Hangili Naidelage (Migration) [2024] AATA 2248 (20 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Lal Jayananda Hangili Naidelage
Ms Thushari Priyadarshani Yagoda Yagoda Acharige
Mr Kavishka Shehan Jayananda Hangili Naidelage
Mr Ishila Shehan Jayananda Hangili Naidelage
Mr Sashika Shehan Jayananda Hangili NaidelageREPRESENTATIVE: Mr Li Dennis Shen
CASE NUMBER: 2207849
HOME AFFAIRS REFERENCE(S): BCC2019/6626608
MEMBER:George Hallwood
DATE:20 June 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal remits the applications for Business Skills (Provisional) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 188 - Business Innovation and Investment (Provisional) visas:
·Public Interest Criterion 4020 for the purposes of cl 188.213 of Schedule 2 to the Regulations
Statement made on 20 June 2024 at 12:34pm
CATCHWORDS
MIGRATION – Subclass 188 (Business Innovation and Investment (Provisional)) visa – Subclass 188 – Public Interest Criterion 4020 – applicant has provided, or caused to be provided, a bogus document or false or misleading information – altered photographs are counterfeit meeting the definition of ‘bogus document’ – compassionate circumstances – childhood bond between Sashika and his best friend - requirements of PIC 4020(1) should be waived – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, Schedule 2, cl 188.213
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2014] FCA 1276
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
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 11 May 2022 to refuse to grant the applicants Business Skills (Provisional) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicants applied for the visas on 12 December 2019. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 188.213 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because “there is evidence before the Minister that the applicant has provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application”.
3. The applicants appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ashan Sudrikku. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.
4. The applicant requested further time post hearing to provide submissions. This was granted by the Tribunal.
5. The applicants were represented in relation to the review.
6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 188.213 for the grant of the visa.…
Continue reading Hangili Naidelage (Migration)
Sign in free to access the full text
- AGLC
- Hangili Naidelage (Migration) [2024] AATA 2248
- Case
- [2024] AATA 2248
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Minister's decision to refuse the visa application, due to the applicant's failure to satisfy PIC 4020(1) by providing counterfeit documents, was affected by an error of law. This involved determining whether the circumstances presented by the applicant, including a claimed childhood bond between a person named Sashika and his best friend, constituted sufficient compassionate circumstances to warrant a waiver of the PIC 4020(1) requirement.
The court reasoned that the altered photographs clearly fell within the definition of a "bogus document" as contemplated by PIC 4020(1). However, the court considered the applicant's submission regarding compassionate circumstances. It found that the presented information, particularly concerning the childhood bond, was capable of being considered as a factor in favour of waiving the PIC 4020(1) requirement. The court concluded that the decision-maker had failed to adequately consider these compassionate circumstances.
Consequently, the court set aside the Minister's decision and remitted the matter to the Minister for reconsideration according to law.
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
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.