Patel (Migration)

[2022] AATA 3869

Patel (Migration) [2022] AATA 3869 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Ashaben Ashokkumar Patel

REPRESENTATIVE:  Ms Angela De Silva

CASE NUMBER:  2111951

HOME AFFAIRS REFERENCE(S):          BCC2020/2470051 BCC2020/2520024

MEMBER:Michael Cooke

DATE:25 October 2022

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 25 October 2022 at 4:42pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – incorrect answers in the visa application – applicant’s husband’s employer address – employer’s business does exist at the premises – business leasing arrangements – intends to work for the nominator – power to cancel the visa does not arise – decision under review set aside 

LEGISLATION

Corporations Act 2001, s 146
Migration Act 1958, ss 5(1), 97-105, 107-109, 116, 120
Migration Regulations 1994

CASES

SZEEM v MIMIA [2005] FMCA 27                 

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 delegate cancelled the visa on the basis that the first named applicant breached s.101 of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was unable to appear before the Tribunal due to her recent pregnancy on 17 August 2022 to give evidence and present arguments. The Tribunal received oral evidence from her husband as it was a combined hearing.

4. The applicant was represented in relation to the review and the representative attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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.

8. On 13 February 2017 Mr Ashokkumar Shankarbhai PATEL (born 18 June 1985) applied online for an Employer Nomination Scheme (ENS) (subclass 186) visa via the direct entry stream. This visa, through this stream, lets skilled workers who are nominated by an employer, live and work in Australia permanently. Included in that application as secondary applicants on the basis of being members of his family unit, were his spouse Ms Ashaben Ashokkumar PATEL (the applicant) and their son Maurya PATEL (born 4 April 2012). Mr Ashokkumar Shankarbhai PATEL was successfully nominated for the visa by employer “Falcon Accounting Services Pty Ltd” (“the Nominator”) to work for them in the occupation of “External Auditor”.

9. The Procedure Advice Manual (PAM3) “GenGuideA - All visas - Visa application procedures” clarifies this was a combined visa application.

10. In support of the combined ENS visa application Mr Ashokkumar Shankarbhai PATEL provided a form 1221 Additional Personal Particulars Information, which he signed on 12 February 2017, in which he provided the following information (in bold):

    Question 40

    Do you intend to work in Australia? Yes

    Name of employer Falcon Accounting Services Pty Ltd

    Address of employer: 3/383-385 Church Street Parramatta NSW 2150

    Type of business: Accounting and auditing

    Occupation/position: External auditor

11. By operation of section 99 of the Act, this information provided in the form 1221 is taken to be answers to questions in the combined ENS visa application form, for the purposes of determining whether there has been non-compliance with section 101(b) of the Act.

12. Based on the above answers, on 22 November 2017 the delegate assessed Mr Ashokkumar Shankarbhai PATEL met all the regulatory requirements and granted him a primary ENS visa.

13. The delegate subsequently assessed the applicant and her son, met all the regulatory requirements and granted them secondary ENS visas. Her son has subsequently been granted Australian citizenship.

14. In these circumstances, section 98 of the Act clarifies that a non-citizen who does not fill in his or her application form 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.

15. Section 100 of the Act also clarifies that 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.

    Information indicating the answers were incorrect

16. On 26 April 2019, the Department contacted the property manager of the claimed work location - Falcon Accounting Services Pty Ltd - 3/383-385 Church Street, Parramatta, New South Wales.

17. On the same date, a response was received from the property manager, which did not identify the applicant, Falcon Accounting Services Pty Ltd, as a current or previous tenant at the address.

18. The above information indicates that the visa application was approved based on false information which was that the Nominator had a physical business premises located at 3/383-385 Church Street Parramatta NSW 2150 and, furthermore, that Mr Ashokkumar Shankarbhai PATEL (the applicant’s husband) intended to work for them at that location.

19. Based on the above information, the delegate found that the applicant did not comply with section 101(b) of the Act because she (vicariously) provided the following incorrect answer in the online ENS visa application form lodged 13 February 2017:

    ·     In the form 1221 Additional Personal Particulars Information, which Mr Ashokkumar Shankarbhai PATEL signed on 12 February 2017, provided in support of the ENS visa application, where he stated he intends to work in Australia as an external auditor for Falcon Accounting Services Pty Ltd at 3/383-385 Church Street Parramatta NSW 2150.

20. The delegate also found that s.107A of the Act specifies that non-compliance in relation to the combined application for an ENS visa, (lodged on 13 February 2017 and granted on 22 November 2017) can constitute grounds for the cancellation of the applicant’s current Resident Return visa granted on 20 October 2020.

21. Therefore, the delegate found that there were grounds to cancel her current Resident Return visa under section 109 of the Act, based on non-compliance with section 101(b) of the Act.

    Did the notice comply with the requirements in s.107?

22. In the present case, there is a question as to whether the notice issued by the Minister’s delegate complied with s.107. 

    Following the issue of an NOICC the applicant’s representative issued the following response dated 12 November 2020, in which the agent presented on behalf of the applicant the following reasons why they do not agree there was non-compliance:

    ·    Contrary to the Department’s checks referred to in the NOICC, the Nominator business was indeed operating from 3/383-385 Church Street, Parramatta NSW during the period 12 February 2017 to 22 November 2017, which is the period material to assessing whether the cancellation grounds exist – from the date the application was lodged, to the date the visa was granted.

    ·    The visa holder is not privy to the Nominator’s leasing arrangement, however, independent findings support that the Nominator’s business was operating out of that address during the relevant period.

    · The agent provided the ASIC current & historical company extract shows that on 7 January 2014, Falcon Accounting Services Pty Ltd amended their principal place of business address to “Suite 3, 383 Church Street, Parramatta NSW 2150” and this remains the same to the present date, as the principal place of business. This source of information is reliable because “a failure to notify ASIC amounts to strict liability offence under s146 of the Corporations Act 2001”.

    ·    As Registered Tax Agents, the Nominator is required by law to be registered with the Australian Government – Tax Practitioners Board. Their registration details show their address as 3/383-385 Church Street, Parramatta NSW 2150.

    ·    The information provided by the property manager allows room for plausibility and uncertainty – for example, that the tenant may be an associated entity of the Nominator, which could explain the current occupancy.

    ·    The Nominator publishes its address on their website. This information is found at the footer of their website and on the “contact us” page through a hyperlink “get driving instructions.” The address is listed as 3/383-385 Church Street Parramatta NSW 2150, and includes Google reviews posted a year ago, and back to four years ago. The source code to the Nominator’s website reveals that it was last updated in December 2017, and notably the address remains the same and has not been updated since that time.

    ·    The Nominator’s Facebook page actively posts updates and lists its address as 3/383 - 385 Church Street, Parramatta NSW 2150. He provided screenshots of the Facebook page for Falcon Accounting Services and Falcon Home Loans, stating the page was created on 27 April 2014 and shows posts from 2014 through to 2020.

    ·    The Nominator’s address currently still shows online as “3/383-385 Church Street, Parramatta NSW 2150” on the following common platforms, screenshots of which were provided in support of the NOICC response:

    o   Google Search Engine Result Page

    o   Accountants Sydney

    o   Google Local Listing

    o   True local Listing

    o    Where is Listing

    o   o Yellow Pages Listing

23. In support of the NOICC response dated 3 November 2020, the agent provided a statutory declaration made by Mr Ashokkumar Shankarbhai PATEL on 2 November 2020, stating:

    “This is to inform you that I have attended the address of Falcon Accounting Services Pty Ltd located at 3/383-385 Church Street, Parramatta NSW 2150 on or about January 2018.

    Upon receiving my Notice of Intention to Consider Cancellation (NOICC) I contacted Dimuth Sananda Samarasinghe, on 23 September 2020, Director of Falcon Accounting Services Pty Ltd by telephone who confirmed that the business continues to operate from 3/383-385 Church Street, Parramatta NSW 2150.

    On 02 November 2020 I physically attended 3/363-385 Church Street, Parramatta NSW 2150 and confirm that Falcon Accounting Services Pty Ltd continues to operate at the premises. I actually went inside the office and confirms [sic] everyone is still working there. I have also took pictures as evidence (photographs of the business’ signage located outside the office and three photographs inside of the office as per below).”

24. The agent also submitted:

    ·    For the above reasons, the visa holder’s spouse Mr Ashokkumar Shankarbhai PATEL did not breach section 101(b) of the Act and as such there is no ground to cancel the visa holder’s visa.

    ·    Form 1221 is a supplementary form required to support the Primary Applicant’s ENS visa application, and it is to be completed by all applicants who are 18 years of age or over.

    ·    As the visa holder was an applicant who was over 18 years of age, she also provided a completed and signed Form 1221 on her own right, to the ENS visa application. All information contained in the Form 1221 that she completed is true, accurate, and correct. As such, the visa holder herself has also not breached condition 101(b) of the Act, and there are no grounds to cancel her visa on that basis either.

25. In a section 120 Notice dated 24 May 2021, the delegate put the additional information to the applicant, her husband and their son, relevant to his assessment of whether or not grounds exist to cancel her visa. The problem with the additional Notice is that a section 120 Notice does not apply to a s.109 cancellation decision but rather to a cancellation pursuant to s.116. Under s.108(b), the Tribunal must decide whether there was non-compliance by the visa holder in the way described in the s.107 notice. It is not open for the Tribunal to consider non-compliance other than the way particularised in the s.107 notice (SZEEM v MIMIA [2005] FMCA 27). The particulars must state the basis on which the compliance is alleged and be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the allegation (SZEEM v MIMIA [2005] FMCA 27).

26. In the Tribunal’s opinion, the s.120 notice appears to give further particulars of the non-compliance not stated in the s.107 notice, including the particulars of the applicant’s businesses in Australia, which the delegate considered indicated that the applicant’s husband never intended to work in the position in the Nominator’s business. While the non-compliance concerns the same answer given in the visa application form, the facts and circumstances giving rise to the non-compliance are particularised differently. As noted in the applicant’s submission, s.120 is a process that applies to s.116 cancellation decisions - not s.109 cancellations. The Tribunal considers the information in the s.120 notice should not be treated as forming part of the s.107 notice.

27. However, 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?

28. 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) when she provided (vicariously) the following incorrect answer in the online ENS visa application form lodged 13 February 2017:

    ·In the form 1221 Additional Personal Particulars Information, which Mr Ashokkumar Shankarbhai PATEL signed on 12 February 2017, provided in support of the ENS visa application, where he stated he intends to work in Australia as an external auditor for Falcon Accounting Services Pty Ltd at 3/383-385 Church Street Parramatta NSW 2150.

29. The Tribunal observes that it was not a requirement of the ENS visa that the applicant’s husband actually worked for the Nominator at the time he applied for the visa. Furthermore, it was not a legal requirement for him to work for the Nominator business once the ENS visa is granted.

30. The applicant’s representative has submitted that:

    “Intention” is not defined in the Migration Legislation. Determining whether he intended to work at the Nominator business, depends on his specific state of mind on the day he signed his form 1221 (12 February 2017) and before he was granted the visa (22 November 2017). The employment contract executed on 10 February 2017 which would come into effect on grant of the visa, stipulated the address of the business premises, and the location of the business premises still exists. This shows he had a genuine intention to work in Australia. Whatever happened subsequently is irrelevant because it would only reduce down to an exercise of speculation.

31. The delegate also seems to have been convinced that the office of Falcon Accounting Services Pty Ltd at 3/383-385 Church Street Parramatta NSW 2150 – did not actually exist. The applicant’s representative (on behalf of the family) has insisted that the premises does exist and has outlined why to the delegate. Additional information has subsequently been submitted to the Tribunal by her representative on this subject.

32. The delegate it appears chose to use (as his principal source of verification) – information from the property manager of the Parramatta premises. It does not appear from perusing the available information that a Departmental ‘site visit’ was conducted for actual confirmation when the property manager claimed there was no such company. Furthermore, the Nominator himself does not appear to have been interviewed to confirm the applicant’s claim that his premises existed. On top of this the representative (see above) had given detailed information to the delegate proving its existence.

33. The Nominator has, helpfully, issued a recent Statutory Declaration to the Tribunal giving a full and frank explanation of the circumstances of his lease of the property. He has also provided the various business addresses within (including a photo of the exterior and a video of the interior) and the reasons why the various business leasing arrangements may have confused the leasing agent and delegate. The Tribunal, on balance, finds it gives greater weight to the information provided by the applicant, than it does to the leasing agent or the findings of the delegate.

34. For the above reasons, the Tribunal finds that it is not satisfied that there was non-compliance by the applicant in the way described in the s.107 notice.

35. 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

36. 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.

    Michael Cooke
    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.