PATEL (Migration) - [2025] ARTA 1327

PATEL (Migration) [2025] ARTA 1327 (16 July 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Vedantkumar Rajeshkumar PATEL
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2450658
Tribunal:Bridget Cullen
Place:Brisbane
Date:  16 July 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.

Statement made on 16 July 2025 at 3:45pm
CATCHWORDS
MIGRATION – cancellation – Skilled Work Regional (Provisional) (Class PS) – Subclass 491 (Skilled Work Regional (Provisional)) – incorrect information and bogus document – previous employment, offer letter and payslips – integrity checks – employment and income not declared in tax return, or by employer – multiple casual and short-term roles – online tax return during COVID pandemic to speed process and save money – further information and amended documentation provided to tribunal – no non-compliance and power to cancel does not arise – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 103, 107
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a Delegate of the Minister to cancel the Applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The Delegate cancelled the visa on the basis that the Delegate considered that the Applicant had not complied with s 101(b) and s 103 of the Migration Act, in providing information in conjunction with his application for a Skilled Work Regional (Provisional) (subclass 491). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Applicant appeared before the Tribunal on 14 July 2025 to give evidence and present arguments. The Applicant was represented in relation to the review. The representative attended the Tribunal hearing, and made submissions on the Applicant’s behalf.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant's visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s 101(b) (incorrect information) and s 103 (bogus documents) of the Act.
The Delegate outlined the information provided to the Department by the Applicant in the decision record:
On 06 August 2021, the visa holder lodged an application for a Skilled Work Regional (Provisional) (subclass 491) visa. On page 11 and 12 of the electronic application form, under the heading ‘Employment History’ give details of employment undertaken in the last 10 year period before the invitation to lodge this application, the visa holder provided the answers (in bold) to the questions below:
Is this the applicant’s current employment situation? Yes
Position: Mechanical Engineer
Employer name: BRISVEGAS REFRIGERATION & AIRCONDITIONIN
Date from: 25 Jan 2021
Description of duties: Please see attached reference letter.
Is the applicant claiming points for this employer? No
Is this employment related to the nominated position? No
In support of the visa holder’s employment claims with Brisvegas Refrigeration & Airconditioning Pty Ltd, he provided the following documents:
·Letter of Offer from Brisvegas Refrigeration & Airconditioning Pty Ltd, dated 19 January 2021, offering the visa holder full-time employment with Brisvegas Refrigeration & Pty Ltd, in the position of ‘Mechanical Engineer. The letter of offer was purportedly signed by Vimal on behalf of Brisvegas Refrigeration & Airconditioning Pty Ltd.
·Payslip, dated 21 May 2021, for the pay period 03 May 2021 to 16 May 2021. The gross wage for this period was AUD2115.38 and the year to date (YTD) figure was AUD16923.04.
·Payslip, dated 03 June 2021, for the pay period 17 May 2021 to 30 May 2021. The gross wage for this period was AUD2115.38 and the YTD figure was AUD 19038.42.
Department’s integrity checks
Following the Applicant’s visa being granted, the Department undertook integrity checks on the Applicant’s claimed employment with Brisvegas Refrigeration & Aircontitioning Pty Ltd “Brisvegas”. The integrity checks revealed that the Applicant did not include income from his work at Brisvegas in his Individual Tax Return for the 2021 financial year. The Department’s information also indicated that the Applicant had listed his “Main salary and wage occupation” on his return as “Farm Hand/Worker – Vegetable Picker” during the 2021 financial year. The Department’s information, obtained from the ATO, reflected that the visa holder was employed and received wages from the University of Southern Queensland; McLean Packing Staff Pty Ltd; Arora & Khattar Holding Pty Ltd; and Coles Supermarket Australia Pty Ltd during the 2021 financial year.
The Delegate further noted that the ATO did not receive wage data from Brisvegas for the Applicant during the 2021 financial year. Concerned that the Applicant had not claimed the Brisvegas employment in his Individual Tax Return, nor had Brisvegas reported any income for the Applicant, the Delegate formed the understandable view that the Applicant had not worked for Brisvegas, and had therefore provided incorrect information to the Department. As a consequence, the Delegate found that the Applicant had not complied with s 101(b) of the Act.
Further, the Delegate found that the Employment Agreement, as well as the payslips purporting to be from Brisvegas, provided to the Department by the Applicant, were bogus documents. As the Delegate found the Employment Agreement and payslips to be bogus, the Delegate also found that the Applicant did not comply with s 103 of the Act.
