Patel (Migration)

[2023] AATA 3932

Patel (Migration) [2023] AATA 3932 (19 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Niravkumar Kishorbhai Patel
Mrs Tejaswini Niravkumar Patel
Master Rooshab Nirav Patel
Master Poorab Nirav Patel

REPRESENTATIVE:  Mr Navjot Kailay (MARN: 1790701)

CASE NUMBER:  2017214

HOME AFFAIRS REFERENCE(S):          BCC2018/160096

MEMBER:Antonio Dronjic

DATE:19 October 2023

PLACE OF DECISION:  Melbourne

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

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

·The Tribunal does not have jurisdiction in respect of the third named applicant.

Statement made on 19 October 2023 at 4:58pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled – Regional) – false or misleading information and bogus documents given in relation to visa application – work in specified regional area while holding previous visa – first applicant husband’s claimed employment in second applicant wife’s sole trader business – reference letter, payslips and PAYG statements – own part-time business with incomplete records – compelling or compassionate reasons to waive – current employment and skilled labour shortages – members of family unit – older child now Australian citizen and application withdrawn – best interests of child – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 376
Migration Regulations 1994 (Cth), Schedule 2, cls 887.213, 887.223, Schedule 4, criterion 4020(1)(a), (5)

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Bushell v MIAC [2008] FMCA 1193
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sharma v MIAC [2013] FCCA 1280
Sran v MIBP [2014] FCCA 37
Talukder v MIAC [2009] FMCA 223
Trivedi v MIBP [2014] FCAFC 42

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 10 January 2018. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Public Interest Criterion (PIC) 4020(2) for the purposes of cl 887.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. According to the primary decision record submitted by the applicant with his review application, the applicant was refused a visa because the delegate found the applicant has given to the Minister information that is false and misleading in relation to his claim of having worked full-time in a specified regional area for a total of at least one year as the holder of one or more of the visas mentioned in cl 887.212.

4. In particular, the delegate found that work reference letters, payslips and PAYG statements related to the applicant’s employment with Design Crave and Auto Spa Hand Car Wash were false and misleading information.

5. The applicants sought review of the delegate’s decision on 28 November 2020. They were represented in relation to the review by their registered migration agent.

6. On 7 September 2023, the Tribunal wrote to the applicants advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a hearing on 12 October 2023.

7. On 5 October 2023, the Tribunal received a completed and signed withdrawal form related to the application lodged by the third named applicant, Master Rooshab Nirav Patel.

8. On the same day, the Tribunal received the applicants’ submissions and documentary evidence in support of the review application. The list of documents submitted is attached to this decision record as Attachment A.

9. Mr Patel appeared before the Tribunal on 12 October 2023 to give evidence and present arguments. The applicants were represented in relation to the review.

10. The Tribunal explained to the applicant the requirements of PIC 4020(1), PIC 4020(4), PIC 4020(5), cl 887.213 and cl 887.223. The Tribunal further explained to the applicant that the Department file included a non-disclosure certificate issued on 23 April 2023 under s 376 of the Act. The certificate provides that disclosure of the specified documents would be contrary to the public interest as it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. In April 2023, the Tribunal invited the applicants’ comments on the question of the validity of this certificate. The Tribunal did not receive any response from the applicants.

11. The Tribunal explained to the applicant the type of documents covered by the certificate and noted that most information contained in those documents relates to the Department’s internal procedures and was revealed to the applicant in the primary decision record.

12. Mr Patel is a national of India, married, and has two underage children. His older son recently become an Australian citizen and the Tribunal acknowledged that the applicant withdrew the review application related to his son Master Rooshab Nirav Patel.

13. The applicant and his family are currently renting a home in Lara, Victoria. Prior to this, they lived at Corio, Victoria. At home the family communicate in the Hindi language. The applicant’s sister is an Australian citizen, but Mr Patel stated in his evidence that he does not have much contact with her. His parents live in India. Mrs Patel’s two siblings and parents live in India.

14. Both Mr and Mrs Patel completed tertiary education in India. The applicant completed a Bachelor of Mechanical Engineering and his spouse completed a Bachelor of Interior Design. Both worked in India for approximately 2 years in their respective occupations. They do not own property in India under their names.

15. The applicant first arrived in Australia in January 2011 as a holder of a Student visa. By 2013, he had completed a master’s in Mechanical Engineering in Australia. On 18 March 2015, he was granted a Subclass 489 visa which remained valid until 18 March 2019.

