In this case, Mr M. K. engaged our assistance in responding to a Notice of Intention to Consider Cancellation (“NOICC”) of his subclass 189 Skilled – Nominated Visa. The Department of Immigration and Border Protection (“the Department”) alleged that Mr K had not complied with ss 101 and 103 of the Migration Act 1958 (Cth) (“the Act”) by providing incorrect answers and bogus documents in support of his application for a subclass 189 visa.
In order to obtain a subclass 189 visa, one of the criteria to be satisfied is that the visa applicant must achieve a required number of points, which are awarded on the basis of factors such as age, English language ability, skilled employment and qualifications. To support his application, Mr K. provided a number of documents evidencing his employment for a company (“the Company”) which was awarded 5 points. Mr K received a total of 65 points (the number of points needed to satisfy the points test was 60 at the time) and was subsequently granted a subclass 189 visa in January 2014.
The Department later received contrary information indicating that Mr K did not hold the work experience claimed in his application. In September 2016, a Departmental officer was unsuccessful in verifying Mr K’s employment with the Company based on the fact that the Company’s phone number was out of service and that a check for the Company name on the official Government of India – Ministry of Corporate Affairs (“MCA”) website revealed no results. It was on this basis that the Department issued a NOICC to Mr K.
In our response letter, we addressed each point raised by the Department in thorough detail and provided substantial evidence to submit that there was inconclusive evidence to assert that Mr K’s work experience with the Company was false. Firstly, we submitted that the mere fact that the phone number was out of service in September 2016 was in no way indicative that the phone number never existed or belonged to the company in 2008 when the work reference letter was provided. The Department’s investigation took place 8 years after the work reference letter was provided, and in that period of time, the Company may have changed its phone number or ceased operation.
In relation to the company name check on the MCA website, we conducted our own independent investigation which confirmed that the MCA website appeared to only show currently registered companies, meaning that it was only capable of determining that the Company was not registered on the day of the search. We further submitted that the Company could be operating in sole proprietorship where registration is not necessary, or simply operating without a registration at all.
Our submission was successful and the Department found that as there was no valid ground for cancellation, Mr K’s subclass 189 visa was not cancelled.
