Patel (Migration)

[2022] AATA 3868

Patel (Migration) [2022] AATA 3868 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashokkumar Shankarbhai Patel

REPRESENTATIVE:  Ms Angela De Silva

CASE NUMBER:  2111949

HOME AFFAIRS REFERENCE(S):          BCC2020/2516577

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 10:52am

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

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 applicant had breached s.101(b) of the Regulations by providing incorrect information. 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 appeared before the Tribunal on 17 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from his wife.  

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

5. Subsequently additional information and submissions addressing the issues in the case have been provided to the Tribunal.

6. 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

7. 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.

8. 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.

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

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

10. The Tribunal has noted the applicant’s submission. It observes that s.120 is a process that applies to s.116 cancellation decisions and not to s.109 cancellations. The Tribunal has considered whether there has been non-compliance in the way described in the s.107 notice. It has also considered whether the information in the s.120 notice should be treated as forming part of the s 107 notice.

11. The Tribunal does not find that the s.120 notice should be treated as forming part of the s.107 notice.

12. The Tribunal has considered the relevant requirements in s.107 (including whether the Minister reached the relevant state of mind; whether the notice included particulars of the possible non-compliance; and/or whether the other statutory requirements in s.107 were met).

    The Delegate’s Finding:

13. Section(s) of Subdivision C of the Act with which it is suspected the visa holder has not complied:

    Section 101. Visa applications to be correct

    A non-citizen must fill in or complete his or her application form in such a way that: (b) no incorrect answers are given or provided.

14. By operation of section 99 of the Act, 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.

    Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa: Section 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa.

    The possible non-compliances that:

    (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

    (b) if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

    Evidence of non-compliance:

    Information provided in ENS visa application

15. On 13 February 2017 the applicant 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 and their son Maurya PATEL. The applicant was successfully nominated for the visa by “Falcon Accounting Services Pty Ltd” (“the Nominator”) to work for them in the occupation of “External Auditor”.

16. In support of the ENS visa application the applicant 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

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

18. Based on the above answers, on 22 November 2017 the delegate assessed the applicant met all the regulatory requirements and granted him a primary ENS visa.

19. The delegate subsequently assessed Ms Ashaben Ashokkumar PATEL and Maurya PATEL met all the regulatory requirements and granted them secondary ENS visas.

    Information indicating those answers were incorrect

20. The delegate’s decision discloses that on 26 April 2019, the Department contacted the property manager of the claimed work location, for ‘Falcon Accounting Services Pty Ltd’ - 3/383-385 Church Street, Parramatta, New South Wales.

21. 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.

22. The above information indicated that the visa application was approved based on false information that the Nominator had a physical business premises located at 3/383-385 Church Street Parramatta NSW 2150 and the applicant intended to work for them at that location.

23. Based on the above information, the delegate considered the applicant did not comply with section 101(b) of the Act because the delegate found that he provided the following (claimed) incorrect answers in the online ENS visa application form lodged on13 February 2017:

    ·    In the form 1221 Additional Personal Particulars Information, which he 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.

24. The delegate noted that on 30 September 2020 the applicant was granted a Resident Return visa, which had the effect of ceasing and replacing his ENS visa granted on 22 November 2017. He also noted that on 20 October 2020 the applicant was granted a further Resident Return visa, which had the effect of ceasing and replacing his Resident Return visa which was granted to him on 30 September 2020.

25. However, section 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 cancellation of the current Resident Return visa granted on 20 October 2020.

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

27. The applicant’s representative has responded to the delegate as follows:

    Reasons why the visa holder does not agree there was non-compliance in the NOICC response, dated 3 November 2020:

    ·    The Nominator business was located at and 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.

    · He has 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 s.146 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.

    Further Applicant Response to the Tribunal (post Hearing) Concerning Non-Compliance

24. We write in response to the s.375A certificate dated 13 September 2021 (Appendix A) and provide the following submissions in response.

1. Based on correspondence with the delegate (‘Warren’) from the Department of Home Affairs (‘the Department’), it was confirmed that the ground for cancellation solely concerned the one specified in the Notice of Intention to Consider Cancellation (NOICC) and ultimately the Notice of Cancellations issued to the Applicants’ (Appendix B) under section 109 of the Migration Act 1958 (‘the Act’).

2. The sole ground for cancellation relied on information obtained through departmental checks that Falcon Accounting Services Pty Ltd – ABN: 94161355406 (‘the Nominator’) has never been located or operated from the address 3/383-385 Church Street, Parramatta NSW 2150. Though the existence of other particulars may have indicated stronger grounds for considering visa cancellation, this was not opted for by the delegate here.

4. In order to enliven the discretion to cancel under s.109 of the Act, the delegate must issue a s.107 notice outlining the particulars relating to the possible non-compliance and providing an opportunity for the applicant(s) in question to respond. They must then consider the information provided to determine whether there was non-compliance ‘in the way described by the notice’. Consequently, any information that was not particularised in that notice cannot be relied upon as the ground for cancellation.

5. In the Applicants’ case, the information contained in the notification of cancellation and the s.375A certificate is only relevant to the extent that such information was particularised in the original s.107 notice.

6. The delegate in this matter attempted to expand his s.107 notice by issuing an Invitation to Comment under s.120 of the Act on 24 May 2021. It must be noted that the power to issue an invitation to comment under s.120 is only held by s.116 delegates.

7. The delegate in question opted to proceed under s.109 and as such, any further information that was not particularised in the s.107 notice (including that referred to in the s.375A certificate) is not relevant to the ground for cancellation being considered here.

8. We reiterate that based on the information presented both in written and oral submissions confirms that there has not been a non-compliance with section 101(b) of the Act and consequently, the Applicants’ visa should not be cancelled.

Was there non-compliance as described in the s 107 notice?

1. 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) in the following respects: because the applicant provided the following incorrect answers in the online ENS visa application form lodged 13 February 2017:

   ·In the form 1221 Additional Personal Particulars Information, which he 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.

2. The Tribunal has had the benefit of speaking to the applicant in the hearing regarding this issue and has received further information from the applicant’s representative.

3. It appears from further investigation by the Tribunal and additional information provided that the delegate appears to have relied for his finding on incorrect information provided by the leasing agent. It appears that, instead of going directly to the principal of the accountancy business ‘Falcon Accounting Services Pty Ltd’ (aka the Nominator) to establish the facts of the applicant’s tenancy of the claimed premises - the delegate chose to approach the leasing agent and rely on his information. There appears to have been, for instance, no “site visit” to ascertain the facts.

4. The Nominator has provided a Statutory Declaration contradicting the findings of the delegate and the claims of the leasing agent. To support his contradiction of the delegate’s findings the Nominator has provided photographs of the premises elaborating the existence of the various companies leasing the premises. The Tribunal, on balance, prefers the representative’s evidence and has concluded that the information provided by the applicant was not incorrect.

   Conclusion on non-compliance

5. 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

6. 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.