16. Mr Patel is currently employed as a full-time mechanical engineer with Crusader Caravans. He commenced employment at this business in 2021. Mrs Patel is still operating her own business ‘Design Crave’ from her residential address in Lara. She provides bookkeeping services to 5 Australian businesses. She is the only employee of this business.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

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

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

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

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

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

23. The concept of ‘no evidence’ in PIC 4020(1) is not defined in the legislation. However, the Tribunal notes that in Bushell v Minister for Immigration and Citizenship & Anor [2008] FMCA 1193, Scarlett FM found there was jurisdictional error in a finding by the Tribunal (differently constituted) that there was ‘no evidence’ in circumstances where there was some evidence, albeit relatively slight, that supported the applicant’s claim. Accordingly, the Court held that in such a situation, it was not correct for the Tribunal to say there was no evidence.

24. The Tribunal notes that in Talukder v MIAC & Anor [2009] FMCA 223 (Talukder’s case) Driver FM found that the word ‘evidence’ requires an assessment of the quality of the evidence being relied on by the Tribunal before finding whether an applicant fails to satisfy the criterion. The Court stated that the use of the word ‘evidence’ in cl 880.224 (as it was prior to 2 April 2011):

    establishes that the clause requires something more than mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.[1] [emphasis added]

    [1] [2009] FMCA 223 at [20].

25. This approach was endorsed in Sharma v Minister for Immigration and Multicultural Affairs and Citizenship[2] (Sharma’s case) where the Court expressly considered the meaning of ‘evidence’ in the context of PIC 4020. Specifically, the Court in Sharma’s case held that the word ‘evidence’ is used to impose a requirement that whatever facts are conveyed by the material relied upon to establish that information given in connection with the application for a visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion.

    [2] [2013] FCCA 1280 (Judge Manousaridis, 6 September 2013) at [33]–[37].

26. Further, in Sran v Minister for Immigration and Border Protection[3] the Court held that what a third party may have done in other cases could not:

    be a basis for establishing such a serious matter as fraud in the current case. While the circumstances may be “suspicious”, it is evidence about the applicant’s case that is necessary, not simply the drawing of inferences from the circumstances in other cases.

    [3] [2014] FCCA 37 (Judge Nicholls, 17 January 2014) at [71].

27. As such, the Tribunal must make an assessment as to whether there is evidence that is sufficiently probative to lead to a conclusion that the information given was a bogus document or false or misleading in a material particular.

28. It is not disputed that, in support of his visa application, the applicant provided work reference letters, payslips and PAYG statements related to his employment with Design Crave, the business registered and operated by his wife. According to the applicant’s evidence, this business provided bookkeeping, graphic design, and IT services to other businesses.

29. When questioned what his job was at Design Crave, considering his educational background and his evidence that the business provided bookkeeping and limited IT services, the applicant stated that his job was to visit clients to determine if their software programs needed to be optimised. The Tribunal observed that the applicant holds qualifications in mechanical engineering and not in IT or bookkeeping. The applicant stated that at Design Crave he was also working as a graphic designer.

30. The Tribunal enquired if the applicant holds any qualifications relevant to the occupation of graphic designer, and the applicant gave evidence that in India, he completed a professional Diploma in Graphic Design.

31. The applicant stated in his evidence that, during the relevant period from 18 March 2015 to 10 January 2018, and in addition to being employed at Design Crave, he was operating his own cleaning business ‘Corio Cleaners’ registered in September 2015. The business was not registered for GST.

32. The applicant stated that, between June 2015 and December 2018, Corio Cleaners were subcontracted by Auto Spa Hand Car Wash (Auto Spa) to provide car cleaning services at Rex Gorell car dealership in Geelong. He reiterated that he was never employed by Auto Spa.

33. The Tribunal noted that the applicant provided a document showing a list of invoices issued to Auto Spa between September 2015 and March 2017. When questioned, the applicant stated that he is unable to provide copies of those invoices or produce a record of hours worked at the dealership in Geelong. He claims that he worked between 8 and 12 hours per week at this dealership and that his hourly rate was between $20 and $30.

34. The Tribunal considered a copy of the contract between the applicant an Auto Spa dated 27 September 2015 and noted that the contract does not specify the type of employment, hours to be worked by the applicant or the hourly rate of pay.

35. The Tribunal also considered if the payments made to the applicant’s business transaction account correlate with the payments indicated on the document showing a list of invoices issued to Auto Spa between September 2015 and March 2017 and noted that the entries do not correlate. The applicant conceded this to be the case.

36. The Tribunal noted that the applicant in his submissions conceded that with his visa application he submitted documents containing conflicting information and discrepancies. The explanation provided was that his wife was running a small-scale business, that she drafted all the accounting work including payslips and PAYG summaries herself and used the wrong tools in the preparation of those documents.

37. The Tribunal indicated that it finds it difficult to accept this explanation, considering that from the inception of her business, she was providing bookkeeping services to other Australian businesses.

38. The Tribunal observed that the applicant provided amended payslips in his response to the Department’s letter of 17 March 2020 and that those payslips show working hours to be significantly reduced and the hourly rate increased to match the minimum hourly rate of pay during the relevant period.

39. The Tribunal considered payments made to the applicant’s bank account. When the Tribunal cross‑referenced the payslips with bank statements provided, it noted that these bank statements do not show any deposits into the bank account with the net dollar amount as shown on the payslips. The applicant conceded this to be the case.

40. The Tribunal enquired why the majority of cash and purchase transactions recorded on the applicant’s business transaction account were made in the area that is not even close to the place of his business and residence. The applicant gave evidence that he gave his bank card to his friend, and his friend was the one making those transactions. When the Tribunal asked the applicant to provide his friend’s name and contact number, he refused to do so.

41. The Tribunal confirmed with the applicant that he had read and understood the written submissions provided by his representative. The Tribunal noted that in his submissions, the applicant’s representative addressed waiver provisions and asked the applicant if there are any other circumstances (apart from those stated in the representative’s submissions) that he would like to bring to the Tribunal’s attention. He stated that he relies on his representative’s written submissions and that there is nothing else he would like to bring to the Tribunal’s attention.

42. The Tribunal accepts that the applicant registered his own cleaning business Corio Cleaners in September 2015. The Tribunal further accepts that he may have done some contracting work for Auto Spa between September 2015 and December 2018 at Rex Gorell car dealership in Geelong. However, without the applicant being able to provide invoices rendered to Auto Spa or financial statements for Corio Cleaners, the Tribunal is unable to determine how long the applicant worked as a subcontractor for this business or how much he was paid for his work.

43. In addition, the Tribunal found, and the applicant conceded in his evidence, that the claimed payments made to the applicant’s business transaction account by Auto Spa do not correlate with the payments indicated on the document showing a list of invoices issued to this business between September 2015 and March 2017. Finally, the Tribunal has serious concerns related to the contract between the applicant and Auto Spa provided with the visa application as this document does not state the hours of work or the rate of the applicant’s pay.

44. Based on the evidence before it, the Tribunal finds that the work reference letter from Design Crave dated 20 November 2017, payslips issued by design Crave and PAYG statements related to the applicant’s employment at Design Crave submitted by the applicant with his visa application contain a false and misleading statement that the applicant worked full‑time in a specified regional area for a total of at least one year during the period from 18 March 2015 to 10 January 2018. It is unclear from the evidence presented what type of work he was doing, whether he worked on a full-time basis or how much was he paid for this work in a business owned by his wife. The applicant conceded in his evidence that payslips, PAYG statements and ATO tax assessment notices initially submitted to the Department contain inaccurate information. The Tribunal has serious concerns whether the applicant worked at this business at all.

1. The Tribunal finds that the information was false or misleading at the time it was given and relevant to the criteria it may consider when deciding on an application whether or not the decision is made because of that information. The information is relevant in a material particular to the applicant’s claim that he worked full-time in a specified regional area for a total of at least one year as the holder of a Subclass 489 visa as prescribed in cl 887.213.

2. The information provided in the Design Crave work reference letter dated 20 November 2017 was purposefully false as the evidence revealed that the applicant did not work at this business as claimed in the reference letter.

3. As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal, or a relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to his application for a Subclass 190 visa. Accordingly, the Tribunal finds that the applicant does not meet the requirements of PIC 4020(1)(a).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

4. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA).

5. There is no evidence before the Tribunal that the applicant and each member of the family unit have been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made to the present. Therefore, PIC 4020(2) is met.

   Should the requirements of PIC 4020(1) or (2) be waived?

6. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision maker must first be satisfied that there are such circumstances and then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

7. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

8. In deciding whether to waive PIC 4020(2), the Tribunal did not consider how its decision will affect the applicants as only the circumstances affecting Australia, Australian citizens or permanent residents or eligible New Zealand citizens are relevant for the Tribunal’s consideration of PIC 4020(4). Although the Tribunal is not bound by policy, it has had regard to the elements emphasised in PAM3 in terms of the exercise of discretion.

9. In his submissions of 5 October 2023, the applicants’ representative stated that the applicant’s son Master Rooshab Nirav Patel became an Australian citizen. The child was born in Australia on [Date] and has been living in Australia since his birth.

10. It was submitted that Master Patel considers Australia his home and that he would suffer emotional trauma, cultural shock, educational disruption and social isolation if his parents and sibling are not permitted to remain in Australia. It was further submitted that forced relocation can lead to various psychological issues, including anxiety, depression and behavioural problems, and can have long-term consequences on the child’s mental and emotional wellbeing.

11. The representative invited the Tribunal to consider the best interests of the Australian citizen child and ‘prioritise his wellbeing in any decision making process, taking into account his emotional, psychological, and social needs’.

12. Based on the evidence before it, the Tribunal accepts that the applicant’s son is an Australian citizen. The Tribunal accepts that potential removal of his parents and sibling from Australia would have an adverse impact on the child’s mental and emotional wellbeing.

13. The applicant’s representative submitted that the applicant’s wife is operating a profitable small business in Lara, Victoria, which is listed as a specified regional area.

14. The applicants’ representative reiterated that the applicant has completed bachelor’s and master’s degrees in Mechanical Engineering and that he is and has been employed as a full‑time mechanical engineer at Crusader Caravans since April 2020. The applicant submitted a letter from the director of Crusader Caravans, Mr Serge Valentino, dated 5 October 2023, in which he attested to the applicant’s skills and explained why the business will be adversely affected if the applicant is no longer able to continue with his employment.

15. The applicants’ representative submitted that it is very difficult to find the replacement for a trusted and skilful employee, as Australia is facing an extreme labour shortage of mechanical engineers.

16. Based on the evidence before it, the Tribunal is satisfied that both the applicant and his wife possess a set of skills that are highly sought after in Australia, and that, if they are not granted the visa, the Australian businesses would be adversely affected and miss out on a significant benefit that they would be able to bring to Australia.

17. The Tribunal is satisfied that the claims and evidence before it, on a cumulative basis, constitute compelling circumstances that affect the interests of Australia and/or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that would justify the granting of a Subclass 887 visa to the applicant.

18. Therefore, the Tribunal finds that the requirements of PIC 4020(2) should be waived.

    Has the applicant satisfied the identity requirements?

19. PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity. Having regard to the applicant’s passport located on the Department’s file, the Tribunal is satisfied as to the applicant’s identity. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

20. PIC 4020(2B) requires that neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

21. There is no evidence before the Tribunal that the applicant or members of his family unit have been refused a visa because of a failure to satisfy identity requirements during the relevant period. Therefore, the applicant meets PIC 4020(2B).

22. Based on the above, the applicant satisfies PIC 4020 for the purposes of cl 887.223.

    DECISION

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

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

    ·The Tribunal does not have jurisdiction in respect of the third named applicant.

    Antonio Dronjic
    Member

    ATTACHMENT A

    1.Submission explaining the applicant’s current and previous circumstances

    2.Copy of the applicant’s eldest son’s Australian Passport

    3.Reference letter by the Director of Crusader Caravans

    4.The applicant’s pay slips dated 29/4/2020 & 25/9/23

    5.The applicant’s and partner’s ATO Notice of Assessments for year ending 2022

    6.Profit & Loss statement for year ending 30 June 2023 (Design Crave)

    7.Joint Commonwealth Bank Statements for 1 June 2015 to 31 August 2015, 1 June 2016 to 31 August 2016, 1 June 2017 to 31 August 2017 and 1 June 2018 to 31 August 2018

    8.Residential lease agreement showing the applicant’s and his family’s current residence in designated regional area post code

    9.List of evidence with attachments submitted to the Department of Home Affairs on 13 April 2020, including a submission in response to section 57 notice:

    ·    Updated form 80 by Mr Patel showing all the employment and correct details.

    ·    Updated from 80 by Mrs Patel showing accurate and updated details.

    Financial year 2015/2016

    ·    Applicant’s corrected pay slips for the financial year 2015-2016 showing total salaried earning as $16,550;

    ·    An updated PAYG summary showing the correct income from salaried work;

    ·    Copy of the applicant’s amended income tax return for the year 2015-2016 showing his salaried income and income from his business (under Corio Cleaners); and

    ·    A copy of updated ATO notice of assessment

    Financial year 2016/2017

    ·    Copy of correct PAYG summary for the year 2016-2017;

    ·    Pay slips as evidence of salaried income;

    ·    Copy of tax return submitted to the ATO for year 2016-2017 which clearly shows that the applicant has earned a total of $53, 451 from his salaried job and self-employment; and

    ·    A copy of ATO notice of assessment for year 2016-2017

    Financial year 2017/2018

    ·    Copy of ATO notice of assessment for 2017-2018;

    ·    Pay slips as evidence of salaried income;

    ·    Copy of tax return showing his income from his salaried job and self-employment;

    ·    The applicant’s ABN history showing the change of his business location to Corio, VIC 3214 in June 2015 after grant of Subclass 489 visa;

    ·    Copy of referral letter from Auto Spa as evidence that the applicant was their contractor (not employee) in Geelong yard;

    §  Referral letter from Zeal CAD services confirming change in their business logo;

    §  Zeal CAD Facebook post with original logo; and

    §  ABN history of Mrs Tejaswini Niravkumar Patel showing her business name registration date.

    ATTACHMENT B

    Migration Regulations 1994

    Schedule 4

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

    (a)the application for the visa; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    justify the granting of the visa.

    (5)In this clause:

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

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

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

    …

    Migration Act 1958

    s 5      Interpretation

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

    …

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

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

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

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

    …