rushbury [undated]
·Pathway 2: Stage 1 Assessment – Australian Qualification Holder for Nishant Chouhan
·Images, and screen shots of maps
·Letter from Vaughan Kelly [undated]
·Letter from Bruce Kearney (Principal, Reservoir West Primary School) [undated]
·National Police Certificate for Manpreet Kaur (30/11/2020)
·National Police Certificate for Chouhan, Nishant (18/11/2020)
·Commonwealth of Australia, Statutory Declaration of Manpreet Kaur (15/12/2020)
·Commonwealth of Australia, Statutory Declaration of Nishant Chouhan (15/12/2020)
·Passport of Nishant Chouhan (date of issue: 24/9/2018)
·Letter from Harkirat Singh (General Secretary, Supreme Sikh Council of Australian Inc) (8/12/2020)
·Visa Entitlement Verification Online (VEVO) Visa Details Check of Mahin Chouhan (7/12/2020)
·ABN Lookup historical details for ABN 58 544 281 837 (record extracted: 30/10/2020)
·Website pap and details for Zoom Mechanics Pty Ltd
·Website details for Zoom Mechanics Pty Ltd
·Website details for ZOOM AUTO Services
·Website details for Zoom Auto Services
·Facebook details for ZOOM AUTO Services
·Letter from Lorraine Camilleri (Human Resources manager, PM Automotive Group) (10/10/2016)
·Letter from Peter Bodman (Charity Director, Kids With Cancer Foundation (Australia))
·Email from Vanessa Senior (Kids With Cancer Foundation) to Nishan (10/11/2016)
·1405700 (Migration) [2015] AATA 2066 (10 July 2015)
·ABN Lookup historical details for ABN 31 156 597 296
·Google maps screenshots, search engine search of ‘zoom auto services broadmeadows’. ZOOM AUTO Services Facebook screenshots, current ABN search of ABN 31 156 597 296, ASIC extract of ‘Zoom Auto Services Pty Ltd’, VYPMaps screenshots for ZOOM AUTO Services, Google Maps screenshots, ANM details for ‘ZPN Group Pty Ltd’, Menulog screenshot of Café getGO, screenshot of singh.com.au/location/broadmeadows_vic/, realestate.com.au and domain.com.au screenshot of 1/80 Camp Road, Broadmeadows Vic 3047, Google Maps screenshots, ABN details for ‘zoom auto services pty ltd’, Google Maps screenshots
·Letter from Japanjot Singh Ganda to the Department of Home Affairs (29/10/2020)
·Notice of assessment for the year ended 30 June 2017 for Nishant Chouhan
·Notice of assessment for the year ended 30 June 2013 for Nishant Chouhan
·Notice of assessment for the year ended 30 June 2015 for Nishant Chouhan
·Notice of assessment for the year ended 30 June 2016 for Nishant Chouhan
·Email correspondence from Japanjot Ganda (8/10/2016), including an attachment; letter from Zoom Auto Services Pty Ltd (5/5/2015)
·ABN Lookup current details for ABN 49 155 690 912
·PAYG payment summary for Nishant Chouhan for the payment summary for year ending:
o   30 June 2013
o   30 June 2014
o   30 June 2015
o   30 June 2016
o   30 June 2015
o   30 June 2016
o   30 June 2017
·Tax screenshots
·Documents from the Department of Home Affairs
·Letter from Simmerdeep Kaur (Academic Tutor, La Trobe University, Bundoora) (4/12/2020)
·Letter from Carlo Bernadri (Scomparin & Bernardi) (3/12/2020)
·Indian police clearance application forms for Nishant Chouhan
·Certificate IV in Commercial Cookery awarded to Nishant Chouhan from Frontier Institute of Technology (29/5/2020)
·Certificate IV in Commercial Cookery awarded to Manpreet Kaur from Frontier Institute of Technology (22/10/2020)
·Medical certificate/report from Dr Awaldeep Singh (8/12/2020)