Information before the Tribunal
There is more information before the Tribunal than that which was available to the Department. Collectively, this information supports the Tribunal’s ultimate findings that the Applicant was (1) truthful in declaring that he had been employed by Brisvegas; and (2) the documents provided by him to the Department were genuine.
The Applicant’s explanation for the ATO discrepancies, in the Tribunal’s view, makes sense, particularly in view of his overall life circumstances. The Applicant came to Australia in 2018, on a Subclass 500 student visa. He had already completed a Bachelors Degree in Mechanical Engineering in his home country, India, before arriving in Australia. Following his arrival, the Applicant first completed a course in English for Academic Purposes, and then enrolled in a Masters Degree program at the University of Southern Queensland “USQ”, in Mechanical Engineering. He graduated after 2 years, at the end of 2020.
While at USQ, the Applicant worked in a variety of casual roles, including in the USQ laboratory, at Coles filling shelves at night, and as a casual fruitpicker. The information declared to the ATO that he was a fruitpicker is therefore correct.
After finishing his Masters Degree in 2020, the Applicant commenced a search for professional work, and took up the role as a Mechanical Engineer with BrisVegas, on a salary of $55,000.00 per year.
The Applicant began work with Brisvegas in January of 2020, and concluded his employment after 5-months, in June of 2021. The Applicant explained that he ceased his work with Brisvegas because he thought he would be able to make more money working in the mines. He completed some additional training and certifications to land a role working at HMAWEAR Solutions in Mackay. The Applicant worked with HMAWEAR Solutions from 2022 until his visa was cancelled.
The Applicant has provided the Tribunal with a copy of his ANZ bank account statements, revealing that the pay reflected on his Brisvegas payslips (as provided to the Department), was deposited into his ANZ bank account on the dates and at the intervals expected.
The Applicant explained that he completed his 2021 financial year tax return online, himself, in the midst of the COVID-19 pandemic. He had been encouraged by friends to do his own return through what was described as a simple online process, in order to expedite his receiving his tax return. He was unfamiliar with the Australian taxation system, and realises now that his effort to save $110.00 on accounting fees has been problematic in the grander scheme of his circumstances. He was unaware that Brisvegas had not reported the income to the ATO. The Tribunal accepts this explanation from the Applicant.
The Applicant has now amended his 2021 Individual Tax Return. There is further evidence before the Tribunal indicating that Brisvegas has also rectified issues on its part relating to payroll and superannuation obligations. The Tribunal has been provided with a letter dated 10 July 2025 from Brisvegas’s tax accountant, whom the Tribunal has confirmed is a registered tax agent. Relevantly, the letter reads as follows:
We can confirm that we have assisted Brisvegas to process the payroll of their employees including Vedantkumar Patel (Vedant) and submit the required annual payroll reports with the Australia Taxation Office. All of Vedant’s payroll amounts have been included in Brisvegas’ quarterly business activity statements.
We also prepared the payment instructions for Brisvegan to pay their employer superannuation guarantee obligations to Vedant and they have all been paid.
The Applicant has provided the Tribunal with his Rest superannuation fund transaction history, dated 20 June 2025. This statement indicates that on 5 May 2025, a contribution was made by Brisvegas for the period from 1 January 2021 to 30 June 2021.
Providing further support to the Applicant’s assertions, the Tribunal has been provided with a copy of the ASIC Current & Historical Company Extract for Brisvegas, which indicates that the company is registered, and lists “Vimal Dave” as a Director. The Tribunal observes that “Vimal” signed the Employment Agreement provided to the Department.
The Tribunal accepts, on the basis of the evidence before it and for the reasons outlined above, that the Applicant was truthful in telling the Department that he had been employed by Brisvegas. Further, the Tribunal accepts that the Applicant’s Employment Contract and payslips, as provided to the Department were genuine documents, and were not bogus.
For these reasons, the Tribunal finds that there was no non-compliance by the Applicant in the way described in the s 107 notice.
As the Tribunal is not satisfied that there was non-compliance by the Applicant in the way described in the notice given under s 107 of the Act, it follows that the discretionary power to cancel the Applicant’s visa does not arise.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the Applicant’s Subclass 491 - Skilled Work Regional (Provisional) visa.
Dates of hearing(s):  14 July 2024
Representative for the Applicant:           Mr Dharmesh Bhupatbhai Bhikadiya (MARN: 2518898)
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 ART, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a [written]# notice:
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
[(1C)The notice under subsection (1) must be given in the prescribed way. ]#
# This wording applies to documents given on or after 1 November 2023: Schedule 1 to Migration Amendment (Giving Documents and Other Measures) Act 2023 (No 26, 2023)
(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.
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