Guruge (Migration) - [2024] AATA 1012

Guruge (Migration) [2024] AATA 1012 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Kushika Kalpani Guruge
Mr Chulantha Perera Kirikankanange
Master Bivon Vindiv Perera Kirikankanange
REPRESENTATIVE:  Mr Dinesh Weerakkody
CASE NUMBER:  2206790
HOME AFFAIRS REFERENCE:               BCC2021/2081055
MEMBER:Antonio Dronjic
DATE:11 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 11 April 2024 at 3:12pm
CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – visa previously refused on the basis of a failure to satisfy PIC 4020(1) – waiver of requirement – compelling circumstances affecting the interests of Australia – Laboratory Technical Officer – compelling circumstances affecting the interests of Australian citizens – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 190.216, 190.311; Schedule 4, PIC 4020
CASES
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 April 2022 to refuse to grant the applicants Skilled Nominated (Permanent) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 1 November 2021. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of Public Interest Criterion (PIC) 4020(2) for the purposes of cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
According to the primary decision record submitted by the applicants with their review application, on 31 October 2019, the applicant was refused a student visa, Subclass 500 for failure to meet PIC 4020(1).
As the current visa application was lodged at the Department on 1 November 2021, the delegate found that PIC 4020(2) is engaged. The delegate further found that waiver criteria as per PIC 4020(4) were not met and proceeded to a decision on 27 April 2022.
The applicants lodged the applications for review with the Tribunal on 10 May 2022 and with their applications submitted a copy of the primary decision record.
On 15 February 2024, the Tribunal wrote to the applicants advising them that it had considered material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a video hearing on 4 April 2024.
On 27 March 2024, the applicants’ representative provided documentary evidence and submissions. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.
The applicants appeared before the Tribunal on 4 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Kylie Maree Duan, the applicant’s supervisor, Mr Lee Bullock, a person to whom the applicant provided disability services support, and Mr Nishantha Sangakkara, a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guruge (Migration)

Details

AGLC: Guruge (Migration) [2024] AATA 1012
Case: [2024] AATA 1012
Decision Date: 11 April 2024

CaseChat Overview and Summary

This matter concerned an application for a Skilled Nominated (Permanent) visa (Subclass 190). The applicant, Kushika Guruge, sought review of a decision to refuse her visa application. The primary issue before the Tribunal was whether the applicant met the criteria outlined in Public Interest Criterion (PIC) 4020, specifically concerning previous visa refusals based on providing false or misleading information or bogus documents.

The Tribunal was required to determine whether the applicant had provided any bogus documents or false or misleading information in relation to her current or previous visa applications. It also had to consider whether the applicant had previously been refused a visa due to a failure to satisfy PIC 4020(1) within the specified timeframes. Furthermore, the Tribunal needed to assess if any of the requirements of PIC 4020(1) or (2) could be waived based on compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen.

The Tribunal found that there was no evidence that the applicant had provided a bogus document or false or misleading information in relation to her current application. However, it was satisfied that the applicant had previously been refused a visa due to a failure to satisfy PIC 4020(1). The Tribunal considered the provisions for waiving these requirements under PIC 4020(4) but concluded that the circumstances presented did not meet the threshold for such a waiver. The Tribunal also affirmed the decision not to grant visas to the second and third named applicants, finding they did not meet the secondary visa criteria as family members.

Consequently, the Tribunal affirmed the decision not to grant the Skilled Nominated (Permanent) visas to the applicants.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the applicant meets PIC 4020 as required by cl 190.216 for the grant of the visa. Broadly speaking, this requires that:·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and·the applicant satisfies the Minister as to her identity: PIC 4020(2A); and·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA). The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in Attachment B to this decision.Has the applicant given, or caused to be given, a bogus document or information that is false or misleading in a material particular? There is no evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to her application for a Subclass 190 visa or in relation to a visa that the applicant held in the period of 12 months before the application was made. Accordingly, the Tribunal finds that the applicant meets the requirements of PIC 4020(1).Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)? PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). Based on the evidence before it, including the applicant’s oral evidence, the Tribunal is satisfied that the applicant has been refused a visa because of a failure to satisfy the criteria in PIC 4020(1) during the period starting 3 years before the application for a Subclass 190 visa was made (on 1 November 2021) and ending when the Minister made a decision to refuse the application (on 31 October 2019). Should the requirements of PIC 4020(1) or (2) be waived?

Decision

Reasons for decision

The Tribunal must also affirm the decision not to grant the second and third named applicants Subclass 190 visas, as it finds that they do not meet the secondary visa criteria in cl 190.311 to be members of the family unit of a person who holds a Subclass 190 visa, and there is no evidence that they meet the primary visa criteria in their own right.DECISION The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.Antonio DronjicMemberATTACHMENT A: DOCUMENT LIST·Representative’s submissions from Dinesh Weerakkody of D Legal dated 27 March 2024.·Royal Australasian College of Physicians article dated 19 March 2024. ·Kushika Guruge CV undated.·Letter of support from Pip Rose of Hobart Pathology dated 21 February 2024.·Letter of support from Kylie Duan dated 7 March 2024.·Letter of support from Majestic Care Pty Ltd dated 5 March 2024 signed by Nishantha Sangakkara.·Letter of support from Adorable Care Pty Ltd dated 5 March 2024 signed by Nishantha Sangakkara.·Letter of support from Lee Bullock, in receipt of support by Happy Hands home care dated 28 February 2024. ·Proof of donation to Starlight Children’s Foundation dated 25 February 2024.·Proof of payment to Starlight Children’s Foundation dated 5 March 2024.·Australian Institute of Medical and Clinical Scientists Membership Certificate undated.·Chulantha Kirikankanange (spouse) volunteer documents dated 24 March 2021.·Letter of support from Syed Tariq of Ampol dated 3 March 2024. ·Confirmation of employment dated 1 March 2024.·Blood donor card for Kushika Guruge undated.·Diploma of Community Services dated 16 June 2023. ATTACHMENT BMigration Regulations 1994Schedule 44020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:(a)the application for the visa; or(b)a visa that the applicant held in the period of 12 months before the application was made.(2)The Minister is satisfied that during the period:(a)starting 3 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(2A)The applicant satisfies the Minister as to the applicant’s identity.(2B)The Minister is satisfied that during the period:(a)starting 10 years before the application was made; and(b)ending when the Minister makes a decision to grant or refuse to grant the visa;neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:(a)compelling circumstances that affect the interests of Australia; or(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;justify the granting of the visa.(5)In this clause:information that is false or misleading in a material particular means information that is:(a)false or misleading at the time it is given; and(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.…Migration Act 1958s 5 Interpretation(1) In this Act, unless 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.…

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.