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

1. 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).

2. 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).

3. 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).

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 family friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

9. Ms Guruge is 40 years of age and a citizen of Sri Lanka. She is married and has a child who is 8 years of age and is attending primary school. She first came to Australia in June 2012 as a holder of a student visa.

10. Between June 2012 and June 2014, she completed a Diploma of Laboratory Technology (Pathology testing). By June 2017, she had completed a Bachelor of Medical Science degree at Western Sydney University, majoring in Biomedical Science. After completion of her degree, the applicant enrolled in and completed a Diploma of Leadership and Management (in June 2020) and Diploma of Community Services (in June 2023).

11. The applicant worked as a disability support officer/carer for Happy Hands home care between February 2020 and October 2021. Despite being employed on a full-time basis, she continues to provide volunteering services and counsel to Mr Lee Bullock once per week.

12. From November 2020 to December 2021, she was employed as a Technical Assistant at Hobart Pathology, Calvary Hospital Laboratory, Biochemistry and Haematology Department. From May 2022 she has been working as a full-time Technical Officer at Hobart Pathology.

13. Her husband, Mr Kirikankanange, commenced employment as a Customer Service Assistant at Ampol Tasmania in March 2020 and was promoted to Retail Store Manager in September 2022.

14. The Tribunal explained to the applicants the requirements of PIC 4020(2) and cl 190.216. The Tribunal acknowledged that the applicants’ representative in his submissions of 27 March 2024 did not dispute that the current visa application is affected by PIC 4020(2). The applicant conceded this point.

15. The Tribunal noted that the applicants sought a judicial review of the Tribunal’s decision of 20 May 2021 affirming the primary decision related to her student visa. The Tribunal further noted that a directions hearing was held in November 2021 and enquired with the applicants’ representative as to whether any progress had been made in respect of that judicial review application. The representative informed the Tribunal that they are still waiting for the hearing date.

16. The Tribunal explained the requirements of PIC 4020(4) and noted that the applicants’ representative provided submissions and documentary evidence relevant to the assessment of waiver provisions. Ms Guruge confirmed in her evidence that she had read and understood the representative’s submissions.

17. Ms Guruge stated that she is primarily seeking waiver based on her current employment as a Laboratory Technical Officer. She added that, despite not working as a disability support officer/carer at Happy Hands home care since October 2021, she continues to provide help to Mr Bullock once per week on a voluntary basis. When questioned, she stated that Mr Bullock receives 24-hour care from his new disability support officers.

18. The Tribunal observed that in his letters, Mr Sangakkara stated that he would like to expand his disability support services business to Tasmania and that he is offering the applicants partnership in the business. When questioned, the applicant stated that she did not set up any business in Tasmania or apply for an ABN. The Tribunal enquired as to how would she run this business considering her full-time employment as Laboratory Technical Officer. She stated that she would not cease her employment as Laboratory Technical Officer.

19. When questioned, the applicant gave evidence that she has not applied for any other visa since the 3-year ban ended on 30 October 2022. She did not submit a new expression of interest for a skilled visa and her current employer did not nominate her for the position within the business either on a permanent or temporary basis.

20. In her evidence, Ms Duan confirmed that she provided a letter dated 7 March 2024 and that everything stated in that letter is true and correct. She gave evidence that she is and has been Ms Guruge’s supervisor since 2021 and reiterated that the applicant is a valuable and competent member of her team.

21. The witness stated that she re-hired Ms Guruge in May 2022 and promoted her to a position of Technical Officer with the Biochemistry department. She stated that the business currently employs 5 laboratory technicians on a full-time basis and one on a casual basis.

22. Ms Duan reiterated that the business will be adversely affected if the applicant is no longer able to work there. When questioned why the business did not sponsor the applicant for a temporary or permanent visa in Australia, the witness stated that the business has a policy not to sponsor overseas workers.

23. In his evidence, Mr Bullock confirmed that he provided a written statement dated 28 February 2024 and that everything stated in that letter is true and correct. He added that, despite being provided 24-hour carer services, Ms Guruge is still visiting him once per week as a volunteer. He reiterated his support for the applicant.

24. In his evidence Mr Sangakkara stated that he is a General Manager at NDIS-registered service provider Adorable Care Pty Ltd established in 2019 and Director at NDIS-registered service provider Majestic Care Pty Ltd established in 2021.

25. He confirmed that he provided two letters dated 5 March 2024 to the Tribunal (from Adorable Care Pty Ltd and Majestic Care Pty Ltd) and that everything stated in those letters is true and correct. He first met the applicants in 2012 through a common friend. Ever since, Mr Sangakkara has remained in a friendly relationship with the applicants.

26. The witness reiterated that he is looking forward to expanding the business operations to Tasmania within the next 6 months and is willing to engage the applicants as partners. When questioned, the witness gave evidence that neither the applicant nor her husband ever worked at Adorable Care Pty Ltd or Majestic Care Pty Ltd. He further stated that no business or ABN was registered in Tasmania at this stage. He is willing to offer partnership to the applicants because he believes that they are friendly, reliable, trustworthy, kind-hearted and empathetic people. He added that they have been friends for more than 10 years.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. 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).

29. 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?

30. 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.

31. 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)?

32. 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).

33. 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?

34. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

35. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

36. In deciding whether to waive PIC 4020(2), the Tribunal did not consider how its decision will affect the applicants as only the circumstances affecting Australia, Australian citizens or permanent residents or eligible New Zealand citizens, are relevant for the Tribunal’s consideration of PIC 4020(4). Although the Tribunal is not bound by policy, it has had regard to the elements emphasised in PAM3 in terms of the exercise of discretion.

37. In his submissions of 27 March 2024, the applicants’ representative submitted that:

    The applicant is well qualified in the field of Medical Science and has special diplomas in the field of laboratory technology and pathology, as well as being a Member of the Australian Institute of Medical and Clinical Scientists. Her qualifications have allowed her to work and be well sought after in her relevant field and she has been actively employed and played a vital role during the Covid – 19 pandemic, when there was a severe shortage of laboratory skills. She worked at Calvary Hospital - Calvary Pathology site (Diagnostic Pathology-Tasmania) during the COVID-19 outbreak and still works there.

    By supporting the medical laboratory facilities and being an integral part of the workforce, we accentuate that compelling and compassionate circumstances exist that affect the interests of the Australian economy and address the skill shortage in Tasmania.

38. In support of this claim, the applicants submitted a letter from Ms Duan (who also gave evidence at the hearing) and the Royal Australasian College of Physicians (RACP) media release calling on all relevant parties in Tasmania to commit to addressing the severe health care workforce shortage in the state.

39. It was submitted that Australia would miss out on a significant benefit of the applicant’s contribution to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought-after in Australia) if she was not granted the visa.

40. It was further submitted that:

    The applicant also provided high-quality care to Australians with disabilities and their families as a Disability Personal Carer under the NDIS.

    Holds a Diploma in Community Services, showcasing a commitment to the disability sector.

    She and her husband have been recognised and requested to join in as partners at Majestic Care and Adorable Care, which are reputed NDIS service providers based in Sydney that wish to extend their services to Tasmania in the following months due to the overwhelming demand for disability and carer services in the state.

    The applicant is eager to contribute her skills and drive their growth in the state with rising demand for disability and care services.

    Granting permanent residency would unlock the applicant's ability to become a full partner at these reputable organisations.

    Therefore, it is our professional and legal opinion that the above submission meets the criteria for compelling circumstances in Australia.

41. The applicants’ representative submitted that the following compassionate or compelling circumstances affect the interests of an Australian citizen:

    In the past, the applicant provided disability support care to Australian citizen;

    Despite not working as a disability support officer/carer at Happy Hands home care since October 2021, she continues to provide help to Mr Bullock once per week on a voluntary basis;

    The applicant is a valuable blood donor at Life Blood Australia and has also been an advocate for blood donation in her community; and

    The applicant and her spouse have recently started a commitment to provide monthly regular donations to Starlight Children’s Foundation Australia.

42. The Tribunal accepts that the applicant is and has been working as a Laboratory Technical Officer at Hobart Pathology and is considered to be a valuable and competent member of the team by her supervisor.

43. The Tribunal considered the media release from RACP and accepts that there is currently a shortage of qualified health care workers in Tasmania. The Tribunal further accepts that the business will be adversely affected if the applicant is no longer able to continue her employment.

44. Whilst accepting that it would be disadvantageous to an Australian business to lose the applicant as an employee, the Tribunal notes that the cost to a business of recruiting, training and replacing a staff member is an ordinary aspect of the operation of almost all businesses which occurs on an ongoing basis. Based on the evidence presented, the Tribunal is not satisfied that the applicant’s full-time employment as a Laboratory Technical Officer amounts to compelling circumstances affecting the interests of Australia that would justify the visa grant.

45. The Tribunal considered the applicant’s claim that she intends to set up a disability support services business in Tasmania in partnership with Mr Sangakkara and letters provided by Mr Sangakkara. The applicant gave evidence that, as of the day of the Tribunal hearing, she and her husband had not registered any business in Tasmania. The applicant failed to provide a meaningful explanation as to how she would operate the business and at the same time keep her employment as a full-time Laboratory Technical Officer.

46. Mr Sangakkara gave evidence that the applicant has never worked at his businesses and that he is looking to form a partnership with people he can trust in the next 6 months. The Tribunal finds that Mr Sangakkara is a family friend trying to help the applicant and her family stay in Australia and gives limited weight to his evidence. Even if the applicant commences a disability support services business in Tasmania in partnership with Mr Sangakkara sometime in the future, the Tribunal is not satisfied that such a circumstance would amount to compelling circumstances affecting the interests of Australia that would justify the visa grant.

47. The Tribunal accepts that Mr Bullock, an Australian citizen, who submitted his written statement, developed a close bond with the applicant and that it would be a loss to him if the applicant were not granted the visa. The Tribunal does not consider this to amount to compelling and compassionate circumstances that affect the interests of an Australian citizen, that would justify the granting of a Subclass 190 visa to the applicant.

1. Finally, the Tribunal accepts that the applicant is a blood donor and has donated to Starlight Children’s Foundation Australia.

2. Whilst the Tribunal has taken all of the evidence relevant to waiver provisions into account, both individually and cumulatively, the Tribunal is not satisfied that these circumstances amount to compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of Australian citizens, Australian permanent residents or eligible New Zealand citizens justifying the grant of the visa. Accordingly, the Tribunal has determined not to waive the requirements in PIC 4020(2).

3. Based on the above, the applicant does not satisfy PIC 4020 for the purposes of cl 190.216.

4. 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

5. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

   Antonio Dronjic
   Member

   ATTACHMENT 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 B

   Migration Regulations 1994

   Schedule 4

   4020(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 1958

   s 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.

   …