·Medical certificate/report from Dr Awaldeep Singh (17/11/2020)
·Employment contract of Manpreet Kaur
·Letter from Sarah Mexted (Owner Two bob café) (24/11/2020)
·Job contract of Mr Nishant Chouhan (signed 6/1/2020)
·Letter from Michael Vassiliou (Owner Curry Café) (12/11/2020)
·Class photo of Year 2M 2020 at Reservoir West Primary School
·Mr N Chouhan’s Commonwealth Bank Smart Access account statement for the period:
o   7 May 2015 – 6 August 2015
o   7 August 2015 – 6 November 2015
o   7 November 2015 – 6 February 2016
o   7 February 2016 – 6 May 2016
o   7 May 2016 – 6 August 2016
o   7 August 2016 – 6 November 2016
o   7 November 2016 – 6 February 2017
o   7 February 2017 – 6 May 2017
o   7 May 2012 – 6 August 2012
o   7 August 2012 – 6 November 2012
o   7 November 2012 – 6 February 2013
o   7 February 2013 – 6 May 2013
o   7 May 2013 – 6 August 2013
o   7 August 2013 – 6 November 2013
o   7 November 2013 – 6 February 2014
o   7 February 2014 – 6 May 2014
o   7 May 2014 – 6 August 2014
o   7 August 2014 – 6 November 2014
o   7 November 2014 – 6 February 2015
o   7 February 2015 – 6 May 2015
Attachment B – Document List
On 15 February 2021, the applicant provided the following documents:
·Cover letter/submission from Samantha Smith (Lawyer, WLW Migration Lawyers) (15/2/2021)
·Letter from Japanjot Singh Ganda to the Tribunal (12/01/2021)
·Commonwealth Statutory Declaration of Manish Gulati [unsigned and undated]
·Affidavit of Japanjot Singh Ganda in a matter in VCAT (Applicant: ZPN Group Pty Ltd and George’s Jet Gas (Aust) Pty Ltd) (December 2016)
·Commonwealth Statutory Declaration of Nishant Chouhan (11/02/2021)
·Offer of sub-lease (sub lessor: ZPN Group Pty Ltd, sublessee: Steven O’Shana and Auto Glass Centre of Melbourne Pty Ltd) (15/6/2016)
·Acknowledgement by Steven O’Shana of having received sublease documents (26/10/2016)
·Acknowledgement of sub-lease from Rocco Cuzzila to ZPN Group Pty Ltd (07/11/2016)
·Acknowledgement by Rocco Cuzzila of having received sublease documents (26/10/2016)
·Magistrate’s Court Personal Safety Intervention Orders Act 2010 – Interim Intervention Order (respondent Steven O’Shana) (06/12/2016)
·Acknowledgement of sub-lessee (from Steven O’Shana to ZPN Group Pty Ltd) (8/10/2016)
·Bank statements from Commonwealth bank of:
o   [unnamed]
o   Mrs M Kaur (for the period 31/12/2013 – 30/06/2014)
o   Mrs M Kaur (for the period 01/07/2014 – 30/12/2014) (pages 1-9 of 12 provided)
o   [unnamed]
o   Mrs M Kaur (for the period 01/07/2015 – 30/12/2015)
o   [unnamed]
o   Mrs M Kaur (for the period 31/12/2015 – 30/06/2016) (pages 1-2 of 15 provided)
o   [unnamed]
o   Mrs M Kaur (for the period 10/01/2016 – 09/07/2016)
o   Mrs M Kaur (for the period 10/07/2014 – 09/01/2015)
o   Mrs M Kaur (for the period 01/07/2016 – 30/12/2016)
o   Mrs M Kaur (for the period 10/07/2016 – 21/10/2016) (page 1 of 2 provided)
o   Mrs M Kaur (for the period 10/07/2013 – 09/01/2014)
o   Mrs M Kaur (for the period 09/01/2013 – 09/07/2013) (page 1 of 2 provided)
o   Mrs M Kaur (for the period 10/01/2014 – 09/07/2014)
o   Mrs M Kaur (for the period 10/07/2015 – 09/01/2016) (page 1 of 2 provided)
·Email correspondence between [email protected] and Nishant Chouhan (12/8/2015)
·Tax Invoice (invoice number 0112) from KT Smash Repairs (05/02/2014)
·Email correspondence between Nishant Chouhan and Samantha Smith (11/12/2020)
·Screenshot of facebook post from ‘Save jammu’.
