Kukadia (Migration)

[2019] AATA 4527

Kukadia (Migration) [2019] AATA 4527 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kantilal Damji Kukadia
Mrs Jayshree Kantilal Kukadia
Mr Sagar Kantilal Kukadia
Mr Milan Kantilal Kukadia
Mr Akaash Kantilal Kukadia

CASE NUMBER:  1837491

DIBP REFERENCE(S):  BCC2015/15095105 BCC2017/2651280

MEMBER:John Cipolla

DATE:14 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 188 -  Business Innovation and Investment (Provisional) visa.

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

Statement made on 14 August 2019 at 11:51am

CATCHWORDS
MIGRATION – cancellation – Business Skills (Provisional) (Class EB) visa – Subclass 188 (Business Innovation and Investment (Provisional)) – ground for cancellation – bogus document – incorrect information in visa application – English language proficiency – education history – consideration of discretion – circumvent payment of second instalment visa charge – capacity to meet the essential criteria of visa – present circumstances of visa holder – contribution to the community – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 140
Migration Regulations 1994 (Cth), r 2.41; Schedule 2, cl 188.411

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the first named applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had provided a bogus document and incorrect information in an application for a Subclass 188 visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction, 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.

4. The applicants were represented in relation to the review by their registered migration agent.

5. 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

   BACKGROUND

6. The applicant is a national of Kenya.  The evidence before the Tribunal indicates that the applicant ran his own business in Kenya, Raiya Construction Ltd , a business whose main activities were in construction and renovation of domestic and commercial buildings. The evidence before the Tribunal indicates that the applicant had been involved in the business as Managing Director since 1993. The evidence indicates that the applicant through his business had accrued ownership of a large number of apartments for which he derived a substantial rental income. The evidence before the Tribunal indicates that the applicant is married with three sons.

7. The evidence before the Tribunal indicates that the applicant first arrived in Australia on 13 August 2014 as the holder of a Visitor visa. The evidence indicates that the applicant travelled from Kenya to Perth in Western Australia. Whilst the applicant held a Visitor visa he made a determination that the economic, social, housing, and educational opportunities that Australia offered were significant and he made a determination that he would explore options for migrating to Australia.

8. The evidence before the Tribunal indicates that the applicant lodged an application for a Subclass 188 Business Innovation and Investment visa on 26 May 2015 and that his wife and three children were included as secondary visa applicants.

9. The evidence before the Tribunal indicates that the Department assessed the applicant’s Subclass 188 visa application and determined that he met the relevant requirements for the grant of the visa. The evidence before the Tribunal indicates that the grant of a Subclass 188 visa requires an applicant to pay visa charges in instalments. The evidence indicates that the applicant paid the first instalment. The evidence indicates that the second instalment which is payable before the grant of the visa is predicated on whether or not a primary visa applicant or indeed a secondary visa applicant is assessed as having functional English. If a primary applicant or a secondary applicant, are assessed as not having functional English, a second instalment is payable that ranges between $4890 and $9795. If a primary or secondary applicant is deemed to have functional English then no second instalment charges payable. The Migration Regulations outline how an applicant is able to establish whether or not they meet the functional English requirement.

10. The evidence before the Tribunal indicates that on 28 November 2015 the applicant provided a progress report from the Barani Secondary School dated 3 September 1991 along with a letter from the school dated 13 November 2015.  This evidence pertained to the applicant’s wife Jayshree Jamnadas Pakhania having completed 4 years of secondary schooling in English. In addition to this on 8 December 2015 the applicant provided evidence that his wife had completed all years of her primary education at Sir Ali Bin Salim Primary School in English. Based on the provision of this information the Departmental delegate was satisfied that the applicant’s wife, a secondary visa applicant, met regulation 188.411 and was thus not required to pay the $4890 for the second instalment of the visa application charge as she was assessed as having functional English. The delegate went on to determine that the applicant and indeed the secondary applicants met all of the criteria relevant to the grant of a business innovation and investment visa and the visas were granted on 8 December 2015.

11. The evidence before the Tribunal indicates that on 26 October 2018 the applicant was sent, via email, a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 188 visa under Section 109 of the Migration Act 1958.

