Chudal (Migration)

[2021] AATA 2158

Chudal (Migration) [2021] AATA 2158 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anoj Chudal

CASE NUMBER:  1934512

HOME AFFAIRS REFERENCE(S):          BCC2019/4464337

MEMBER:Denise Connolly

DATE:25 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

Statement made on 25 March 2021 at 2:43pm

CATCHWORDS
MIGRATION – cancellation – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – provided incorrect answers in visa application – employer was deregistered – applicant was not undertaking the duties of an accountant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 101, 107, 109,
Migration Regulations 1994, r 2.41

CASES
MIAC v Khadgi (2010) 190 FCR 248

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 to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with s.101(b) of the Act having found he provided incorrect answers in his visa application. 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. The applicant appeared before the Tribunal on 18 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Ms Usha Chudal.  The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CLAIMS AND EVIDENCE

   Background to the review

5. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 4 January 2016 the applicant submitted and Expression of Interest (EOI) online relating to skilled migration in which he provided the following information about his related employment: he worked as an accountant for Sydney Telecom Pty Ltd from 1 July 2015 to 4 January 2016; and he worked as an accountant for Education Park from 12 July 2015 to 7 July 2015.

6. The applicant was then invited to apply for a Subclass 190 visa on the basis of being nominated by the ACT government. On 27 February 2016 he lodged an application for a Subclass 190 visa. In the Application for Points Based Skilled Migration Visa he acknowledged he understood that giving false or misleading information is a serious offence and that he had read and understood the information provided in the application. He also confirmed that he had provided complete and correct information in every detail on the form and in any attachments to it. He understood that if any fraudulent documents or false or misleading information had been provided with the application, the application may be refused and he may be unable to be granted a visa for a specified period of time. He confirmed that he understood that if documents were found to be fraudulent or information was found to be incorrect after the grant of the visa that his visa could be cancelled.

7. The applicant provided a Form 80 - Personal particulars for assessment including character assessment dated 21 April 2016 in which he claimed that from July 2015 to date he was employed as an accountant for Sydney Telecome. He declared that the information provided was correct and up-to-date in every detail.

8. On 7 April 2016 the applicant provided a Form 1221 - Additional personal particulars information in which he advised that he was currently employed as an accountant, having commenced on 27 July 2015, by Sydney Telecome, Level 1, The Realm, 18 National Circuit Barton Canberra ACT 2600. He provided a contact telephone number, 8089 0929, and an email address [email protected]. He advised that the type of business was “Network”. He advised that his duties were “assisting audit work, book keeping and so on”. He advised that he had been employed by Sydney Telecome from July 2015 to April 2016. He declared that the information he provided was complete, correct and up-to-date in every detail. He signed the form on 7 April 2016.

9. The delegate noted that the ACT Treasury and Economic Development Directorate (ACT government) advised the Department that, shortly after the approval of the applicant’s EOI on 26 February 2016 they attempted, but were unable to, contact his employer, Sydney Telecom. The ACT government raised concerns about whether the business was in fact operating in Canberra. The particulars provided by the ACT government are discussed in more detail below in the Tribunal’s consideration of claims and evidence.

10. The delegate noted that the ACT government provided to the Department a copy of the applicant’s employment reference letter from Sydney Telecom, submitted by him to them as part of his EOI. Anomalies in that letter were identified and discussed by the delegate. The delegate formed the view the applicant had provided false information to the ACT government in relation to the approval of his EOI with the ACT government.

11. Based on this information, the delegate formed the view that the applicant had provided incorrect answers in his Subclass 190 visa application in the Form 80 dated 21 April 2016 and the Form 1221 dated 7 April 2016.

12. Having formed the view that the applicant had not complied with section 101(b) of the Act the delegate wrote to the applicant under s.107 on 28 October 2019 providing the particulars of the possible non-compliances. The applicant provided to the Tribunal a copy of the Notice of Intention to Consider Cancellation under s.109 (the s.107 notice).

13. The applicant’s representative responded on 15 November 2019, discussed in more detail in the Tribunal’s consideration of claims and evidence.

14. The applicant claimed to have worked for Sydney Telecom in the relevant period. The business was owned by EP Migration and subsequently sold on 11 January 2016 along with its company’s documents, files, numbers and other key business resources. The representative provided a copy of a contract of sale, the vendor being EP Migration and the purchaser Sydney Telecom, and a lease agreement signed by EP Migration. The applicant asserted that the employment references, payslips and supporting documents were supplied to the Regional Certifying Body (RCB) “at the time of survey”. The applicant argued that a notice of correction provided to the Department was not taken into consideration. It was submitted the reference letter should have been dated 12 January 2016. The applicant provided a copy of the reference letter to the Department, annotated “(Mistaken Copy)”. It states the applicant had been performing from 1 July 2015 the following functions for the business: preparing financial documents, BAS statements and other management reports, preparing cash flow, budgeting and assisting bookkeeping systems required by ATO, disbursing funds for payroll, assisting in the audit working papers of ATO compliance and maintaining bookkeeping systems.

15. The applicant asserted that Sydney Telecom is still a registered entity and provided the ASIC register record. The applicant understood that it was essentially a shelf company and no longer operational or conducting business transactions. He understood that, at the time of application, the business was “attempting to secure lucrative public sector support contracts” however those efforts bore little fruit and the business “disappeared” as a visible entity.

16. The applicant could not explain the ACT government’s inability to locate historical data for the business. He thought this might be explained by the ineffective administration and registration of the business by its proprietors, or the complex arrangements involving shadow companies with which the entity was related.

