Dunusinghe Gedara (Migration)

[2023] AATA 3520

Dunusinghe Gedara (Migration) [2023] AATA 3520 (2 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ranil Dhammika Dunusinghe Gedara
Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara
Master Nethum Siththaru Dunusinghe Gedara
Master Riyon Neththaru Dunusinghe Gedara

REPRESENTATIVE:  Mr Don Susantha Katugampala

CASE NUMBER:  2110016

HOME AFFAIRS REFERENCE(S):          CLF2019/10214

MEMBER:Joseph Francis

DATE:2 October 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 02 October 2023 at 2:54pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –deliberately mislead the Tribunal by providing false evidence– visa applicant has not cared for the sponsor as claimed – applicant has not demonstrated that the assistance required by the sponsor cannot be provided by her relatives in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 376

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.221, 836.321

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 on 21 July 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 15 March 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221

3. The delegate refused to grant the visas on the basis that cl 836.221 had not been met at the time of the delegates decision because they were not satisfied that regulation 1.15AA(1)(e)(i) had not been met.  This regulation requires the applicant to demonstrate the assistance cannot reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

4. The applicants appeared before the Tribunal on two occasions.  A first hearing was scheduled for 17 January 2023 and was postponed at the applicant’s request.  This first hearing was held on 27 February 2023.

5. At the first hearing the Tribunal heard oral evidence from:

   ·     The visa applicant, Mr Ranil Dhammika Dunusinghe Gedara

   ·     The visa applicant’s wife, Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara

   ·     The daughter of the sponsor, Mrs Nilanka Hewavithara

   ·     Mrs Nilanka Hewavithara’s husband (being the son-in-law of the sponsor), Mr Janaka  Hewavintharana.

6. A second hearing was then scheduled for 19 July 2023 and was again postponed at the applicant’s request.  The second hearing was then held on 9 August 2023.

7. At the second hearing, the Tribunal heard further oral evidence from:

   ·     The visa applicant Mr Ranil Dhammika Dunusinghe Gedara

   ·     The visa applicant’s wife, Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara

8. Both Tribunal hearings were conducted with the assistance of an accredited interpreter in the Sinhala and English languages. The Tribunal ensured that the interpreter and witnesses could understand each other prior to taking evidence.  Whilst the majority of the evidence was provided in English, the interpreter was used on an ad hoc basis.  The Tribunal ensured that witnesses understood that if there were any doubts whatsoever about questions, answers or evidence, that they could be repeated, rephrased or assisted by the interpreter. There were no issues raised at either hearing with regard to the accuracy of the interpretation.

9. The applicants were represented in relation to the review. The applicant’s solicitor, Mr Don Sustantha Katugampala (Victoria) attended both hearings in person.  The Tribunal provided significant leniency in allowing Mr Katugampala to raise question and make suggestions throughout the hearings.

10. For the purpose of this review, The ‘resident’ referred to within the definition of Carer at regulation 1.15AA is also the sponsor, Sumanawathy Perera Malgamwilage Dona.

11. For the following reasons, the Tribunal has concluded that the matter under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the care required by the sponsor can be provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

    Whether the applicant has claimed to be the ‘carer’

13. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s aunt, being the visa sponsor.

14. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

    S376 Certificate

15. The department file contained a s376 Certificate with regards to information that had been submitted in confidence regarding the visa applicant.  The Tribunal, having assessed the certificate, determined it was valid. During the first hearing, the Tribunal provided the applicant with a copy of the certificate and provided the opportunity to comment on the validity of it.  There were no submissions made with regards to the validity of the certificate.

16. The certificate was issued because the disclosure of the information would be contrary to the public interest because it may disclose or enable a person to ascertain the existence of a confidential source of information.

17. As such, the Tribunal only put the gist of part of the information to the applicant and the witnesses, that being the applicant did not in fact care for the sponsor but in fact worked significant hours at a car wash in contravention of the applicant’s visa conditions.

18. The applicant was provided the opportunity to consider his reply to this information, both during the first hearing, and after the first hearing.