12. Recourse to the NOICC makes reference to the applicant’s visa history in Australia. The NOICC also makes reference to the application form submitted for the visa and makes reference to cl.188.411 which pertains to the circumstances applicable to the grant of the visa and requires that the applicant may be in or outside Australia when the visa is granted but must not be in immigration clearance and the second instalment of the visa application charge must be paid before the visa can be granted. The NOICC makes reference to the second instalment table pertaining to fees that are payable before the grant of the visa. The NOICC makes reference to the documents submitted by the applicant to establish that his wife had functional English, documents that were submitted to circumvent the payment of the second visa instalment fee. The NOICC indicates that integrity checks pertaining to these documents were undertaken through the Department’s Nairobi office and information was received that the progress report and letter were not valid and were forged documents. Based on this the delegate determined that the applicant provided incorrect information with regard to his wife having functional English in breach of Section 101(b) of the Migration Act. Further to this that the applicant had failed to comply with Section 103 of the Migration Act as he had presented a bogus document to the Department in support of the grant of his spouse’s visa. The NOICC gave the applicant an opportunity to address whether or not the grounds for cancellation had been made out and having regard to regulation 2.41 of the Migration Regulations whether or not the visa should be granted.

13. On 9 November 2018 the applicant’s legal representative provided a response to the NOICC. In the response the applicant’s representative notes that the applicant admitted to the provision of a bogus document in contravention of Section 103 of the Migration Act and that the provision of this document meant that he avoided the requirement of paying the second instalment fee for the visa namely an amount of $4890. The submission then goes on to address the relevant discretionary considerations as to whether or not the visa should be cancelled.

14. In this response the applicant’s representative noted that the correct information that should have been provided was that the applicant’s spouse, a secondary visa applicant, had never enrolled in or completed secondary education at the Barani School in Kenya. With regard to the content of a genuine document the submission concedes that there was no genuine document to show that the applicant’s wife met the functional English criterion. The submission further notes that it is not in dispute that the decision to grant the visa to the applicant’s spouse was based in part on the basis of a forged letter and progress report from the Barani Primary School ie bogus documents.

15. The submission notes that the circumstances in which the non-compliance occurred was that the applicant obtained bogus documents from Barani Secondary School in Kenya sometime during 2014-2015. That the applicant had been informed by his migration agent at the time that all secondary visa applicants aged over 18 were required to possess functional English or otherwise they would have to pay an additional visa application charge of $4870 per secondary applicant to the Department. The submission notes that out of convenience and a desire to avoid having to pay an additional visa application charge for his spouse the applicant decided to obtain false documents.

16. The submission goes on to state that the applicant believes that his spouse would have, in any event, satisfied the requirement of having functional English because she has the ability to converse, read and write in English without difficulty. The submission notes that this fact should be given some weight as one of two official languages in Kenya is English.

17. With regard to the applicant’s present circumstances the applicant’s representative noted that the applicant, his spouse, and their eldest son currently operated a franchise freight logistics business in Subiaco Western Australia. That the business was purchased for AUD$300,000 that the applicant was strongly committed to investing in Australia both in business and residential markets. The submission further noted that since the applicant purchased the business from the previous owner the business had been significantly turned around and had been successful. The applicant provided evidence that the sales generated from the business had increased by 23%, that positive reviews of the business had grown exponentially and that the applicant had been awarded franchisee of the year for 2018.

18. The submission noted that the applicant had three children, two of whom were adults. The submission noted that the applicant’s eldest child was employed on a full-time basis in the freight logistics business, the applicant’s second child was starting an engineering degree full-time at university in Western Australia and the applicant’s youngest child was undertaking secondary education in Western Australia.

19. With regard to the applicant’s subsequent behaviour the submission notes that since the applicant received the NOICC he had conceded to the non-compliance and that he was deeply apologetic for a grave mistake that he made that he was willing to pay the relevant visa instalment fee of $4890 if required. The submission noted that there were no other instances of non-compliance by either the primary or secondary visa applicants. The submission noted that the time that had elapsed since the non-compliance was approximately three years. The submission noted that there had been no other breaches of law by the visa applicant since the non-compliance. With regard to the applicant’s contribution to the community the submission noted that the applicant was an active member of the Rotary Club of Wanneroo and had been significantly involved with Rotary prior to arriving in Australia. Further to this that the applicant engaged in a variety of voluntary activities and contributed to a number of community causes through Rotary. The submission also noted that the applicant had become a prominent member of the local Indian religious community as both a volunteer and a financial donor. The submission noted that the applicant and his family were currently in the process of purchasing residential land for which they intended to build a family home.