17. It was acknowledged that the s.107 notice pointed out “seeming anomalies with information supplied” but the applicant denied this was an attempt to obfuscate or hide certain facts. It was acknowledged that the contact number provided for the employer was in fact the contact number for EP Migration. The applicant asserted that this was simply a practical measure and one of conventional practice for some representatives in the industry as many employers have a high turnover of persons in key roles and may not be familiar with the applicants in their employ. At the time the applicant was working for Sydney Telecom, EP Migration had not yet sold the business and so they thought it was prudent to supply EP Migration’s telephone number as the contact details for the business, given its uncertainty surrounding subsequent ownership. With respect to the incorrect spelling, Telecome, it was asserted that this was a typographical error and not an attempt to mislead the decision-maker.

18. With respect to the employment reference letter dated 12 January 2015, certified on 14 January 2015, stating the applicant was employed from 1 July 2015 it was acknowledged that this is a glaring inconsistency. The applicant claimed that the reason for the discrepancy was that the employment arrangements had been made earlier that year and the signatory to the agreement was committed to providing documentary evidence in support of the application in the event of his possible absence.

19. It was asserted that the applicant would have been granted the visa irrespective of the short period of employment claimed with Sydney Telecom because he is highly employable and possesses skills and attributes in demand in the ACT labour market. He asserted that he had no reason to manufacture employment claims. He refuted the claim of non-compliance and asserted that the anomalies were due to a range of factors more to do with clerical errors than a deliberate attempt to deceive. He denied supplying bogus documents.

20. The applicant advised that he intends to seek citizenship in order to join the Australian Defence Force. He wishes to embark on a noble career to serve his newly adopted country. He had attempted on three occasions to work for the Department of Defence however was informed that he requires citizenship. He has been working as a taxpaying member of the community and has been law abiding at all times. He has no history of non-compliance with other visas held.

21. Having considered the applicant’s claims and evidence, including the written response given by the applicant to the s.107 notice, the delegate found there was non-compliance with s.101(b) in the way described in the notice. Having considered the information and the applicant’s response, relevant to the prescribed circumstances set out in r.2.41, the delegate decided to cancel the visa.

    Prehearing submissions to the Tribunal

22. The applicant’s representative made submissions to the Tribunal on 15 March 2021 advising the applicant has completed a diploma and tertiary qualifications in accounting, and also has additional vocational qualifications. A summary of his work experience was provided. The claim that he worked as an accountant from 2015 to 2016 for Sydney Telecom was repeated. He advised that the applicant now owns and directs a business, Three Leaves Pty Ltd. He also advised the applicant’s partner has nursing qualifications and is registered as an enrolled nurse but was working in a hospital as a cleaner.

23. The representative advised that in 2015 one of the companies the applicant’s employer was associated with, Sydney Telecom, was sold to a third party. The applicant was offered a job as an accountant which he took and moved to Canberra for the employment. He applied for ACT nomination. During the assessment of the nomination, errors were detected on the reference letter provided by the employer. A new reference letter was provided and the nomination was approved. The applicant settled in the ACT and the Subclass 190 visa was granted. He left the employment soon after the approval of the nomination because the employment was not binding from the perspective of the ACT government or the employer. The applicant tried to start a restaurant business but was unsuccessful in getting a lease. He established his own company and purchased a house in Canberra.

24. The representative advised that Sydney Telecom did not operate for long, moved out of the ACT and was finally deregistered. The aim of the company was to get involved in government contracts but it was unsuccessful so they decided to close as the owner was involved in different businesses in other states.

25. The representative noted that the ACT government’s complaint to the Department triggered the cancellation. He noted that the ACT had provided a copy of the reference letter with errors. It was submitted that the first letter did have errors but a second letter was provided to the ACT’s satisfaction. It was argued that the first letter is no longer a relevant document. He provided a copy of this letter to the Department.

26. With respect to the phone number and email address it was submitted that if a company wishes to use the contact details of the vendor there is nothing in the law to stop this. Many companies use their accountant’s address as the registered address for convenience. It was submitted that the company had a physical address in Canberra, however due to the short period of operation the company was not listed in the yellow or white pages. It was submitted that there was a typo in the email address and that this is a common mistake.

27. It was submitted the allegation that the employment offer appeared to be fraudulent did not articulate specifically the fault of the applicant. The ACT government had adequate staff to check the documents and the final authority to approve the nomination. It was submitted the ACT government mismanaged the case and should have quizzed the employer if they were not satisfied. With respect to the delegate’s concern that the employment offer was made by a migration agent, the applicant was not sponsored or employed by the migration agent company. The company in question was already sold to R Ahmed. If the ACT government was concerned, they should have taken further action and contacted MARA.

28. With respect to the ACT government’s concern that, in the applicant’s and similar cases, the documents appeared to be fraudulent, as all nominees were represented by the same migration agent, it was submitted that there is no limitation to the number of applications a migration agent can manage. It was asserted that it would be unfair to cancel someone’s permanent visa on mere speculation. The ACT government decided to approve the nomination and had no doubt at the time of its decision. The nomination was approved in February 2016 and the ACT government did not raise the issue with the Department until June 2016. It was asserted that the authority should have acknowledged they made a mistake in approving the nomination and should have investigated and sought help from the federal police, rather than referring it to the Department’s cancellation unit.

29. The representative noted that the Department did not act on the ACT government’s referral for three years. It was only when the applicant made his citizenship application that the visa was cancelled. He considers this unreasonable as the applicant had started investing and embracing Australia as his home.

30. The representative asserted that the ACT government should have removed the document which was acknowledged to have an error, the reference letter dated 12 January 2015. The corrected letter should have been substituted.

31. It was asserted that the EOI is not a visa application. The employment in question with Sydney Telecom did not change the applicant’s points and so there was no real benefit for the applicant. In his view the visa therefore was unfairly cancelled.

32. With respect to the prescribed circumstances it was asserted that the correct information was that the applicant was employed by Sydney Telecom. All documents were true and correct. As the information provided was correct, the visa was granted on the nomination of the ACT authority. That authority was responsible for investigating any concerns about documents and it should not have been referred to the Department for cancellation.