19. On 28 February 2023 the Tribunal wrote to the applicant in accordance with s359A inviting comment on the evidence that was provided at the first hearing.

20. On 3 March 2023 the applicant requested an extension of time to reply to this invitation, which was granted.

21. On 28 March 2023 the Tribunal received four signed Statutory Declarations outlining each witnesses reply and explanation as to the evidence provided at the first hearing.

22. In addition to the information provided to the department, the following documents were provided to the Tribunal:

    ·     Linkedin profile screenshot of Nevin Jayawadena, undated, claiming that due to his employment he cannot assist in providing care to the sponsor.

    ·     Social media screenshot of Nevin Jayawadena, undated, claiming that due to his employment as a footballer he cannot assist in providing care to the sponsor.

    ·     Social media screenshot of Sharon De Silva, dated 6 July 2019, indicating she is married to Danial De Silva

    ·     Social media screenshot of ‘Blooming Bunches’, dated 23 December 2022, indicating Nishan Jayawardane’s family business.

    ·     Social media screenshots of Nishan Jayawardena, indicating the family travel overseas for family holidays.

    ·     Social media screenshots of Nishan Jayawarena, depicting various family gatherings and claiming he had not invited his mother to any events.

    ·     Photographs of the visa sponsor, undated, claiming that she is a Buddhist and that Nishan Jayawarena is a Catholic, and therefore she requests the visa applicant take her to the temple.

    ·     Photograph of visa applicant and sponsor, undated and without context.

    ·     Medical Certificate from Oncology West dated 26 October 2015 for Mrs Nilanka Hewavitharana.

    ·     Appointment times for Oncology West treatment for Mrs Nilanka Hewavitharana during 2022.

23. At the commencement of the hearing, each witness was asked to make a promise to tell the truth to the Tribunal during the hearing.  Each witness was asked if they understood that requirement, and each witness stated that they did.  During the hearing, the Tribunal reminded each witness of the requirement to be truthful about their answers.

24. The Tribunal requested the witnesses be separated and wait outside the hearing room until they were required.

25. Mr Ranil Dhammika Dunusinghe Gedara, the visa applicant, provided oral evidence outlining in detail the layout of the house that all witnesses and the sponsor reside in.  Mr Gedara also detailed his daily routine of providing care for his aunt every day other than one day per week when he plays cricket.  Mr Gedara claimed that he makes breakfast, provides hygienic cleaning, further cooking, and almost daily routine care for his aunt.

26. The Tribunal specifically asked Mr Gedara multiple times if he was working, to which he continually denied. Likewise, Mr Gedara was reminded and acknowledged multiple times the requirement to be truthful.

27. The Tribunal provided Mr Gadara a copy of the s376 Certificate that was on the departments file and informed him that the Tribunal was of the view that the certificate was valid.

28. The Tribunal invited the applicant to comment on the validity of the certificate, to which there were no submissions. 

29. Given the nature of the information covered by the certificate, and in order to not provide any disclosure of the source of the information, the Tribunal only put the gist of Mr Gederas work routine to him, being that he did not care for his aunt like he had repeatedly claimed, but in fact worked approximately four days a week at a car wash. After changing his evidence a number of times as to when he finished working at the car wash and how often he had been working, the applicant eventually settled on working at a car wash approximately four days per week and playing cricket one day per week.

30. Considering the repeated claims by Mr Gedara that his almost daily routine was to reside with his aunt and provide most of the care for her, it is clear that this was not the case.

31. The Tribunal was not so much concerned that Mr Gedara was working in contravention of his visa conditions, but that he was not caring for the sponsor since 2019 as claimed.  More importantly to this, it raises the question of what other family members are providing the care, considering the fundamental basis of the visa application was that there were no other family members available.

32. Considering the continued deliberate attempt to mislead the Tribunal, and despite repeated reminders of the requirement to be truthful in his evidence, The Tribunal finds that Mr Ranil Dhammika Dunusinghe Gedara deliberately mislead the Tribunal by providing false evidence and is not a person of truth. The Tribunal places no weight on his evidence.

33. The Tribunal then invited the visa applicant’s wife, Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara, to provide oral evidence.  Mrs Gedara was also consistently reminded of the requirements to be truthful in her evidence.

34. When asked by the Tribunal, Mrs Gedara repeated the claims made by her husband as to the family living arrangements, daily care routine and also denied claims that her husband was working.  The Tribunal then put to her that her husband had already changed his evidence to the Tribunal, and at this point she also changed her evidence and confirmed that he did work at a car wash.

35. When question by the Tribunal as to who was actually providing care to the sponsor, Mrs Gedara provided evidence that the required care was being provided by the sponsor’s daughter.

36. Considering the continued deliberate attempt to mislead the Tribunal, and despite repeated reminders of the requirement to be truthful in her evidence, The Tribunal finds that Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara deliberately mislead the Tribunal by providing false information and is not a person of truth. The Tribunal places no weight on her evidence.

37. The Tribunal then invited the sponsor’s daughter, Mrs Nilanka Hewavithara, to provide evidence.

38. Mrs Nilanka Hewavithara was also consistently reminded of the requirements to be truthful in her evidence.

39. When asked by the Tribunal, Mrs Hewavithara repeated the claims made by Mr and Mrs  Gedara as to the family living arrangements, daily care routine and also denied claims that her Mr Gedara was working.  The Tribunal then put to her that Mr and Mrs Gedara had already changed their evidence to the Tribunal, and at this point she also changed her evidence and confirmed that he did work at a car wash.

40. When question by the Tribunal as to who was actually providing care to the sponsor, Mrs Hewavithara provided evidence that she was providing care to her mother, however she was unable to continue doing so due to her own medical challenges.

41. The Tribunal accepts as fact the evidence that Mrs Hewavithara faces medical challenges of her own, given documented medical evidence confirming her condition.

42. However, at the time of this decision the Tribunal is not satisfied that she cannot continue to provide care for her mother for some time into the future.

43. Considering the continued deliberate attempt to mislead the Tribunal, and despite repeated reminders of the requirement to be truthful in her evidence, the Tribunal finds Mrs Nilanka Hewavithara deliberately mislead the Tribunal by providing false information and is not a person of truth. The Tribunal places little weight on her evidence.

44. The Tribunal then invited the last witness, the sponsor’s son-in-law, Mr Janaka Hewavintharana.  Mr Hewavintharana provided oral evidence as to his employment in the Western Australian public sector, and how the senior position he holds and responsibility with work commitments which prevents him from assisting with the care required by his mother-in-law.

45. Mr Hewavintharana was also consistently reminded of the requirements to be truthful in his evidence.

46. When asked by the Tribunal, Mr Janaka Hewavintharana repeated the claims made by previous witnesses as to the family living arrangements and daily care routine, and also denied claims that the visa applicant was working.  The Tribunal then put to him that Mr Gedara, and the other previous witnesses had already changed their evidence to the Tribunal, and at this point he also changed his evidence and confirmed that he did work at a car wash.

47. When question by the Tribunal as to who was actually providing care to the sponsor, Mr, Janaka Hewavintharana provided evidence that the required care was being provided by his wife, the sponsor’s daughter.

48. When put to him, Mr Janaka Hewavintharana confirmed to the Tribunal that the four witnesses had discussed and deliberately decided together to provide false and misleading information to the Tribunal with regards to Mr Gedara’s work.

49. Considering the continued deliberate attempt to mislead the Tribunal, and despite repeated reminders of the requirement to be truthful in his evidence, The Tribunal finds that, Mr Janaka Hewavintharana deliberately mislead the Tribunal by providing false information and is not a person of truth. The Tribunal places no weight on his evidence.

50. The Tribunal finds this to be a serious and grievous attempt by four witnesses to provide false and misleading evidence to the Tribunal.

51. Following the hearing on 27 February 2023, the Tribunal wrote to the applicant on 28 February 2023 inviting them to comment on the oral evidence provided at the hearing.

    The particulars of the information are:

    Evidence given at the Tribunal hearing on 27 February 2023 by the primary visa
    applicant Ranil Dhammika Dunusinghe Gedara, secondary visa applicant
    Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara, and witnesses
    Janaka Hewavintharana and Nilanka Priyangi Perera, regarding the employment
    routine of the primary visa applicant and the level of care provided by the primary
    visa applicant.

    Evidence given by the secondary visa applicant Walpolage Sewwandi Priyanwada
    Perera Dunusinghe Gedara describing the level of care provided by the primary
    visa applicant; and

    Evidence given by witness Janaka Hewavintharana that suggested that the
    participants at the Tribunal hearing had met prior to the hearing to discuss
    providing evidence to the Tribunal that may be false or misleading.

    This information is relevant to the review because it may indicate that evidence
    presented at the Tribunal hearing on 27 February 2023 was false or misleading information in relation to the application for the visa.

52. The Tribunal provided until 15 March 2023 for the applicant to reply to the invitation to comment.

53. On 3 March 2023 the applicant’s representative requested an extension of time to reply to this invitation.  The Tribunal granted an extension of time until 28 March 2023 to reply to the invitation.

54. On the 28 March 2023 the Tribunal received four Statutory Declarations in reply to the invitation, one from each witness who provided evidence at the first hearing:

    ·     Mr Ranil Dhammika Dunusinghe Gedara, of 16 Buvelot Turn, Southern River, dated 26 March 2023.

    ·     Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara, of 16 Buvelot Turn, Southern River, dated 26 March 2023.

    ·     Mrs Nilanka Hewavithara, of 16 Buvelot Turn, Southern River, dated 26 March 2023.

    ·     Mr Janaka Hewavintharana, of 16 Buvelot Turn, Southern River, dated 26 March 2023.

55. Each of these declarations, while similarly worded, acknowledged and provided an apology to the Tribunal for each witness for deliberately providing false and misleading evidence to the Tribunal during the hearing.

56. The declaration from the visa applicant, Mr Gedara, claimed that only on 28 February 2023 he stopped undertaking any form of work or employment.  The Tribunal notes that this is one day after the hearing, again indicating further evidence provided at the hearing on 27 February was false and misleading.  Additionally, this statement continued to make the claim that whilst Mr Gedara had ceased work on 28 February 2023, he was also effectively the major daily care giver for the sponsor since 2019.  Given eventual contrary evidence by his own wife at the first hearing, along with the impossibility of someone being at work and providing care at the same time, I place no weight on this evidence.

57. In particular, there is significant concern with the acknowledgement from the visa applicant that he had asked his family to deliberately provide false evidence to the Tribunal.

58. The Tribunal also received medical evidence indicating Mr Janaka Hewavintharana also has a medical condition, which the Tribunal accepts.  However, the Tribunal has no evidence as to what limitations that places on his ability to contribute to the care of the visa sponsor.

59. Further evidence to support the claim that the sponsor’s daughter, Mrs Nilanka Hewavithara, continues to have her own medical condition was also submitted.  This is not disputed by the Tribunal. 

60. However, no further credible evidence was received as to why the sponsor’s other adult child, Mr Nishan Jayawardena, who resides nearby could not provide care to his mother.  It was submitted in oral evidence at the first hearing that Mr Nishan Jayawardena was somewhat estranged from his mother.  However, at the second hearing the Tribunal was also told they are now in contact with each other.  Regardless of significant credibility concerns held by the Tribunal, this issue is pivotal in determining this matter.

1. Given the limited evidence to support this claim, being predominantly screen shots of social media photos and the fact that the Tribunal places no or little weight on any of the evidence provided by the witnesses to support this claim, the Tribunal is far from satisfied that Mr Nishan Jayawardena cannot provide care and support to his mother.

2. This finding is significant in this decision by the Tribunal to affirm the application.  Given there is no credible evidence before the Tribunal to demonstrate that a son of the sponsor, Mr Nishan Jayawardena, cannot provide care to his mother, The Tribunal cannot be satisfied that regulation 1.15AA(1)(e)(i) is met.

3. The Tribunal held a second hearing on 19 July 2023, with only the visa applicant and his wife providing oral evidence.

   ·     The visa applicant, Mr Ranil Dhammika Dunusinghe Gedara

   ·     The visa applicant’s wife, Mrs Walpolage Sewwandi Priyanwada Perera Dunusinghe Gedara

4. The Tribunal again ensured both witnesses understood the requirement to provide truthful evidence.

5. The Tribunal asked Mr Gedara to confirm where he lived.  Mr Gedara informed the Tribunal that he did not live at 16 Buvelot Turn, Southern River, but in fact lives in a house close by at 6 Tanga Close, Southern River, and had done so since 2019.  This indicates that all of the evidence provided at the first hearing that detailed the lay-out and living arrangements of the family at 16 Buvelot Turn was also deliberately misleading.

6. Following the second hearing on 19 July 2023, Mr Gedara provided a further Statutory Declaration to the Tribunal dated 14 August 2023.  This statement clarified that Mr Gedara does not reside with the visa sponsor as previously claimed.

7. Mr Gedara also claimed that the current living arrangements were temporary until another house was built for his brother-in-law, at which time he will move into his aunt’s house with his family.  The Tribunal received house plans and contracts indicating the future build of his brother-in-law’s new house.

8. While Mr Gedara’s brother-in-law may well be building a new house, the Tribunal places no weight on the claim Mr Gedara intends to move into his old house and care for his aunt. 

9. This statement also states that there is evidence that there is no suitable or alternative carer available within the family nor any viable support externally who can provide the very specific care required for his aunt.

10. Given the limited evidence to demonstrate that another family member cannot provide the care, or that other care options have been explored, The Tribunal is not satisfied that the care cannot be provided by other sources.  In summary, there are five issues of concern:

    ·The evidence by Mr Gedara’s wife that the sponsor’s daughter was providing care for her mother

    ·Claims in the declaration that Mrs Gedara was also providing care

    ·Confirmation that the applicant has resided at a different address since 2019

    ·Confirmation that the applicant was working until 28 February 2023, and

    ·The significant credibility issues of the applicant witnesses.

11. As such, the Tribunal finds that the visa applicant has not cared for the sponsor as claimed.  Likewise, I am far from convinced that he has any intention to care for her in the future.

12. Further I am not satisfied that other family members, including Nishanta Jayawardena who resides nearby, cannot provide care to the resident, even on a collective basis with the daughter who also resides with her.  As such the Tribunal finds that the applicant has not demonstrated that the assistance required by the sponsor cannot be provided by her relatives in Australia.

13. Consequently, the Tribunal finds that the requirements within sub regulation 1.15AA(1)(e)(i) within the definition of ‘carer’ is not met.

14. As such, the Tribunal finds that regulation 1.15AA(1)(e) within the definition of ‘carer’ are not met either at the time of application or time of decision.

15. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    Dependent Applicants

16. The Tribunal notes that there are three dependent applicants to this visa application, being the spouse of the visa applicant and their two children:

    ·     Mrs Walpolage Sewwandi Priyanwada Perera DUNUSINGHE GEDARA

    ·     Nethum Siththaru DUNUSINGHE GEDARA

    ·     Riyon Neththaru DUNUSINGHE GEDARA

17. The Tribunal accepts it has been demonstrated that these dependent applicants are the spouse and children of the primary applicant.

18. As the Primary applicant did not satisfy the criteria for the grant of a Carer subclass 836 visa, the dependent applicants are each unable to satisfy Clause 836.321 in Schedule 2 of the Migration Regulations.

19. No claims have been made and there is no evidence to suggest any dependent applicant is able to meet the primary criteria for the grant of a Carer (residence) (BU 836) visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Joseph Francis
    Member

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

    (a)the applicant is a relative of the resident; and

    (b)according to a certificate that meets the requirements of subregulation (2):

    (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

    (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

    (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

    (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

    (e)the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia; and

    (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

    (2)A certificate meets the requirements of this subregulation if:

    (a)it is a certificate:

    (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

    (ii)signed by the medical adviser who carried it out; or

    (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

    (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.