20. The submission noted that the applicant’s son had recently taken on a position at his university as an academic peer, something that was only offered to the highest performing students. The submission addresses the consequences of the cancellation of the applicant’s visa to his family under Section 140 of the Migration Act. The submission also addresses the prospective negative impact of the applicant’s youngest son having to relocate to Kenya. The submission also addresses the mandatory legal consequences of cancellation of the applicant and his family member’s visa’s and the hardship that the family would face if the visas were cancelled.

21. On 20 December 2018 a delegate of the Department proceeded to cancel the applicant’s visa. The delegate determined that the ground cancellation existed and having regard to the relevant discretionary considerations that the visa should be cancelled.

22. The applicant lodged a review application with the Tribunal annexing a copy of the Departmental decision to the review application.

    REVIEW HEARING

23. The Tribunal conducted a review hearing on 9 August 2019. The applicant gave evidence via telephone from Kenya. The applicant’s son Sagar Kukadia gave evidence by telephone from Perth, Western Australia, and the applicant’s representative was connected to the hearing via telephone also from Perth, Western Australia.

24. At the outset of the review hearing the Tribunal went into comprehensive detail about the process of merits review, the respective issues in the review, the material that was before the Tribunal, namely the Departmental files pertaining to the application for Subclass 188 visa, the Departmental file pertaining to the cancellation of the applicant’s visa, along with the Tribunal’s review file. The Tribunal noted that it had regard to the information contained in these files and would be having regard to the evidence of the applicant and his son provided at the review hearing.

25. The applicant gave his name and date of birth. The Tribunal asked the applicant about his immigration history to Australia. The applicant stated that he first came to Australia in August 2014 is the holder of a Visitor visa, a visa that was valid for three months. The Tribunal asked the applicant what information he needed to provide in support of the visa application. The applicant stated that he advised the Department that he wanted to visit his brother-in-law who is resident in Western Australia. He advised that he had to provide bank statements pertaining to his financial situation in Kenya and documents pertaining to his property interests in Kenya.

26. The Tribunal asked the applicant whether it was during that visit that he formed the view that he would like to live permanently in Australia if that was possible. The applicant stated that whilst on this visit he was very impressed with Australia and formed the view that it would be a good place for his sons to continue their education and for him to establish a business. The applicant advised that on that visit he also travelled to Sydney and Melbourne but he determined that he would like to relocate to Perth in Western Australia because he liked the environment and the climate and he also had relatives in that state. The applicant stated that whilst he was in Australia on the visit he was introduced to a migration agent who provided him with advice about the various options for permanent migration and he was advised about a business innovation visa. The applicant stated that after he returned to Kenya he made a decision to apply for a business innovation visa.

27. The Tribunal asked the applicant what his understanding of the business innovation and investment visa was. The applicant stated that he was advised that he needed to meet specific criteria. That he needed to have a significant asset position, along with a successful business background in Kenya. The applicant stated that he was able to provide evidence of assets the equivalent of AUD $4,000,000.00. The applicant stated that the visa was granted on 8 December 2015. The applicant stated that he arrived in Australia with his family in March 2016. The applicant stated that he had three sons Akaash aged 14 who is currently in Kenya with the applicant, a son Milan age 24 who is currently with the applicant in Kenya and an elder son Sagar who was aged 25 and had remained in Australia.

28. The Tribunal noted that the evidence before it indicated that the applicant had returned to Kenya on 15 April 2019. The Tribunal asked the applicant why he had returned to Kenya. The applicant stated that after his subclass 188 visa was cancelled by the Department on 20 December 2018, he was issued with a bridging either visa and was advised that he did not have work rights. The applicant stated that as a consequence of this he was not able to continue to oversee his business in Subiaco. The Tribunal asked the applicant given his circumstances why he did not seek work rights on his bridging either visa. The applicant stated that he was told by his migration agent that because he had significant funds in his bank account that he would not be given work rights by the Department. The applicant stated that he was advised that unless he was able to establish financial hardship that work rights would not be granted. The Tribunal noted that the applicant had invested substantial funds in an Australian business that he had been successfully running up until the point of cancellation of his visa in December 2018. The evidence before the Tribunal indicated that the business had deteriorated since the applicant ceased to have ongoing oversight of the business after he lost work rights as a consequence of the cancellation of his visa. The Tribunal suggested that the Department may have been sympathetic to his circumstances particularly if his business employed Australian citizens or permanent residents. The applicant’s representative stated that it was her view that unless the applicant was able to establish financial hardship that he would not be granted work rights.

29. The Tribunal noted the evidence before it indicated that the applicant had conceded that he had provided bogus documents to the Department pertaining to his wife’s attendance at a secondary school in Kenya in order to establish that his wife had functional English, and to circumvent the payment of a second visa instalment charge of $4890. The Tribunal having regard to the applicant’s strong financial circumstances asked the applicant why he would go to such lengths to circumvent a $4890 payment. The Tribunal noted that this opened up questions about the credibility of his financial position. The applicant was invited to comment on this. The applicant stated that this was a serious error of judgement and that he made a mistake. The applicant stated that he had a good friend that worked in a secondary school who could assist him with the provision of the reference and that he was sorry for engaging in this conduct.

30. The Tribunal advised that based on the evidence before it the Tribunal was satisfied that the applicant was in breach of Section 101 and Section 103 of the Migration Act insofar as he had provided incorrect information and bogus documents in support of his subclass 188 visa. The Tribunal advised the applicant that given this finding it would now be proceeding to consider the relevant discretionary factors found in regulation 2.41 pertaining to whether or not the visa should be cancelled.

1. The Tribunal noted that the applicant provided incorrect information to the Tribunal as his spouse did not complete secondary education at the Barani Secondary School in Kenya. The applicant acknowledged this.

2. The Tribunal noted that with regard to the content of any genuine document, that the applicant had provided bogus documents to the Department during the processing of the visa application, namely documents pertaining to the payment of the second visa application charge. The applicant had provided evidence to the Department that his wife had functional English and that this was based on the fact that she had attended the Barani Secondary school in Kenya and that her tuition was provided in English. The Tribunal noted that it had been considered by the applicant that these documents were bogus and had been obtained in order to circumvent the payment of the second instalment visa charge of $4890. The applicant conceded that this was the case.

3. The Tribunal asked the applicant about his present circumstances. The applicant advised that when he arrived in Australia in December 2016 he started looking for businesses in the construction industry that were for sale. The applicant stated that the businesses that he scrutinised at this time did not look promising. Because of a downturn in the Australian economy in the building and housing sector which had particularly affected Western Australia, the applicant stated that he did not see value in the establishment of a construction business. The applicant stated that he looked at an alternative way to sustain the business innovation visa and that he finally decided to invest substantial funds in a Pack and Send freight business located in Subiaco in Perth. The applicant stated that the business was a franchise and that he believed that he had the capacity to run the franchise in Subiaco successfully. The applicant stated that he had looked at some other businesses and undertaken due diligence checks of those businesses, however, the Subiaco business looked like the best option. The Tribunal asked the applicant what other businesses he had explored and he advised, a forklift business and signage business. The Tribunal asked the applicant how much money he expended on purchasing the franchise of the pack and send business and he advised AUD$300,000.00.

4. The applicant stated that he had made a very big blunder with the provision of the bogus document. The applicant stated that he had three sons who along with his wife had settled very well in Perth. He advised that his eldest son Sagar was integral in assisting in the running of the business the applicant advised that he is middle son Milan had been studying a civil engineering course at Curtin University in Perth. He advised that his youngest son Akaash was starting at secondary school in Perth and doing very well scholastically. The applicant advised that in the time that he had taken over the business in Subiaco he had turned the business around and increased profitability substantially. Indeed the applicant advised the Tribunal that he is Pack and Send business in Subiaco won ‘Newcomer of the Year’ 2018. The applicant stated that this was attributable to a range of factors including greater promotion of the business, harnessing very positive online reviews and ensuring sound customer service practices.

5. The Tribunal noted that the applicant had returned to Kenya on 15 April 2019. The Tribunal asked the applicant why he had made the decision to relocate himself, his wife and his two younger sons back to Kenya and enquired about the state of the Subiaco business. The Tribunal asked whether the business had been liquidated. The applicant stated that after his visa was cancelled in December 2018 and he was not given work rights, that he was not able to be actively involved in the business nor was his son Sagar as a result of the consequential cancellation of his visa. The applicant stated that he attempted to have an acting manager oversee the business whilst he was unable to work but the business started going backwards as a consequence of his lack of ability to be involved in the running of the business. The applicant stated that consequently he had been given no option other than to put the business up for sale and was currently on the market for this AUD$465,000.00.

6. The Tribunal noted that the evidence before it indicated that the applicant had substantial real estate assets in Kenya. The Tribunal enquired about these assets. The applicant stated that he owned a number of apartments in Malindi a coastal town of Kenya approximately 600 km from Nairobi. The applicant stated that he owned between 80 and 90 apartments of varying size and that the apartments were rented out and attracted annual rentals of around AUD$11,000 per month.  The applicant estimated that the value of the apartments would be AUD $3,000,000.00.

7. The Tribunal enquired of the applicant whether the funds accrued from apartment rentals were more than sufficient to survive in Kenya. The applicant stated that he had to pay school fees for his youngest son, and that he had applied to a range of universities for his son Milan to continue his engineering studies but to date his son had not been able to be given credit for past learning undertaken at Curtin University in Perth at institutions in the United States and New Zealand.

8. The Tribunal asked the applicant whether he had any further assets in Kenya apart from the apartments and he advised that he had no other assets. The applicant stated that he returned to Kenya in April 2019 because of the fact that he was not able to work in Australia as a consequence of his visa cancellation and the applicant stated that he had no other option but to return to Kenya awaiting the outcome of merits review. The applicant further stated that after the cancellation of his visa in December 2018 he was extremely mentally stressed and that his health deteriorated. The applicant formed the view that if he was to return to Kenya to busy himself with his assets in that country to keep his mind busy it may circumvent depression. The applicant stated that since he returned to Malindi that the construction industry had slowed down significantly and that there were very limited tourists and very limited interest in construction work. The applicant reiterated his earlier evidence that since the cancellation of his visa his franchise business in Subiaco had dropped substantially.

9. The Tribunal asked the applicant why his eldest son remained in Australia after the rest of the family relocated back to Kenya in April 2019. The applicant stated that his eldest son Sagar held a Bridging E visa in Australia and that he had no work rights. The applicant stated that he is eldest son had remained in Australia in the hope that the visa cancellation would be set aside. The Tribunal asked the applicant how his eldest son was surviving financially in Perth he advised that his son had substantial savings from when he was working in the family business in Subiaco and in addition to this the applicant had forwarded money to him for his upkeep. He further advised that his eldest son was staying with family friends in Perth who were providing full board and lodging at no cost.

10. The applicant advised the Tribunal that he hoped that his visa would be reinstated and he hoped to be able to return to Australia to attempt to re-establish a business. The applicant stated that he would explore options for all types of business visas available to him.

11. The Tribunal asked the applicant about his wife’s current circumstances. The applicant advised that his wife is undertaking home duties in Kenya and that her health was not great as a result of the cancellation of the family’s visas and that she also needed knee replacement surgery. The applicant stated that the expertise of orthopaedic surgeons in Kenya was poor compared to Australia and that she would not wish to undertake the surgery in Kenya.

12. The Tribunal asked the applicant why he believed his visa should not be cancelled. The applicant stated that he was relying on the submission made by his representative to the department in response to the NOICC and to the Tribunal at review. The applicant asked the Tribunal to take into consideration the fact that the applicant had made a significant investment in an Australian business as a franchisee and that since investing the business had turned around substantially and was making significant profit prior to the cancellation of his visa. The applicant stated that increase profitability lead to more tax being paid to the Australian government which was beneficial to Australia. The applicant advised that he had been a member of Rotary for many years and that he had been involved in charitable and voluntary work in that role. The applicant stated that he made donations to a number of charities in both Australia and Kenya and had continued this altruism since the cancellation of his visa. The applicant stated that his youngest son Akaash had been made a prefect at his school in Western Australia, that his middle son Milan was achieving excellent results in his civil engineering course at Curtin University and that his eldest son Sagar had worked extremely well in the franchise business in Subiaco and had help the applicant grow the business. The applicant stated as a consequence of their success with the first franchise they were offered a second franchise that after looking at the books pertaining to that franchise turned that offer down. The applicant submitted that because of his business acumen and skills he was confident that he could turn a business around making it profitable. The applicant stated that he had plans to grow the existing franchise business to make it a global player. The applicant stated that from the time that he took over the Subiaco business reviews of the business on the Internet increase substantially with an average 4.5 out of 5 star review.  The applicant stated that he had purchased residential land in Perth with a view to building a family home and that this would make a contribution to the building industry in Western Australia. The applicant reiterated that his wife had ongoing health issues needing a knee replacement and did not believe that she could get the surgery done effectively in Kenya.

13. The Tribunal noted that the provision of a bogus document substantially impacted on the applicant’s credibility and invited the applicant to comment on this. The applicant stated that he believes that his entire credibility should not be impugned for one stupid action. The applicant stated that apart from the provision of a bogus document to circumvent the payment of a second visa charge he had followed all requirements pertaining to the grant of the visa. The applicant stated that he and his family had good intentions in Perth and in Australia. He advised that their business had made a contribution to the Western Australian community and that his membership of Rotary over a 20 year period that he continued in Australia had also made a contribution to the community. The applicant stated that in the time that he and his family had resided in Australia that they had been law-abiding citizens and had not broken any laws.

14. The Tribunal took evidence from the applicant’s son Sagar. Tribunal asked the witness about the impact of the visa cancellation on him. The witness stated that he was just starting out in life and that he and his father worked very long hours in the franchise business to build it up and as a result of the cancellation of the visa in December 2018 respectively 2 ½ years of life had been lost. The witness stated it would be difficult to get back on his feet and difficult to settle down after the calamitous effects of the cancellation.

15. The Tribunal asked the witness whether he had any plans for the future and he advised not at the moment that he was awaiting the outcome of the cancellation decision at merits review. The Tribunal asked the witness what impact the cancellation had on other family members. The witness stated that mentally it had caused a very massive hit particularly to his father. He advised that his father had returned to Kenya because he was precluded from working in Australia, this led to the franchise business going backwards and that his father was mentally depressed and his mother was worrying about the education outcomes for his two younger brothers. The witness stated that the Kenyan education system was not great, that his brother Milan was struggling to get into another university and to receive credits for studies undertaken at Curtin University in Perth. He advised that his younger brother was currently attending a school in Kenya but that the quality of the education system was inferior to that in Australia. 

16. The Tribunal asked the witness why he did not return with the rest of his family to Kenya. The witness stated that someone was needed to be in Australia to liaise with the applicant’s legal representative. The Tribunal asked the witness how he was surviving in Australia given that he was the subject of abridging the visa with no work rights and the witness advised that he was living off savings and also staying with family friends who are providing him with full board and lodging. The Tribunal asked the witness whether there was any further evidence he wished to provide. The witness stated that he hoped that the Tribunal could consider the merits of the case very carefully.

17. The Tribunal deferred once again to the applicant and asked whether there was any further evidence he wished to provide. The applicant stated that he was very apologetic for what he had done and that he kindly and humbly requested to have his visa and his family’s visas reinstated. The applicant stated that his wife had ongoing problems with her knees and required surgery and was reluctant to engage in surgery in Kenya.

18. The Tribunal deferred to the applicant’s representative. The Tribunal asked the applicant’s representative whether there was anything that she wished to add. The applicant’s representative stated that the Tribunal summed up the family situation when it described the provision of a bogus document having a cataclysmic effect on the family. The applicant’s representative acknowledged that the provision of a bogus document was very serious however that the snowball effect on the family had been disproportionate to the offence. The applicant’s representative advised that the applicant’s wife did in fact speak English. The applicant’s representative advised that there had been a substantial effect on family members of the visa cancellation. There had been setbacks to the applicant’s two younger sons the middle son Milan had been successfully pursuing tertiary studies in Australia and the younger son had been successfully pursuing high school studies. This had all been brought to an abrupt end as a result of the actions of the applicant. The applicant’s representative asked that the Tribunal to carefully consider the relevant factors and exercise discretion in favour of the applicant. The hearing concluded.

19. 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.

20. 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.

21. 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?

22. 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 section 101 of the Migration Act and section 103 of the Migration Act on the basis that the applicant when completing the visa application was asked whether his wife had functional English or had undergone and he advised that she did. The delegate also noted that at the time the applicant was due to pay the secondary visa application charge, a charge that is payable before the grant of the visa and is only payable if a secondary visa applicant does not have functional English he submitted a bogus document. This document purportedly from Barani Secondary School in Kenya indicated that the applicant’s wife had completed 4 years of secondary studies at the school with tuition conducted in English. This document was only provided to circumvent the payment of the secondary visa charge of AUD$4890. The delegate concluded on this basis that incorrect information had been provided in breach of s.101 of the Migration Act and a bogus document in breach of s.103 of the Migration Act.

23. With regard to compliance with s.101 the evidence before the Tribunal indicates that the applicant provided incorrect information to the Department with regard to his wife’s functional English language ability and in order to circumvent a secondary visa charge provided a bogus document to support a contention that she did have functional English, in breach of s.103 of the Migration Act.

24. For these reasons, the Tribunal finds that there was non-compliance with s.101 and s.103 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

25. 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).

26. 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. They are:

    ·      the correct information

    ·     the content of the genuine document (if any)

    ·     the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

    ·     the circumstances in which the non-compliance occurred

    ·     the present circumstances of the visa holder

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

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

    ·     the time that has elapsed since the non-compliance

    ·     any breaches of the law since the non-compliance and the seriousness of those breaches

    ·     any contribution made by the holder to the community.

27. While these 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.

1. The Tribunal has had regard to the substantial evidence before it with regard to whether the applicant’s visa should be cancelled pursuant to s.109(1) of the Migration Act.

   The correct information

   The evidence before the Tribunal indicates that the correct information is that at the time of applying for the Subclass 188 visa the applicants wife (a secondary visa applicant) had not attended the Barani Secondary school for 4 years, a school where the tuition was conducted in English. 

   The content of the genuine document

2. The Tribunal finds that the applicant provided bogus documents namely a letter from the Barani Secondary School dated 13 November 2015 and a progress report dated 3 September 1991 indicating that the applicants wife had attended the school for 4 years and undertook her tuition in English.  These documents were bogus and had been acquired to circumvent the payment of a secondary visa charge for the secondary visa applicant Jayshree Jamnadas Pankhania totalling $4890, which is payable before the grant of the visa.

   The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document

3. The evidence before the Tribunal indicates that the applicant met the relevant primary criteria for the grant of a Subclass 188 visa.  The evidence indicates that the basis for the cancellation of this visa ie the provision of incorrect information and bogus documents pertained to a secondary visa applicant (the applicant’s wife) in order to avoid the payment of a secondary visa charge instalment of $4890.  The documents in issue had no impact on the capacity of the applicant to meet the essential criteria for the grant of the visa.  The Tribunal places significant weight on this consideration in favour of not cancelling the applicant’s visa.

   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

4. The evidence before the Tribunal indicates that the applicant lodged an application for a Subclass 188 Business Innovation and Investment visa on 26 May 2015 an application that was approved by the Department at primary stage on 8 December 2015.

5. The evidence before the Tribunal indicates that the applicant was able to satisfy the relevant primary criteria for the grant of the visa.

6. The evidence before the Tribunal indicates that the decision to grant the applicant a Subclass 188 visa was not impacted upon by the provision of a bogus document submitted by the applicant.  As has been noted the provision of the bogus documents from Barani Secondary School were provided to circumvent the payment of the second instalment visa charge of $4890 and had no bearing on the outcome of the application.

7. Having regard to these factors I give this consideration weight in not cancelling the applicant’s visa.

   The circumstances in which the non-compliance arose

8. The evidence before the Tribunal indicates that the grounds for cancellation of the applicant’s visa arose as a consequence of him providing incorrect information and bogus documents in relation to his wife’s English language ability. This incorrect information and the bogus documents were provided to circumvent payment of the second instalment visa charge prior to the grant of the visa an amount of $4890.

9. The applicant has since offered to pay the relevant second visa instalment charge of $4890.

10. The Tribunal gives this consideration no weight in the applicant’s favour.

    The present circumstances of the visa holder

11. The evidence before the Tribunal indicates that the applicant returned to Kenya with his wife and two of his sons Milan and Akaash on 15 April 2019 as the holder of a Bridging E visa.  The applicant provided evidence that after his Subclass 188 visa was cancelled in December 2018 he was issued with a Bridging E visa without work rights.  The applicant’s representative advised the applicant that it was futile applying for work rights with the Department as the grant of work rights was contingent on financial need and because of the applicant’s asset position the applicant’s representative advised that work rights would not be granted.  This was never tested. The applicant gave evidence that as a consequence of him not being able to work his Subiaco business had to be put into the hands of a caretaker and as a consequence the business which he had managed to return to profitability began to falter. The evidence of the applicant is that as a consequence of this he currently has the business up for sale in an attempt to recoup some of the monies that he had invested in the business and on the basis that the applicant was uncertain about how long it would take for his matter to be heard at merits review and for a decision to be finalised.

12. The evidence before the Tribunal indicates that the applicant owns a substantial portfolio of apartments in Malindi in Kenya for which he derives income of approximately AUD$11,000.00 per month.  The applicant estimated that the current value of these apartments was around AUD$3,000,000.00. The evidence before the Tribunal indicates that the applicant since returning to Kenya has been overseeing his property portfolio and attempting to obtain work in the construction sector which he described at review hearing as being challenging and depressed. He has found no construction work to date.

13. The evidence before the Tribunal indicates that the applicant’s son Milan had been studying towards a Bachelor of Civil Engineering at Curtin University in Western Australia. Since the cancellation of the applicant’s visa his son ceased studying. The evidence before the Tribunal indicates that Milan returned to Kenya with the applicant and his mother and younger brother. The evidence before the Tribunal indicates that the applicant has been attempting to find a university in either the United States or in New Zealand that would accept Milan as an overseas student so that he can complete his studies. The applicant’s evidence to the Tribunal in respect of the study undertaken in Australia was that overseas institutions approached thus far were not willing to give any credit for prior learning.

14. The evidence before the Tribunal indicates that the applicant’s youngest son Akaash had been studying at a high school in Perth and had been making successful academic progress and had been selected to be a prefect. The evidence before the Tribunal indicates that since the families returned to Kenya, Akaash has resumed studies, but has struggled with the differential between the Australian education system and the Kenyan education system, with the applicant advising that the Kenyan education system was substantially inferior to that of Australia.

15. The evidence before the Tribunal indicates that the applicant’s wife upon returning to Kenya has resumed home duties.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act; any other instances of non-compliance by the visa holder known to the Minister

16. Apart from the provision of bogus documents pertaining to the second instalment of the visa charge and consequently incorrect information pertaining to his wife’s English language ability, there is no evidence before the Tribunal pertaining to other instances of non-compliance by the visa holder.  The applicant has contended that his wife does in fact have functional English and this was confirmed at the review hearing before the Tribunal with the applicant’s representative advising that the applicant’s wife was willing and able to give evidence to the Tribunal in English without recourse to an interpreter.

17. There is no information before the Tribunal of any adverse subsequent behaviour or any other instances of non-compliance noted to the Tribunal.

    The time that has elapsed since the non-compliance

18. The applicant provided incorrect information and bogus documents in May 2015 more than 4 years ago.

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

19. There is no evidence before the Tribunal of any breaches of law since the non-compliance.

    Any contribution made by the holder to the community

20. The evidence before the Tribunal indicates that the applicant is a long-standing member of Rotary and that after arriving in Australia he became an active volunteer at the Rotary Club of Wanneroo in Western Australia. The evidence before the Tribunal indicates that the applicant has been actively involved in events for the Jalaram Mandal of Western Australia. The evidence before the Tribunal indicates that the applicant has also been engaged in voluntary work with Vaishnava Sangh of Western Australia.

21. The applicant has provided evidence that when he purchased the Subiaco franchise business, which is a pack and send business that under his ownership profitability in the business turned around considerably.  Evidence corroborative of this has been provided to both the Department and the Tribunal on review indicating that the applicant was awarded franchisee of the year in 2018. The applicant’s representative submits that the increased profitability of the business has led to greater revenues which provide economic benefits to Australia. Further to this that the applicant intends to continue to invest and explore business opportunities in Australia.

22. 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. However having given careful consideration to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 188 Business Innovation and Investment (Provisional) visa.

24. The Tribunal has no jurisdiction with respect to the other applicants.

    John Cipolla
    Senior 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.

    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.