33. With respect to the present circumstances, the applicant has settled in the ACT since 2015. He employs 3 to 4 people in his business which is currently progressing. He has purchased a house and has no intention of moving anywhere else. His partner is a registered enrolled nurse. He was not able to join the Department of Defence because he is not a citizen. The allegation dates back to June 2016 and the cancellation process was not initiated until late 2019. This is a significant period and the applicant has been “spotless” since with no breaches of law. Regarding his contributions to the community he has expressed an interest in joining the Australian Defence Force. He was also the captain of the Canberra Nepalese Cricket Club from 2016 to 2018 and has been a strategic leader for players and the community, enhancing the spirit of sportsmanship, and sharing and running meetings further various events. He was also the President of Siddhartha Sadhak Pariwar Australia from 2012 to 2015. The applicant’s partner, as a registered enrolled nurse, is a frontline worker ready to enter the workforce which is important considering the current pandemic.

    Hearing on 18 March 2021

34. At the hearing the Tribunal explained to the applicant the requirements of the law and the concerns raised by the evidence in his case. It set out for the applicant the non-compliance identified and particularised in the s.107 notice. It also explained that the Tribunal was of the preliminary view that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 appeared to comply with the statutory requirements. The Tribunal discussed with the applicant his migration history and employment background in Australia, and his circumstances in the event the visa is cancelled. The applicant’s oral evidence is summarised as follows.

35. The applicant came to Australia in February 2008 as a student. He completed a Diploma and Bachelor of Accounting, initially commenced at Central Queensland University and completed at Kings Own Institute. He completed a professional accounting year in 2014/2015, although he could not remember where.

36. The applicant’s partner came to Australia in 2015 after the couple married in Nepal. They have no children but are planning to have a family in the future.

37. The applicant’s student visa expired in 2014 and he was granted a Subclass 485 visa valid until 9 May 2016. He worked at Education Park on a part-time basis as a junior accountant, undertaking bookkeeping. Education Park is an education consultant. The Tribunal asked about that business’ earnings and gross income. He was not really sure although he thought their gross income for the last year he was there was $150,000 and the net income was about $100,000. The Tribunal asked about the number of staff employed by Education Park. He thought they might have employed five people, a receptionist, two university contact staff and the applicant as the accountant. He indicated his taxable income for the last year was $24,000. He did not have evidence of this as he was paid in cash. He indicated it was not until late in that employment that his payments were made by bank transfer.

38. The applicant indicated that while working at Education Park, as the holder of a Subclass 485 visa he worked in cafés, Three Beans and Italian Fusion. He had already been working at Three Beans as a barista at the café in 2014 when he commenced work at Education Park. He had previously worked at Italian Fusion in 2012. He returned to that employment in May 2014 and worked at Italian Fusion, Newington, NSW until August 2015 when he moved to Canberra.

1. The applicant indicated he commenced working for Sydney Telecom in August 2015. He was paid $28 per hour, $55,000 a year. He worked there on a full time basis. He stopped working there in May 2016, after about eight months’ employment. The Tribunal asked about the location of his employment for Sydney Telecom. He indicated that when he started he was living in Auburn, NSW but he moved to Canberra in November 2015 and lived at Western Creek. He would come to Sydney on weekends. He then said he lived both in Canberra and Sydney until February 2016 when he finally moved to Canberra.

2. The Tribunal asked the applicant why he ceased working for Sydney Telecom in May 2016, shortly after the grant of his Subclass 190 visa. He indicated the business was finding it hard to pay him. The owner Raymond Ahmed was supporting the business while he tried to establish an education consultancy company. He wanted to open an education institute in Canberra. The Tribunal asked the applicant about the source of the business’ income. The applicant provided a vague answer although indicated that the income came from Mr Ahmed. He indicated that Mr Ahmed had an institute in Melbourne and that was the source of the money for Sydney Telecom. He clarified that, despite being the business’ accountant, he was not really sure where Mr Ahmed sourced the income for the business.

3. The Tribunal asked the applicant about his duties in the business. He indicated that his job was to get in contact with clients and tell them that the business was going to open an education institute. He would call about 50 people a day. It was customer based work. Overall he recruited about 10 prospective students for the education institute. He did this work from a room in Canberra. The plan was to open the education institute once they had 50 students. However they could only secure 10 students so the business did not go ahead.

4. The Tribunal explained to the applicant that his oral description of his duties did not match the duties of an accountant. It raised its concern that it may not be satisfied he was employed as an accountant by Sydney Telecom. It also noted that he was unable to explain to the Tribunal the source of income for the business, despite claiming to be its accountant. The applicant indicated he was paid as the accountant. This was arranged by a migration agent Mr Khilendra. He worked with him at Education Park. He told the applicant that he thought he was good so he could go to Sydney Telecom to help establish the business. He met Mr Khilendra when he went to work at Education Park, introduced by friends.

5. The Tribunal asked the applicant to describe in detail the complex arrangements with shadow companies with which the entity was related, as claimed in his written response to the s.107 notice to explain why the ACT government was unable to locate historic data for the business. The applicant indicated that the business was related to EP Migration.  EP Migration sold to Sydney Telecom its information about clients. Sydney Telecom then used that information to try to recruit students for its plan to open an education institute in Canberra. The Tribunal asked why this was a complex arrangement with shadow companies. The applicant was very vague in his response and unable to explain the claim.

6. The Tribunal asked the applicant about the number of employees at Sydney Telecom. He indicated that there was just him and Mr Ahmed, “just the two of us”. He then indicated he did not know how many people were employed by the business. The Tribunal asked why the applicant, as the accountant disbursing funds for payroll as claimed in the reference letter, would not be aware of the number of employees at the business. The applicant then stated there were three employees at the business. They worked from a small room near Parliament House. The Tribunal questioned why the applicant would not have been able to provide the phone number of the business in circumstances where the business was so small, noting one explanation given for providing the migration agent’s number was that it was a practical measure and a conventional practice for some representatives in the industry as many employers have a high turnover of persons in key roles and may not be familiar with the applicants in their employ. The applicant indicated the business had a relationship with the migration agent. Mr Ahmed had bought the business from Mr Khilendra.