·Bank statement of Mr N Chouhan from Commonwealth Bank for the periods:
o   07/08/2014 – 06/11/2014
o   07/11/2014 – 06/02/2015
o   07/02/2015 – 06/05/2015
o   07/05/2015 – 06/08/2015
o   07/08/2012 – 06/11/2012
o   07/02/2014 – 06/05/2014
o   07/05/2014 – 06/08/2014
·SBS online newspaper article
·VETASSESS: Evidence Guide
·Credit Corp Group financial summary for Mr Nishant Chouhan
·First Auto Assessing assessment report (including First Auto Assessing tax invoice (invoice number ATC00010, 03/02/2014))
·Images of a taxi
·Patient history report depicting scripts dispensed for Nishant Chouhan for the period 10/01/2020 – 31/12/2020 and 01/02/2012 – 01/02/2021
·Upper Endoscopy Report for Nishant Chouhan
·Screenshot of ‘latest contribution’ (08/09/2020)
·Audio clip
·Notice of assessment for Nishant Chouhan for the year ended:
o   30 June 2016
o   30 June 2013
o   30 June 2014
·Notice of amended assessment for Nishant Chouhan for the year ended 30 June 2015
·PAYG payment summary for Nishant Chouhan for the year ending 30 June 2016
·PAYG payment summary for Nishant Chouhan for the year ending 30 June 2015
·PAYG summary worksheet for Nishant Chouhan for the tax year 2014 (payer’s name: Zoom Auto Services Pty Ltd)
·PAYG summary worksheet for Nishant Chouhan for the tax year 2013 (payer’s name: Zoom Auto Services Pty Ltd)
·PAYG summary worksheet for Nishant Chouhan for the tax year 2013 (payer’s name: Preston Motors Pty Ltd)
·Gmail – Fwd: Notification of the grant of a subclass 457 Visa (extracts)
·Screenshot of transactions
·Email from [email protected] to Nishant Chouhan
·Screenshot of transactions (Monday 12 September)
·Screenshot of transactions (Tuesday 26 July)
·Screenshot of transactions (Tuesday 9 August and Wednesday 10 August)
·Letter from Jim Grujevski (Branch Manager, UltraTune, Melbourne Highway, Taylors Lakes)
·Letter from Zoom Auto Services Pty Ltd (10/10/2016)
·Letter from Nishant Chouhan to VETASSESS Australia
·Position description of ‘Motor Mechanic’ at Zoom Auto Services Pty Ltd (10/10/2016)
·Letter from Lorraine Camilleri (Human Resources Manager, PM Automotive Group (10/10/2016)
·Pay slip from Zoom Auto Services Pty Ltd to Nishant Chouhan for the period 6/29/2015 – 7/12/2015
·Statement of academic results for Nishant Chouhan from Cambridge International College Australia for Certificate III in Automotive Mechanical Technology (15/12/2010)
·Testamur from Cambridge International College issued to Nishant Chouhan for ‘Certificate IV in Automotive Technology’ (22/10/2012)
·Statement of academic results for Nishant Chouhan from Cambridge International College Australia for Certificate IV in Automotive Technology (18/10/2012)
·Testamur from Cambridge International College issued to Nishant Chouhan for ‘Certificate III in Automotive Technology’ (16/04/2010)
·VETASSESS Skills Assessment for OSAP (7/10/2016)
·Commonwealth Bank statement of N Chouhan for the period 07/05/2016 – 06/08/2016
·PAYG summary worksheet for Nishant Chouhan for the tax year 2014 (payer’s name: Zoom Auto Services Pty Ltd)
·PAYG payment summary for Nishant Chouhan for the year ending 30 June 2016
·PAYG payment summary for Nishant Chouhan for the year ending 30 June 2015
·PAYG summary worksheet for Nishant Chouhan for the tax year 2013 (payer’s name: Preston Motors Pty Ltd)
·Payroll details of Nishant Chouhan from Preston Motors for the payment period:
o   27/09/2012 – 03/10/2012
o   06/09/2012 – 12/09/2012
o   23/08/2012 – 29/08/2012
o   09/08/2012 – 15/08/2012
o   16/08/2012 – 22/08/2012
o   20/09/2012 – 26/09/2012
o   13/09/2012 – 19/09/2012
·PAYG summary worksheet for Nishant Chouhan for the tax year 2013 (payer’s name: Zoom Auto Services Pty Ltd)
On 16 February 2021 the applicant sent the following document:
·Commonwealth Statutory Declaration of Manish Gulati (15/2/2021)
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the 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.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 1240

1 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies