Patel (Migration)

[2023] AATA 331

Patel (Migration) [2023] AATA 331 (16 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Drashti Bhaveshkumar Patel

REPRESENTATIVE:  Mr James Shin

CASE NUMBER:  2200970

HOME AFFAIRS REFERENCE(S):          BCC2020/2604139

MEMBER:R. Skaros

DATE:16 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

Statement made on 16 February 2023 at 10:59am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – incorrect employer address – real estate agent’s advice on site tenancy – applicant’s ABN used for unrelated business – best interests of the children – power to cancel the applicant’s visa does not arise – decision under review set aside         

LEGISLATION

Corporations Act, s 50AAA
Migration Act 1958, ss 5(1), 97-105, 107-109, 116, 119, 120
Migration Regulations 1994, r 2.41

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a 10-year-old citizen of India. She was born in Australia. Her parents arrived in Australia as holders of student visas and were granted further student visas onshore. She was granted a temporary skilled, Subclass 485, visa as a secondary applicant which ceased on 24 December 2016.  On 1 December 2016, her father (Mr Bhavesh Kumar Kantibhai Patel) applied for an Employer Nominated Regional Sponsored (Subclass 187) visa. She was included in the Subclass 187 visa application, which was granted on 3 April 2018 for a period of 5 years. The applicant subsequently applied for, and was granted, a Resident Return, Subclass 155, visa on 29 September 2020. She applied for a further Resident Return, Subclass 155, visa which was granted on 4 November 2020.

3. The delegate cancelled the applicant’s most recently held Subclass 155 visa on the basis that there had been non-compliance with s. 101 of the Act in relation to the previously held Subclass 187 visa. A copy of the delegate’s decision record was provided to the Tribunal. The Tribunal notes that the applicant’s parents and each of her siblings were the subject of separate cancellation decisions.

4. The applicant, her parents, and two siblings appeared before the Tribunal on 2 February 2023 to give evidence and present arguments. The applicant’s parents gave evidence on her behalf. The hearing was conducted in combination with the related cancellation matters lodged with the Tribunal by the applicant’s parents and her siblings: AAT File No’s 2200967, 2200968, 2200971, and 2200972. The hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was represented in relation to the review. The representative attended the hearing by video.

6. The Department’s file contains a non-disclosure certificate issued under s 375A of the Act in respect of various documents. Mr Bhavesh Patel was informed of the existence of the certificate and a copy of it was given to him at the hearing. The certificate states that disclosure of the information contained in the specified document would be contrary to the public interest because 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. Having considered the nature of the documents covered by the certificate, the Tribunal formed the view that the certificate provides a valid public interest reason for non-disclosure of the material. The Tribunal explained to Mr Bhavesh Patel that, notwithstanding the validity of the certificate, it was still under obligation to disclose any information in the documents relevant to the issues in the review. Mr Bhavesh Patel indicated he understood, and no issue was taken, or submissions made, regarding the validity of the certificate.

7. 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

8. 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.

9. 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.

10. Section 107A provides that possible non-compliance in connection with a previous visa may be grounds for cancellation of the current visa.

11. 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?

12. 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 in the following respects:

13. On 1 December 2016 the applicant applied for the Subclass 187 under the Direct Entry stream on the basis of being a member of the family unit of Mr Bhavesh Patel, who in turn was nominated by Falcon Accounting Services Pty Ltd (the nominator) to work in the occupation of Accountant.

14. In support of the Subclass 187 visa application, a form 1221 Additional Personal Particulars Information was provided, which was signed by Mr Bhavesh Patel on 24 November 2016, in which he provided the following information:

    Question 40

    Do you intend to work in Australia?  Yes

    Name of employer     Falcon Accounting Services Pty Ltd

    Address of employer: Level 1, 374 Banna Avenue, Griffith NSW 2680

    Type of business:       Accounting

    Occupation/position:   Accountant

15. Mr Bhavesh Patel also provided a form 80 Personal Particulars for assessment including character assessment, which he signed on 24 November 2016, in which he provided the following information (in bold):

    Question 19
    Give details of all employment and unemployment:
    [The answer included]:
    Date from:                 Oct 2016
    Date to:  Current

    Name of business:      Falcon Accounting Services Pty Ltd
    Type of business:       Accounting Services

    Full address of business: Level 1, 374 Banna Ave, Griffith NSW 2680

16. The delegate considered that, by operation of s 99 of the Act, any information provided in forms 1221 and 80 is taken to be answers to questions in the Subclass 187 visa application form, for the purposes of determining whether there has been non-compliance with s 101(b) of the Act.

17. On 29 June 2018 the Department received the following information:

    ·The company National Roads and Motorists’ Association (NRMA) has a regional office at 374 Banna Avenue, Griffith – the ground floor of the building where Mr Bhavesh Patel claimed Falcon Accounting Services Pty Ltd was located.

    ·NRMA Griffith advised they had not noticed anyone utilising the space in level 1 above their office for a long time.

    ·There is no signage at the address for Falcon Accounting Services Pty Ltd and the doorway was locked and appeared dirty and unused.

18. Further to the above, on 26 April 2019, the Department conducted checks on the Griffith Real Estate website for the address at Level 1, 374 Banna Avenue Griffith which showed that the property was listed for rent under commercial listings. A departmental officer contacted the real estate agent, who advised that no business named Falcon Accounting Services Pty Ltd has ever been located or operated from the address Level 1, 374 Banna Avenue, Griffith NSW 2680.

19. The delegate considered the information to be indicative of the visa application having been approved based on false information, namely, that the sponsor had physical business premises located at Level 1, 374 Banna Ave, Griffith NSW 2680, that Mr Bhavesh Patel had been working for the nominator as an accountant at that address since October 2016 and intended to keep working for them in that occupation at that address. The delegate formed the view that there had been non-compliance with s 101(b) of the Act because incorrect answers had been provided in the visa application about Mr Bhavesh Patel having worked since October 2016 as an Accountant for Falcon Accounting Services Pty Ltd at Level 1, 374 Banna Avenue, Griffith NSW 2680. The delegate also considered that Mr Bhavesh Patel had provided incorrect information about his intention to work in regional Australia as an Accountant for Falcon Accounting Services Pty Ltd at 374 Banna Avenue, Griffith NSW 2680.

    Response to the s 107 notice

20. The representative submitted that, given the serious nature of the consequences, a high degree of satisfaction was required to establish the breach. The representative took issue with the investigation conducted by the Department. It was submitted that the Department had not confirmed the identity of the person at NRMA Griffith, nor whether they were employed by NRMA Griffith at the time the RSMS visa application was lodged on 1 December 2016. It was contended that “a long time” was not clarified nor specifically defined and there was nothing conclusive to indicate that no one occupied this space at the time the RSMS visa application was lodged on 1 December 2016.

21. In relation to the information obtained from Griffith Real Estate, the representative submitted that the property had been sub-leased from another tenant and provided a copy of a ‘Lease of Commercial premises’ which appeared to be made on 1 February 2016, stating that the lessor ‘H&R Global Food Imports and Exports’ leased the premises of ‘a portion of level 1, 374 Banna Avenue Griffith NSW 2680’ to the lessee ‘Falcon Accounting Services Pty Ltd’ for a term of 24 months, with an option to renew.

    Further ‘notice’ sent 

22. On 28 April 2021 the Department sent further ‘notices’ to the applicants, which the delegate indicated was issued under s 120 of the Act, in which the following further particulars were put for comment:

    ·According to the Australian Government’s Australian Business Register, Mr Bhavesh Patel registered Australian Business Number (ABN) 74147039063 since 1 December 2009. The ABN was cancelled on 18 September 2013 and reactivated from 1 July 2017 to the present time.

    ·A search for this ABN in the public domain includes a link to a business search website called ‘ServiceSeeking.com.au’ with reference to a business named ‘Ask Datatech’ who are noted as being a member of ServiceSeeking.com.au since April 2013 under the above ABN. The business is listed as being located in ‘Harris Park NSW’. The information about this business includes:

    -    ‘Ask Datatech is an Ahmedabad based offshore outsourcing company in India. We provide best quality of Data Entry, Online Data Entry Jobs India, Offline Data Entry Work, Online Date Entry, Data Capture, Data Processing, Data Conversion, Image Scanning, OCR and Indexing, Forms Processing, Web and Internet Research. We are the preeminent supplier of outsourcing and offshore back office services.’

    -    The website for ‘Ask Datatech’ indicates the website itself was created in 2015, and states the business has 10 years of experience and over 100 professionals, and includes the following information about the business:

    -    ‘Ask Datatech is the service leader in Data, Back-Office Services and preferred destination for outsourcing all kind of services likely Data Entry services, Outsource Data Management Services, Magento & Ecommerce products Data Entry, Data Processing, Form Processing, Online and Offline Data Entry services, Scanning, Web Scraping, Web Research Services and server’s number of clients based in USA, U.K., Australia Japan, Canada, Ireland, Netherland, Germany, Spain.’

    -    The contact phone number at the top of the home page is the same as the mobile phone number which was listed in the RSMS visa application form lodged on 1 December 2016, and which Mr Bhavesh Patel had also listed in the form 956 dated 23 September 2020 related to a previous NOICC, indicating this has been his contact phone number since before the RSMS application was lodged, until the present time.

    -    A LinkedIn profile for ‘Ask Datatech’ states the business was founded in 2012 and lists the Chief Executive Officer as ‘Bhavesh Patel’. The page contains a link to Bhavesh Patel’s LinkedIn profile, which states he was educated at the University of South Australia, has worked as the Chief Executive Officer (CEO) for Ask Datatech from February 2012 to the present. It lists the address of ‘Ask Datatech Australia’ as ‘Wigram Street, Harris Park NSW 2150’. In the citizenship application lodged 10 April 2019, Mr Bhavesh Patel stated he had lived at that address between 16 January 2012 and 4 January 2015.

    -    The Facebook profile for ‘Ask Datatech Australia’ includes a ‘page transparency’ entry by Facebook, stating the page was created on 3 June 2013. It includes posts between 4 June 2013 and 27 August 2014 only. However, it includes links to the US-based website ‘ which was last updated in 2021. The contact page details their Australian contact number, which is the same as Mr Bhavesh Patel’s mobile phone number.

    -    A search in the public domain for ‘Ask Datatech Australia’ undertaken on 22 April 2021 displays the phone number for the business which is the same as Mr Bhavesh Patel’s mobile phone number. It also displays the business’ address as ‘Bromfield Street, Griffith NSW 2680’. In the NOICC response dated 17 November 2020 Mr Bhavesh Patel provided evidence he had purchased that property on 5 November 2019.

23. The delegate considered the above information indicated that Mr Bhavesh Patel had been working as the CEO of Ask Datatech since 2012 to the present time, so did not work for the nominating business “Falcon Accounting Services Pty Ltd” between October 2016 and lodgement of the RSMS (Subclass 187) visa application on 1 December 2016 as claimed. The delegate also considered that Mr Bhavesh Patel had provided incorrect answers on his form as he had not given details of his employment as the CEO of Ask Datatech.

24. In response to the further notice, it was submitted that Mr Bhavesh Patel had not worked for, nor derived any income, from Ask Datatech. It was submitted that Mr Bhavesh Patel obtained the ABN for his childhood friend, Mr Mukesh Patel, to assist him with accessing the Australian market. It was submitted that any income declared from the ABN was only for Mr Bhavesh Patel’s casual work in Australia and this was not related to Ask Datatech. In a statutory declaration dated 12 May 2021, Mr Bhavesh Patel stated the following: that the ABN 74147039063 is his, and he registered it in December 2009 for work purposes. However, he was unable to find work and never used it. He did not realise the ABN was cancelled in 2013 until July 2017 when he needed it for casual work. When he realised this, he reactivated it. One of his childhood friends, Mukesh Patel, who resides in India and owns and manages Ask Datatech since 2012, had asked him to set up and ABN so he could buy a web domain in Australia and register an Australian website. Being his friend, he provided him with his ABN details which was used to purchase the domain and advertise Mukesh Patel’s business in Australia. He said he has never performed any work for the business and never derived any income from it. He confirmed that his mobile was published on the website, as requested by his friend, as this would help gain trust from the Australian market. He said he also gave Mukesh Patel his old address for the Google profile, which was needed to build the company’s profile in Australia. He said if he received any calls, he simply asked them to email their enquires to the office email which was in India. 

25. Mr Bhavesh Patel stated that he never created any social media pages for Ask Datatech, such as Facebook and LinkedIn, and has never consented for his name to be published on their social media page. He never assumed any role in the company, let alone as CEO. He only realised the business had used his name when he received the notice. He said he was surprised and asked Mukesh Patel, who admitted he had used his name without his knowledge. He said the information in the LinkedIn profile was not even correct, such as the claim that he had attended the University of South Australia.

26. Also provided was a notarised statement from Mukeshkumar Ravachandbhai Patel, dated 12 May 2021, in which he states the following: He and his family own the business Ask Datatech. It is a partnership, and he, his father and his brother are the three partners. He is the Managing Partner of the business. They have three websites: In 2020 he wanted to attract clients from Australia. To get a web domain in Australia he needed an ABN. He had never been to Australia, but Mr Bhavesh Patel, who has been his friend since they were children, agreed to provide his ABN and mobile phone number, which he used to purchase a web domain in Australia: Once he had an Australian website, his plan was to promote his business with greater trust and, if the business had a local address, it would gain a better Google ranking in Australia. That was why he put Bhavesh Patel’s mobile phone number and address in the Google listing. To further promote the business, he created social media pages including LinkedIn and Facebook. He used Bhavesh Patel’s name and put his position without asking him, because he thought Bhavesh would not mind. This was for marketing purposes and his marketing team created this. He takes full responsibility for having done this. He said all these years Bhavesh did not know any details about the business, and he did not share any information about his business with Bhavesh. He said Bhavesh has never worked in his company nor obtained any income from it. He said Bhavesh only asked him about it recently, was shocked, and he feels terrible. He said he did not mean to cause problems for Bhavesh and did not realise this would cause him issues including potentially having his visa cancelled. He said the website is still active, however, the Australian market has never been that big for him. He said he did the same for the US website and has never actually had an office outside India. The US number is also a Skype number.

27. The representative also provided copies of Mr Bhavesh Patel’s lodged tax return forms for the 2015 – 2020 financial years. The returns indicate that Mr Bhavesh Patel had received income from two sources: employment as a security guard and from Falcon Financial Services Pty Ltd.

28. In addition to the above, Mr Bhavesh Patel provided evidence of his and his family’s residence in Australia since 2009, including in the regional area of Griffith since 2015. The evidence indicates that the applicant and her siblings, who are aged 7 and 6, were all born in Australia and attend school in Griffith. The applicant has applied for evidence of her citizenship following her tenth birthday, however, that application was refused. A further application for evidence of citizenship is currently pending before the Department. The applicant’s parents provided evidence of their ownership of three properties in Griffith, two of which are under construction. The applicant’s mother has been employed as a process worker for a company in Griffith. It was submitted that the applicant, her parents and siblings have resided in Griffith for eight years and have established strong employment, economic and personal ties.

1. On review the Tribunal received the following additional documents as evidence of Mr Bhavesh Patel’s employment with the nominator:

   ·Various ANZ Bank statements from January 2017 to September 2017 for Mr Bhavesh Patel indicating he had been receiving a monthly salary ($3,893) as a ‘transfer from Falcon Accounting: Salary Bhavesh’.

   ·Commonwealth Bank statement for Mr Bhavesh Patel indicating he had received one salary payment in August 2018 as a direct credit from ‘Falcon Accounting: Salary Bhavesh’.

   ·PAYG payment summary for the financial years ended 30 June 2018 and 30 June 2019 indicating Mr Bhavesh Patel had received gross payments of $28,346 and $20,004 respectively from Falcon Financial Services T/A Falcon Home loans.

   ·Photographs of 372-374 Banna Ave Griffith showing signage for H&R Global and Falcon Accounting Services and Falcon Financial Services on the front door.

   ·Copy of an email dated 6 January 2019 from Mr Bhavesh Patel to Sam Dimuth, with a letter attached, advising of his resignation from Falcon Accounting Services.

   ·An email dated 2 February 2023 (the day of the hearing) from Dimuth Samarasinghe (Sam) to Mr Bhavesh Patel, which included an attachment of a signed (but unwitnessed) declaration from Mr Samarasinghe.

2. When queried about the declaration and why it had not been witnessed, Mr Bhavesh Patel indicated he had just received it from Mr Samarasinghe but could request him to resend it with the required signatures. The Tribunal did not consider this to be necessary. It accepts that the statement was made by Mr Samarasinghe, given it was attached to an email sent from his account. In the statement, Mr Samarasinghe said he is the Director and shareholder of Falcon Accounting Services Pty Ltd, which is currently operating its business from an address in Parramatta. He said he is also the Director and shareholder of Falcon Financial Services Pty Ltd, which also operates from the same office in Parramatta. He said they had a branch office in Griffith, at 374 Banna Ave, which had been sub-leased from H&R Global Food Imports and Exports. He said the sub-lease document was provided with the RSMS application. He said Mr Bhavesh Patel was working for Falcon Accounting at the Griffith branch as an Accountant from October 2016 to December 2018.

3. At the hearing, the Tribunal queried Mr Bhavesh Patel about his residence in the Griffith region and claimed employment with Falcon Accounting Services in Griffith. He gave evidence that he had been living in Griffith since 2015 and was working in security. In about August/September 2016 he saw an advertisement on Career One for an Accountant. The salary was $58,000 and he applied for the job. He said he was interviewed for the role by the Director Sam (Mr Samarasinghe). He was later informed that he was successful, got an offer of employment and started working in October 2016.

4. When asked about the location of the employment, Mr Bhavesh Patel said it was on the first floor of 374 Banna Ave, Griffith. He said they shared the office space with H&R Global. He was usually the only person in the office. He said the office had a desk and computer. He had a key to the office and worked from that location. He said sometimes a person from H&R Global would also be in the office, so on some days it would be the two of them. Mr Bhavesh Patel said when he started working for Falcon Accounting Services it was a newly established office, as the business was trying to expand.

5. When asked about other branches operated by Falcon Accounting Services, Mr Bhavesh Patel said the head office was in Parramatta and they had an office in Tasmania. The Tribunal noted that the company claimed to have branches in other regions of Australia. Mr Bhavesh Patel said he was not aware of the other branches. The Tribunal expressed some concern about his lack of knowledge regarding other branches operated by the company, to which Mr Bhavesh Patel said he only had dealings with the Parramatta branch. When asked who he dealt with in the Parramatta branch, Mr Bhavesh Patel said Sam (the director), Deepak, Dipika and Chalana.

6. When asked about the day-to-day tasks undertaken, Mr Bhavesh Patel said he checked and reviewed income and expenses. He also checked and reviewed invoices/bills and payments. When asked to provide further details, he said he would regularly receive the bank statements, electronically, and export the information (income and expenses) into an excel sheet and review the accounts. When asked if he was responsible for internal accounts or external clients, he said internal, but he was also tasked with expanding the business in Griffith. He tried to attract new clients, but it was difficult.

7. Mr Bhavesh Patel gave evidence that his salary was paid monthly. He had only worked for part of the 2016/2017 and 2017/2018 financial years, hence the amounts indicated on his PAYG payment summaries. The Tribunal noted that the PAYG payment summaries (which were reflected in his tax returns for the corresponding years) were issued by Falcon Financial Services, which had a different ABN, and not the nominating entity (Falcon Accounting Service). Mr Bhavesh Patel said he had only come to realise he was receiving payment from the financial services company after he received the s 107 notice. When he raised this with his employer, Mr Samarasinghe informed him that he was the Director of both companies.

8. When asked about the ABN associated with the business Ask Datatech, Mr Bhavesh Patel reiterated the evidence provided in his statutory declaration that the ABN was initially obtained for his casual work, which he later provided to his friend, Mukesh Patel, who needed it to purchase/register an Australian domain name for his business in India. Mr Bhavesh Patel did not know much about the business activities of Ask Datatech, other than it was his friend’s business and that his friend was trying to attract customers from the US, Australia and Canada. He said the internet profile in his name was set up by his friend and that it contained incorrect information, as he had not studied at the University of South Australia, nor was he the CEO. He said he did not work for or generate any income from Ask Datatech and does not know if his friend ever got any business from Australia. Mr Bhavesh Patel said the ABN was cancelled in 2013. He had not realised it was cancelled until July 2017, when he needed it to undertake casual work.

9. Mr Bhavesh Patel gave evidence that in July 2017 his nominating employer had problems with the sub-lease, and they were unable to work from the office in Griffith at the time. He said Mr Samarasinghe informed him that he would contact him in a few months when the lease issue was resolved. He said he recommenced the employment in mid-2018 and worked until December 2018, when he was informed that the Griffith office would be closing. He said Mr Samarasinghe told him he can transfer to the Sydney office, but he decided not to because his family was already settled in Griffith and the visa required him to live and work in a regional area. When asked about the type of work he undertook under his ABN, he said local cleaning jobs.

10. In relation to the funds (totalling $43,000) received in his account in November 2019 from Mr Mahesh Patel, Mr Bhavesh Patel said that Mahesh was a close family friend in Australia. He loaned him the funds to assist with the purchase of the property. He said that Mahesh continues to support him and had recently loaned him money for development of the property.

11. The Tribunal also took evidence from the applicant’s mother, who said that her spouse (Mr Bhavesh Patel) had worked as an Accountant in the Griffith office. She appeared slightly confused about the dates but said when the accounting company agreed to sponsor him, he started working for them and was there for about 8 or 9 months.

12. In addition to the above, the Tribunal also had regard to material provided to the Department by Falcon Accounting Services in support of the associated nomination application as well as other nominations lodged by the same company in subsequent years. The information relevantly included the advice from the Regional Certifying Body (RCB), a sub-lease document between Falcon Accounting Services and H&R Global Food Imports and Exports Limited (unwitnessed and unsigned), an employee/staff list, including their position title and immigration status and details regarding the branches the company claimed to have established in regional areas.

13. The Tribunal also took evidence from the applicant’s parents regarding their current circumstances, the hardship that the applicant, and the other children, may experience if the visa was cancelled, the best interest of the children, their contribution to the community and other circumstances prescribed in reg 2.41 relevant to the exercise of the Tribunal’s discretion. While the circumstances, when considered as a whole, weighed largely in favour of not cancelling the visa, the discretionary power to cancel the visa did not arise in this case because the Tribunal was unable to be satisfied on the evidence before it that there had been non-compliance as described in the s 107 notice.     

    Consideration

14. In determining whether there has been non-compliance as described in the s 107 notice the Tribunal has had regard to all the evidence before it as follows.

15. In this case, the non-compliance identified by the delegate who issued the s 107 notice relates to Mr Bhavesh Patel’s employment claims, as provided in the Subclass 187 visa application, that he had been employed by Falcon Accounting Services as an Accountant since October 2016 and that he had an intention to continue working there. A further ‘notice’ was sent to the applicant, which the delegate indicated was issued under s 120 of the Act. The Tribunal notes that s 120 of the Act relates to the issuing of an invitation to comment on information which has not been disclosed to an applicant in a notice issued under s 119 of the Act, which in turn pertains to the cancellation power under s 116 of the Act. In this case, the delegate sought to cancel the applicant’s visa under s 109 of the Act (not under s 116), accordingly, any suspected non-compliance must be particularised in a notice issued under s 107 of the Act. Consequently, the information issued under the s 120 invitation by the delegate cannot form part of the particulars set out in the s 107 notice for the purposes of cancellation under s 109. The Tribunal, however, did question Mr Bhavesh Patel regarding the matters set out in the s 120 invitation, being his suspected employment with Ask Datatech, for the purpose of informing the alleged non-compliance set out in the s 107 notice.

16. Section 101 of the Act requires an applicant to complete their application form in a way that all questions are answered and, relevantly, that no incorrect answers are given or provided. Mr Bhavesh Patel claimed in the visa application, which was lodged on 1 December 2016, that he had been employed as an Accountant with Falcon Accounting Services since October 2016 and that he intended to continue working in that position.

17. Mr Bhavesh Patel has maintained that he provided correct answers regarding his employment with Falcon Accounting Services at the time he applied for the Subclass 187 visa. The evidence provided in support of this claim included the receipt of a monthly salary into his bank account. While it is not clear which entity transferred the payment, the amounts appear consistent with the terms and conditions of employment with the nominator (Falcon Accounting Services) as set out in the Offer of Employment. The PAYG statement and tax return documents for the 2016/2017 financial year, however, indicate that the payer was Falcon Financial Services. The evidence before the Tribunal, including in ASIC records provided to the Department in connection with other nomination applications, confirm that Mr Samarasinghe was, at the relevant time, the director and shareholder of both companies. The Tribunal accepts Mr Bhavesh Patel’s evidence that he did not realise that his salary payments were being paid by a different entity until it was brought to his attention by the delegate who cancelled his visa.

18. Given they had the same director, who would have managed, directed and controlled both entities, the Tribunal considers that Falcon Accounting Services and Falcon Financial Services are associated entities, as defined in s 50AAA of the Corporations Act 2001(Cth). The Tribunal does not consider that salary payments made to Mr Bhavesh Patel by the associated entity (Falcon Financial Services) establishes that Mr Bhavesh Patel was not working for the nominator (Falcon Accounting Services) from October 2016 as claimed in the visa application.

19. The Tribunal has also had regard to the photographs of Falcon’s business premises in Griffith which had signage for Falcon Accounting Services, Falcon Financial Services and H&R Global. It is unclear when these photographs were taken, though other evidence before the Tribunal suggests that the photographs were provided in support of other nomination applications and possibly to the RCB. These photographs appear to support the claim that Falcon and H&R Global shared the office at 1/372-374 Banna St, Griffith. Information obtained by the Tribunal from other applications suggests that Falcon and H&R Global were known to each other, and it is plausible that the companies agreed to share office premises in Griffith.

20. The checks conducted by the Department on 26 April 2019 with the real estate agent in Griffith indicated that Falcon Accounting Services was not a registered lessee of the office. In response to this information, Mr Bhavesh Patel submitted that Falcon Accounting Services had subleased part of the office from H&R Global. The full record of the Department’s checks indicated that the real estate agent had advised departmental officers that H&R Global was a lessee of the premises and had a lease in place which ceased sometime in the preceding 12 months. As noted above, the evidence before the Tribunal from various sources indicates that Falcon Accounting Services and H&R Global were known to each other and it is likely that there was some arrangement between the companies, prior to lodgement of the various nominations which had been made by Falcon Accounting Services, Falcon Financial Services and H&R Global, to share the same office in Griffith.

21. The Tribunal acknowledges the delegate’s concern regarding the sub-lease document being unsigned and unwitnessed, however, this does not necessarily establish that Mr Bhavesh Patel did not work for Falcon from that location as claimed. Mr Bhavesh Patel gave evidence that he commenced employment with the nominator in October 2016 and that he worked from the Griffith office, to which he had a key and that from time to time he shared the office with an H&R Global employee. There is limited evidence before the Tribunal which contradicts this evidence. While Mr Bhavesh Patel’s evidence regarding the day-to-day tasks undertaken in the position was not particularly detailed or impressive, the Tribunal did not consider it so deficient as to conclude that he had not worked for the nominator as claimed in the visa application. Furthermore, the evidence given by Mr Bhavesh Patel about the names of other employees he dealt with from the Parramatta office was consistent with evidence obtained from another application which provided the list of staff employed by Falcon Accounting Services, and possibly the associated entity (Falcon Financial Services).

22. The Tribunal also had regard to information from other sources regarding the business operations of the nominator at the time of the nomination and visa application, including their claim to have various branches in regional areas. It appears that much of the information provided to the Department at the time of the nomination was in support of the nominator’s claim to have newly established offices in the various regional areas for which they needed to fill various positions. The unsigned and unwitnessed sub-lease between H&R Global Food Import and Export was provided with a number of these nominations, as was the advice from the RCB indicating their satisfaction as to the nominator’s need for the position which could not be filled by an Australian in the local area.

23. In relation to the information obtained from the NRMA in June 2018, which the Tribunal notes was more than 18 months after the visa application had been lodged, the Tribunal has had regard to the concerns raised by the representative regarding the limited information given about the NRMA person, including whether they were an employee, the length of their employment, and what they meant by a “long time” when indicating they had not seen anyone utilising the office. Given the problematic nature of the evidence obtained from the NRMA, the Tribunal is unable to give it any weight in its considerations.

24. The evidence before the Tribunal indicates that Mr Bhavesh Patel and his family have resided in Griffith since 2015. Mr Bhavesh Patel commenced working in security and appears to have earned an income from that employment in each financial year as indicated by his tax returns from 2015/2016 to 2019/2020. Mr Bhavesh Patel claims to have applied for a position as an Accountant with Falcon Accounting Services, a Sydney based company, who were seeking to establish a branch office in Griffith. He entered into an employment agreement with Falcon Accounting Services, dated 30 September 2016, and claimed to have commenced that employment in October 2016. Contemporaneous evidence indicates that Mr Bhavesh Patel received monthly salary payments, for a period of at least 9 months, since October 2016 in respect of that employment. Since ceasing the employment Mr Bhavesh Patel returned to work in the security industry.

25. While the Tribunal acknowledges the concerns regarding genuineness of the employment arrangement between Mr Bhavesh Patel and the nominating employer (Falcon Accounting Services) and whether this arrangement may have been entered into for the purpose of facilitating a migration outcome for Mr Bhavesh Patel and his family, there was limited probative evidence before the Tribunal to establish that Mr Bhavesh Patel had not worked for Falcon Accounting Services in Griffith, from October 2016 until the December 2016, when the visa application was lodged with (and the information provided to) the Department. For these reasons, the Tribunal is not satisfied that there has been non-compliance with s 101(b) of the Act as described in the s 107 notice.

26. In relation to the information set out in the s.120 invitation, which the Tribunal has found does not form part of the particulars of the s 107 notice, the Tribunal makes the following remarks. Having questioned Mr Bhavesh Patel about his association with Ask Datatech, the Tribunal formed the view that Mr Bhavesh Patel’s relationship with Ask Datatech was nothing more than the provision of his ABN and address details to his friend (Mukesh Patel) for the purposes of purchasing and registering a website with an Australian domain. The Tribunal notes that the ABN used by Ask Datatech to purchase a domain name was cancelled in 2013 and had not been re-registered until July 2017 when Mr Bhavesh Patel needed it to undertake contract cleaning work. It was clear from Mr Bhavesh Patel’s evidence that he had little knowledge about business activities or structure of Ask Datatech. The Tribunal accepts that Mr Bhavesh Patel was not the CEO of Ask Datatech and accepts that he was not involved in its business operations or that he derived any income from that business. 

27. As the Tribunal is not satisfied that there was non-compliance 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

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.

   R. Skaros
   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.

   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.