7. The Tribunal raised its concern with the applicant that he had spelt the business name incorrectly by referring to “Sydney Telecome” and that this might cast doubt on his claim to have been the accountant for the business, or employed by the business. It explained it may form the view that an accountant would take care in providing particulars, given the nature of their work. The applicant indicated that he did not notice that the letterhead was spelt incorrectly. He was confused about the spelling. He thought that it was a typographical error, an error made using a keyboard. The Tribunal noted however that the applicant had completed the Form 80 and Form 1221 by hand, and still misspelt the name of the business for which he claimed to be working as the accountant. The applicant had no response.

8. The Tribunal also raised its concern that the duties he had described were not those set out in the reference letter and this might cast doubt on his claim to have worked for the business as an accountant. The applicant indicated that they were the duties he was intended to do. However there was not enough money and the business did not work out. Mr Ahmed stopped the business because there was no money.

9. The Tribunal asked about the business’ gross income in the period in which he claims to have been its accountant. His response was “a bit less”.

10. The Tribunal asked the applicant if the business was set up solely for the purpose of assisting him to secure permanent residence. He indicated he was not sure.

11. The Tribunal raised its concern that the reference letter may be a bogus document because the duties described in it are not consistent with those he indicated he undertook. The applicant indicated this was because the company did not do well.

12. The Tribunal raised its concern about whether the business existed as he has claimed. The applicant claimed the business was bought from Mr Khilendra. EP Migration’s goodwill (client details) was then used to contact people to try to lock in students to set up an education institute in Canberra. However the education institute was not ever set up because they could only recruit 10 people.

13. The Tribunal noted that the lease document indicates the property leased from February 2015 to February 2016 was an office suite in York Street Sydney, not in the ACT. The applicant indicated it was initially running in York Street but then they moved to Canberra. He worked for about two or three weeks in York Street. The Tribunal asked when he started working there. He indicated it was in July 2015. He also continued to work at Italian Fusion, Newington NSW on weekends, where he was the café manager.

14. The Tribunal discussed with the applicant the prescribed circumstances set out in r.2.41. With respect to the correct information the applicant asserted that he was working at Sydney Telecom helping to set up the business. He acknowledged that he did not undertake the duties described in the reference letter, such as completing documents for ATO.

15. The applicant indicated the reference letter provided to the ACT government was correct; it just had the wrong date. It should have been dated 12 January 2016. With respect to the duties described in the letter, he was supposed to undertake those duties but could not because the business was not successful. This was why they closed the business once he had secured permanent residence, when he resigned because Mr Ahmed could not pay him.

16. Regarding whether the decision to grant the visa was based wholly or partly on incorrect information or a bogus document, the Tribunal asked the applicant if he would have been sponsored by the ACT government if he was not an accountant working for a business based in Canberra. The applicant indicated that it was the intention of Sydney Telecom to run a business from Canberra. The Tribunal indicated it may form the view that, if ACT government had been aware that the business was not operating as claimed, and that he was not employed for Sydney Telecom as had been advised and described in the reference letter, it would not have approved the nomination. He indicated that when the contract was arranged the letter was prepared. He acknowledged the letter was prepared before he started working for the business. The Tribunal raised, in that case, its concern that the letter actually states he has been performing those functions, that is, preparing financial documents, best statements another management reports, preparing cash flow, budgeting and assisting bookkeeping systems required by ATO, disbursing funds the payroll, assisting in the audit working papers of ATO compliance and maintaining bookkeeping systems. The applicant merely repeated that he could not perform the duties described in the reference letter because the business was not successful.

17. The Tribunal asked the applicant about the circumstances in which the alleged non-compliance occurred. The applicant repeated that the business was not successful.

18. The Tribunal asked about the present circumstances of the applicant. He indicated he has purchased a property in Canberra for $555,000. He lives there with his wife, who co-owns the property, and three other people. He owes a mortgage of $482,000. The applicant started working for a handyman business in 2017 which undertakes bathroom and kitchen renovations. He purchased the business in April 2018. He does not employ staff but subcontracts tradesmen. He does work for real estate agents, fixing up properties. He does not have a relevant building qualification. The government has given him $20,000 for the business. He currently has two contracts to renovate kitchens. He believes he needs to engage more people to complete work for the business. The applicant’s wife works as a cleaner at Canberra Hospital, four days a week.

19. Regarding the applicant’s subsequent behaviour, he indicated there have been no issues with his compliance. Regarding any other instances of non-compliance, he indicated there has been no non-compliance, no breaches of visa conditions and no criminal activity.

20. With respect to any contribution to the community, the applicant indicated he plays an important role in his cricket team which he built up to 70 members and three teams. He was the team captain from 2017 to 2018.

21. The Tribunal asked the applicant if there was any other evidence he wished to have taken into account about any other relevant factors. The applicant stated he would have been awarded no points for the employment so it was not included in his visa application. With respect to the possibility of needing to depart Australia, he indicated he has been settled in Australia for many years and could not apply to work for Defence because he does not have citizenship. However he is really good at maths and wants to undertake further study and research in Australia. He believes if he gets a chance he can “change the world”. It will be hard for him to return to Nepal and re-establish himself, given his age, 35. He confirmed that he has family in Kathmandu and is in contact with them.

22. The Tribunal asked the applicant’s partner if she had any evidence she wished to give. She indicated that she is now a registered enrolled nurse. She hopes to have a family and then study for Bachelor and Master degrees in the future. She started working as soon as she arrived in Australia. She cannot apply for any other visa now because of the circumstances. Her visa will be cancelled consequentially after her having been here for 3½ years. She could have undertaken a nursing qualification in the meantime had it not been for the visa cancellation. She also has family in Nepal.

23. The Tribunal invited the representative to make any submissions. He referred to the applicant’s property ownership. He indicated that it was an error to leave out the Sydney Telecom employment from the visa application however the information was provided in the EOI. Regarding the nomination by the ACT government, there was no requirement for the applicant to work in the ACT. It was a condition at the time that he live in Canberra but it was not mandatory for him to remain in employment there.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Was there non-compliance as described in the s.107 notice?

24. 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.101(b) (no incorrect answers are given or provided). The s.107 notes states in part as follows:

    On 4 January 2016 you submitted an Expression of Interest (EOI) in the Department’s SkilledSelect online system relating to Skilled Migration to Australia in which you provided the following information:

    Employment

Position	Employer name	Country	Date from	Date to	Related employment
Accountant	Sydney Telecom Pty Ltd	Australia (ACT)	1/07/2015	4/1/2016	Yes
Accountant	Education Park	Australia (NSW)	12/7/2014	7/7/2015	Yes

On 24 February 2016 based on the information in your EOI, you were invited to apply for a Skilled - Nominated (Subclass 190) visa on the basis of being nominated by a state/territory government namely the Australian Capital Territory (ACT) government. On 27 February 2016 you lodged an application for a Skilled - Nominated (Subclass 190) visa. In your Application for Points Based Skilled Migration Visa form you provided the following responses….

…

Declarations

Warning:

giving false or misleading information is a serious offence.

The applicant declared that they:

Have read and understood the information provided to them in this application.

Yes

have provided complete and correct information in every details on this form, and on any attachments to it.

Yes

Understand that if any fraudulent documents or fossil misleading information has been provided with this application, or if any of the applicants failed to satisfy the Minister of their identity, the application may be refused and the applicant’s and any member of their family unit may become unable to be granted a visa for a specified period of time

Yes

Understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled.

Yes

In your application, you provided a Form 80 – Personal particulars for assessment including
character assessment dated 21 April 2016 in which you provided the following responses:

47. Give details of all employment including periods of unemployment (in part)
Note: If you are unable to provide details for a period, please provide an explanation.

Date from: 07/2015

Date to: CURRENT

Name and address of employer/business:
SYDNEY TELECOME

Type of business/other activities:
Private LTD

Your position/duties/how you spent your time if unemployed:
ACCOUNTANT

Part J - Declaration

62. I declare that
• the information I have supplied in or with this form is complete, correct and up-to-date in
every detail
• I have read and understand in information supplied to me

Signed and dated 21/04/2016 by the applicant

In your application, you provided a Form 1221 – Additional personal particulars information dated 7 April 2016 in which you provided the following responses:

Part D – Current employment details

24. Are you currently employed
Yes

Give details of your current employment

Employment commenced - 27/07/2015

Name of employer
SYDNEY TELECOME

Address of employer
Level 1, The Realm, 18 National Circuit, Barton, Canberra, ACT 2600

Contact telephone

[phone]

Email address (if applicable)
[email protected]

Type of business
Network

Occupation/Position
Accountant

Detailed job description
Assisting Audit work, Book keeping and so on

Part E – Employment status in the last 10 years

25. Give details of your employment status in the last 10 years (in part)

Date from: 07/2015

Date to: 04/2016

Name and address of employer/business:
SYDNEY TELECOME

Type of business/other activities:
Pty Ltd

Your position/duties/how you spent your time if unemployed:
Accountant

Part P - Declaration

46. I declare that (in part)
• the information I have supplied in or with this form is complete, correct and up-to-date in
every detail

• I have read and understand in information supplied to me
Signed and dated 07/04/2016 by the applicant

1. The delegate noted the ACT government had advised the Department that, shortly after the approval of the applicant’s EOI on 26 February 2016, they attempted, but were unable to, contact his employer, Sydney Telecom. They quoted the number they had been provided, stated on the employment reference letter as the contact number for Sydney Telecom. However they noted that it is also the contact number for EP Migration Australia located in Sydney NSW. Further the ACT government was unable to contact Sydney Telecom via the email provided [email protected], the email address printed on the applicant’s employment reference letter. It appeared to be spelt incorrectly. The ACT government was also unable to locate any Internet or Yellow Pages listing for Sydney Telecom located in the ACT.

2. The delegate noted that the ACT government provided to the Department a copy of the applicant’s employment reference letter from Sydney Telecom submitted by him as part of his EOI. Besides the above-noted incorrect contact number and email address, the delegate noted the letter was dated 12 January 2015 and indicates it was certified  by a JP on 14 January 2015. However the delegate also noted the letter states that the applicant was employed by Sydney Telecom from 1 July 2015. It was noted that the letter predates the applicant’s employment commencement date.

3. The delegate noted that the information obtained by the ACT government appears to indicate that the applicant was not employed at Sydney Telecom or Sydney Telecome from July 2015 or earlier and that the employment reference letter he provided to the ACT government in relation to his EOI is a bogus document. The delegate formed the view that the applicant had provided false information to the ACT government in relation to the approval of his EOI with the ACT government.

4. Based on this information, the delegate formed the view that the applicant had provided incorrect answers in his Subclass 190 visa application as follows:

   ·by stating at Q 47 of Form 80 dated 21 April 2016 that he was employed at Sydney Telecome from July 2015 onwards as an Accountant

   ·by signing and declaring at Q 62 of Form 80 dated 21 April 2016 that the information he supplied was complete and up-to-date in every detail

   ·by stating at Q 24 of Form 1221 dated 7 April 2016 that he was employed at Sydney Telecome from 27 July 2015 onwards as an Accountant

   ·by stating at Q 25 of Form 1221 dated 7 April 2016 that he was employed at Sydney Telecome from July 2015 to April 2016 as an Accountant

   ·by signing and declaring at Q 46 of Form 1221 dated 7 April 2016 that the information he provided was complete and up-to-date in every detail.

5. In determining whether there was non-compliance as described in the notice, the Tribunal has had regard to the relevant evidence before it, including the applicant’s written submissions and oral evidence provided at the hearing.

6. In the written response to the s.107 notice dated 15 November 2019 it was asserted that the applicant worked for Sydney Telecom in the relevant period. The business was owned by EP Migration and sold on 11 January 2016 along with its company’s documents, files, numbers and other key business resources. The representative provided a copy of a contract of sale, the vendor EP Migration and the purchaser Sydney Telecom, and lease agreement signed by Mr Khilendra of EP Migration. The applicant has asserted that the employment references, payslips and supporting documents were supplied to the Regional Certifying Body (RCB) “at the time of survey” and believes they should be readily available through the ACT government records. The applicant argued that a notice of correction, correcting the date of the letter, was provided to the Department but was not taken into consideration. It was submitted the reference letter should have been dated 12 January 2016.

1. The Tribunal has taken this evidence into account however it does note that the so-called mistaken copy of the reference letter indicates that it was witnessed and certified by a Justice of the Peace on 14 January 2015. However it also notes the applicant’s oral evidence that the reference letter was prepared before he commenced working for the business even though it claims “he has been performing functions for our company”.  He indicated it was prepared prior to his commencement in the event of the possible absence of the signatory. The Tribunal also notes the written reference sets out various duties typical of those of an accountant. However on his own oral evidence he did not undertake those duties. He admitted to the Tribunal that he did not prepare for Sydney Telecom documents required by ATO. The Tribunal finds that, even if the letter was dated 12 January 2016, there are serious doubts as to the veracity of the claims made in the letter.

2. The Tribunal accepts the evidence confirming Sydney Telecom was a registered entity, as indicated by the ASIC register record provided. It is not satisfied however that this demonstrates that the applicant was working as an accountant for the business, as claimed in the Form 80 and Form 1221. The Tribunal notes the description of the business and its intention to “to secure lucrative public sector support contracts”. It notes this is somewhat different to the description provided by the applicant at the hearing, that the owner of Sydney Telecom, Mr Ahmed, intended to establish an education institute. It is not satisfied Sydney Telecom’s registration supports the applicant’s claim in the Form 80 and Form 1221 to have worked as an accountant for the business in the period July 2015 to April 2016.

3. The Tribunal notes in the written response to the s.107 notice it was acknowledged that there were “seeming anomalies with information supplied” but the applicant denied this was an attempt to obfuscate or hide certain facts. It has considered the reasons for giving the number of the migration agent as the contact number, including that this was a conventional practice in the industry as many employers have a high turnover of persons in key roles and may not be familiar with the applicants in their employ. On the applicant’s evidence Sydney Telecom employed at most three people. The Tribunal is not satisfied this adequately explains why the contact number provided was not that of the business but that of a migration agent. The Tribunal is of the view that, in the circumstances of this case, the provision of the migration agent’s contact details strongly suggests the business was not operating and may have been established, at least in part, merely to give the impression that the applicant was employed in a skilled occupation in the ACT.

4. With respect to the incorrect spelling, Telecome, it was asserted that this was a typographical error and not an attempt to mislead the decision-maker. However as discussed with the applicant at the hearing the Tribunal notes the incorrect spelling was hand written, in both the Form 80 and Form 1221, by the applicant, strongly suggesting in the Tribunal’s view that the applicant was not familiar with the business Sydney Telecom.

5. The Tribunal has taken into account the applicant’s claim that the reason for the discrepancy in the date on the reference letter was that the employment arrangements had been made earlier that year and the signatory to the agreement was committed to providing documentary evidence as support of the application in the event of his possible absence. The Tribunal has some doubt about this explanation and notes the letter indicates the applicant had already been undertaking the duties of an accountant. The Tribunal is of the view the preparation of the letter, prior to the applicant’s commencement of employment, indicating he was already undertaking the duties of an accountant for the business, raises significant concerns that misleading material was intentionally prepared to give the impression the applicant was employed as an accountant for Sydney Telecom in the ACT.

6. The Tribunal is also of the view the applicant’s evidence about the timing of his move to Canberra is inconsistent and unpersuasive. It is not satisfied the applicant had moved to Canberra by July 2015. His evidence about the number of employees working for Sydney Telecom also raises significant concerns as to whether he actually worked for the business.

7. On all the evidence before it the Tribunal is not satisfied the applicant was employed as an accountant for Sydney Telecom from 27 July 2015 to April 2016 as claimed in the Form 80 and Form 1221. For these reasons, the Tribunal finds that there was non-compliance with s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

8. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

9. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations and addressed below.

   The correct information

10. The Tribunal finds the correct information is that the applicant was not employed as an accountant for Sydney Telecom in the period 27 July 2015 to April 2016. When invited to comment on this, the applicant indicated that it was the intention that he work as an accountant in that period but this was not possible because the business did not do well. He claims that during this period he was contacting students about the business’ intention to open an education institute in Canberra. The Tribunal is not satisfied the duties he described in his oral evidence in any way reflect those of an accountant. Given its concerns about the vagueness of his evidence regarding the nature of the business, its income and number of employees, the Tribunal is not satisfied on the evidence before it that the applicant was in fact working for Sydney Telecom in the ACT in the period July 2015 to April 2016.

11. The Tribunal is of the view the incorrect information provided is a significant factor. It is of the view, if the correct information had been known to the Department, that is, he was not employed in skilled employment as an accountant for Sydney Telecom in the period claimed, the applicant would not have been granted the Subclass 190 visa. The Tribunal is of the view this weighs strongly in favour of cancelling the visa.

    The content of the genuine document (if any)

12. The Tribunal notes that the applicant provided the reference letter to the ACT government in relation to his EOI. He did not provide the document to the Department at the time of his Skilled - Nominated visa application, however he did subsequently provide a copy to the Department in his response to the s.107 notice, claiming that it had been incorrectly dated. He has admitted to the Tribunal that he was not undertaking the duties described in that letter. Essentially he has admitted information in the letter provided is false or misleading. Even if the Tribunal accepts that there was an unintentional error in its date, it is of the view a genuine reference letter would not state the applicant was employed as an accountant, in the period claimed, undertaking the duties claimed.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

13. The ACT government raised with the Department its concern that it was unable to contact Sydney Telecom using the contact details provided by the applicant. The applicant claimed that this was because in April 2016 the business closed because it had been unsuccessful. The ACT government also advised that the email address provided appeared to have been spelt incorrectly, the phone number was in fact a migration agent’s, and the business was not listed on the Internet or in Canberra’s Yellow Pages. It is recorded in the delegate’s decision record, provided to the Tribunal by the applicant, that the ACT government raised its concern with the Department that it had been provided with a bogus document in relation to the applicant EOI for nomination.

14. On the evidence before it the Tribunal is not satisfied the applicant was employed as an accountant for a business in Canberra, or that Sydney Telecom was operating in Canberra. It is not satisfied the applicant has adequately explained why the contact details provided were those of the migration agent. It finds the explanation that it is often the case that migration agents details are provided because many employers have a high turnover of persons in key roles and may not be familiar with the applicants in their employ, to be irrelevant in the circumstances of this case. There is no evidence to indicate that the business employed a number of people in key roles. The Tribunal raised with the applicant its concern that the business was established solely for the purpose of facilitating the applicant’s permanent residence. His response was that he was not sure. The Tribunal finds this highly concerning.

15. The Tribunal takes into account the submission that the applicant was not required to continue to work in Canberra after the nomination was approved. Given the Tribunal’s concerns about the inconsistencies in the applicant’s evidence about when he moved to Canberra, is not persuaded that the applicant was residing in Canberra at the time the ACT government approved the nomination. The Tribunal is of the view that, had the ACT government known that the applicant was not employed as an accountant by Sydney Telecom, located in Canberra, and that the business was not genuinely operating in Canberra, and that he was not residing in Canberra, it is highly likely it would not have not have approved the nomination on 24 February 2016. The Tribunal notes that the Subclass 190 visa requires that the applicant be nominated by a State or Territory. Had the ACT government not approved the nomination, the applicant would not have received an invitation from the Department to apply for a Skilled - Nominated visa on 24 February 2016. The Tribunal is of the view therefore the decision to grant the visa was based, at least in part, on incorrect information or a bogus document.  It has formed the view this factor weighs in favour of cancelling the visa.

    The circumstances in which the non-compliance occurred

16. The Tribunal has concluded that in April 2016 the applicant provided incorrect information to the Department, in the Form 80 and Form 1221, in relation to his Skilled - Nominated visa application. The applicant has indicated that this was in circumstances where the ACT government had made clerical errors and had not undertaken the relevant investigations before they approved the nomination. Even if it is the case that the ACT government should have undertaken further investigations before approving the nomination, the Tribunal is not satisfied this mitigates in any way the applicant’s decision to provide incorrect information to the Department in relation to his employment in Australia.

17. The Tribunal asked about the applicant’s circumstances around the time the visa application was made and the Form 80 and Form 1221 were lodged with the Department. He indicated that he had ceased working for Sydney Telecom in May 2016 because the business was no longer viable but he had worked for the business up until then, calling prospective students. For reasons given above the Tribunal is not satisfied he was working for Sydney Telecom when the non-compliance occurred. It is concerned he has not been frank about his employment around the time of the non-compliance. 

18. The Tribunal is of the view the circumstances in which the non-compliance occurred were that the applicant intentionally provided incorrect information purporting to be employed in a skilled position as an accountant when lodging the Form 80 and Form 1221 to achieve his preferred migration outcome. It gives this fact a significant weight in favour of cancelling the visa.

    The present circumstances of the visa holder

19. The Tribunal accepts that the applicant has established a handyman business undertaking kitchen and bathroom renovations in Canberra. While written submissions were that he employs staff in the business, the Tribunal accepts his oral evidence that he does not employ anyone; he subcontracts tradesmen. The Tribunal is not satisfied that any Australian citizen or permanent resident will lose their employment if the visa is cancelled.

20. The Tribunal accepts that the applicant and his partner, an enrolled nurse, have purchased a property in Canberra. It notes that property was purchased for $555,000 and the mortgage is currently $482,000. The Tribunal acknowledges that the applicant and his partner have been living and working in Canberra and would like to continue to do so. On the basis of this purchase it accepts that the applicant intended to remain in Canberra permanently. It gives this factor some weight although it is satisfied that the applicant will be able to sell the property and will not necessarily be financially disadvantaged if the visa is cancelled.

21. The applicant told the Tribunal he has plans to study and become an Australian citizen. He has indicated his desire to work for Defence. The Tribunal accepts the applicant may have had study and career plans.

22. The Tribunal accepts that the applicant’s partner is a registered enrolled nurse and intends to seek employment in the nursing sector which would be of value to the Australian community, particularly during the pandemic. It accepts however that she is currently working as a cleaner in the Canberra Hospital. The Tribunal accepts that the applicant and his partner are employable and have been employed in Australia, and plan to start a family in Australia.

23. The Tribunal gives these circumstances some weight in favour of not cancelling the visa.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

24. The Tribunal notes from the delegate’s decision record that the applicant cooperated with the Department, providing his contact details and communicating in relation to the s.107 notice.

25. The Tribunal also notes however the applicant has persisted in claiming, to the Tribunal in written submissions in March 2021, that he was employed as an accountant for Sydney Telecom, despite his own oral evidence that he was not undertaking the duties described in the reference letter, a copy of which he has provided to the Department. The Tribunal is of the view the applicant could have acknowledged at an earlier time that he was not undertaking the duties of an accountant. He continued to make this claim until questioned by the Tribunal about his employment. The Tribunal is concerned that it was not until his hearing that the applicant’s admitted incorrect information had been given when claiming he was an accountant for Sydney Telecom in the period July 2015 to April 2016. His only explanation for this was that the business had not succeeded as anticipated and so he could not perform the duties of an accountant as planned. The Tribunal is not satisfied the applicant has adequately explained why he has continued to provide incorrect information about his employment in that period and has not met his obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal is of the view this factor weighs in favour of cancelling the visa.

    Any other instances of non-compliance by the visa holder known to the Minister

26. The delegate records that there is no relevant information relating to this consideration. There is nothing before the Tribunal to indicate that there have been other instances of non-compliance by the applicant known to the Minister.

    The time that has elapsed since the non-compliance

27. The Form 80 and Form 1221 were lodged in April 2016 shortly after the applicant applied for the Subclass 190 Skilled - Nominated visa. Accordingly the non-compliance occurred about five years ago. The Tribunal does not consider a period of five years to be significant in these circumstances. The Tribunal notes the applicant was made aware of the non-compliance in October 2019, when he was issued with the s.107 notice, clearly indicating that he held the Subclass 190 visa obtained using incorrect information and therefore was liable for cancellation. Accordingly the Tribunal gives limited weight to this circumstance in favour of the applicant.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

28. The delegate recorded that there was no evidence before the Department indicating any breaches of the law. The applicant told the Tribunal that there had been no breaches of the law. The Tribunal is satisfied on the evidence before it that the applicant has not breached any law since the non-compliance.

    Any contribution made by the holder to the community

29. The applicant has provided evidence that he was the captain of the Canberra Nepalese Cricket Club from 2016 to 2018 and that he is actively involved in the club. The Tribunal accepts this evidence. It also accepts that his partner is now registered as an enrolled nurse and willing to become a frontline worker. The Tribunal also accepts the applicant and his partner have been working in Australia. The Tribunal gives this circumstance some weight in favour of not cancelling the visa.

    Any other relevant evidence or consideration

30. While the above factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

31. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the applicant being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. These factors are set out in the delegate’s decision, provided to the Tribunal by the applicant.

32. The Tribunal notes that cancellation of the applicant’s visa would result in him being unlawful and subject to detention only in circumstances where the applicant does not apply for another visa to remain lawfully in Australia or does not depart Australia before any visa held by him ceases. The Tribunal acknowledges that due to current travel restrictions, the applicant may not be able to depart Australia, however, it is satisfied the applicant would be able to apply for a bridging E visa which, if granted, would enable him to remain lawfully in Australia until such time he is able to depart. The Tribunal also notes that if the applicant’s visa is cancelled, he would be affected by s.48 of the Act and may not be able to make a valid application for a substantive visa in Australia unless permitted to do so by the Minister.

33. The Tribunal has also considered whether there would be consequential cancellations under s.140. The Tribunal acknowledges that cancellation of the applicant’s Subclass 190 visa would result in the consequential cancellation of his partner’s Subclass 190 visa. The applicant and his partner acknowledged at the hearing that they understood the partner’s visa would be cancelled consequentially. The Tribunal accepts that this impacts on their plans to remain in Australia, have a family, become citizens and undertake further study and the partner’s plan to work here as a nurse.  

1. In relation to any international obligations the Tribunal notes the applicant does not have any children. The applicant does not claim, and there is no evidence before the Tribunal to indicate, that he would be subjected to any form of harm or persecution upon return to Nepal. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case. The applicant has family in Nepal and, as his partner’s visa would be consequentially cancelled, the family unity obligations would not be breached as a result of the cancellation.

2. The Tribunal has taken into account the applicant’s claim that he is getting too old to return to Nepal and start again, however it is satisfied that at age 35 he will be able to return and re-establish himself. It notes his evidence that he continues to be in contact with his family who live in Kathmandu. It is satisfied he has skills and qualifications and will be able to secure employment with the support of his family. While the Tribunal acknowledges the applicant and his partner may experience some initial difficulties on returning to Nepal, it is satisfied they will be able re-establish themselves in their home country where they have family and speak to language, particularly given the skills and qualifications they have acquired in Australia.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant did not comply with s.101(b) of the Act because he wanted to achieve his desired migration outcome, permanent residence in Australia.

4. The Tribunal accepts the applicant and his partner have taken steps to remain permanently in Australia, such as the property purchase and establishing the handyman business. It accepts they have worked and studied in Australia, and that the applicant has contributed positively to his community, for example, by supporting his cricket team. It accepts there have not been other breaches or any criminal activity. It accepts the partner is willing to work on the frontline as a nurse. It accepts there will be challenges faced in returning to Nepal. These factors weigh in favour of not cancelling the visa.

5. However, the Tribunal places greater weight on the significance of the incorrect information provided, and that the applicant continuing to provide to the Tribunal incorrect information about his employment. The Tribunal has concluded that the decision to grant the visa was at least in part based on the incorrect information provided by the applicant. The Tribunal does not accept that applicant’s explanation for this; that it was the intention that he perform the duties of an accountant but this was not possible because of the failure of the business. The Tribunal is not satisfied the business Sydney Telecom was operating in Canberra or that he was employed by the business. The Tribunal is satisfied the breach was intentional, for the purpose of the applicant achieving his preferred migration outcome. It considers these factors weigh in favour of cancelling the visa and outweigh those in favour of not cancelling the visa.

6. The Tribunal is satisfied the applicant will be able to re-establish himself in Nepal. He will not be separated from his partner. The cancellation will not be in breach of Australia’s obligations and would not affect the interests of any children.

7. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances and evidence, as discussed above, the Tribunal concludes that the visa should be cancelled.

   DECISION

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

   Denise Connolly
   Member

   
   

   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.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   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.