Hangili Naidelage (Migration)
[2024] AATA 2248
•20 June 2024
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. 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 his or 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).
8. 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 the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
9. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s 5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies 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: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
Background
The visa application that was refused in this matter is for a Business Innovation and Investment stream (Provisional) (subclass 188) visa and the application was lodged by the applicant with the Department on 12 December 2019. Amongst other things, for a subclass 188 visa to be granted in the Business Innovation stream, the applicant must have overall had a successful business career: cl 188.224.
In his visa application the applicant completed the ‘Employment history’ section which required him to ‘give details of employment undertaken in the last 10 years’. Two positions were listed: Sole Trader with employer name Hangili Naidelage Lal Jayananda in Sri Lanka from 13 May 2008 to 28 May 2013 - ‘Buying and selling of vehicles and selling imported vehicle spare parts’; and, Business Owner with Isila Trading International in Sri Lanka from 28 May 2013 to 2019 - ‘Buying and selling of vehicles and selling imported vehicle spare parts’.
On 16 December 2019 the Department requested more information. In relation to the first named applicant the request was to: ‘Submit all documents relevant to your application’; and, “Evidence of Functional English’.
On 13 February 2020 the applicant provided documents including a series of nine photographs in support of their application. The photographs were provided as genuine documents. The Department requested higher quality, digital, copies of the photographs. The Department found that the documents [photographs] purport ‘to show the premises of [the applicant’s] claimed main business “Ishila Trading International”’.
On 16 September 2021 the applicant’s representative responded to the 1 July 2021 request by the Department for the applicant to provide higher quality, digital, copies of the photographs. The applicant’s response stated:
The photos provided with the application were taken with the main applicant’s digital camera. The Camera and the memory card was left in their home when they came to Australia. Unfortunately the house was broken in to and most of their valuables together with the camera was stolen in the incident. (Statement but relative is attached) Therefore we are unable to provide the said photos.
An English translation of a report ‘In Connection with the Burglary’ dated 16 July 2021 signed by the Officer in Charge at the Narammala Police Station confirms the burglary at the applicant’s home in Sri Lanka during March 2021. An undated statement from the applicant details the background to the ‘initiation’ of his business but does not comment on the photographs.
In an invitation to comment on adverse information dated 7 March 2022 the Department stated:
These photographs were assessed, and concerns were raised based on the images. The first two of the nine photographs show the frontage of a building, while the seventh of the nine photographs shows a portion of the right hand side of the frontage of the same building in the first two photographs. Inspection of these photographs raises the following concerns indicating the photographs may have been altered:
·The first two photographs show the frontage of a building showing the text “ISHILA TRADING”. The text in both of these photographs appears to not be affected by the shadows cast upon the building by other objects.
·Behind the text in the first two photographs is a red and black background, this too appears to not be affected by the shadows cast upon the building by other objects.
·The text in the second photograph is aligned closer to the right hand side edge of the building than its position shown in the first photograph.
·The second photograph shows the right hand side of the white wall continues vertical in a straight line, while the first photograph appears to show a protrusion from the wall
·The reflection in the overhanging awning in the first two photographs does not show the text as may be expected
·The seventh photograph shows the far right portion of the frontage of the same building in the first two photographs, however there is no text, and no black and red background, where the first two photographs show there is.
On 2 February 2021 and 1 July 2021, you were requested to provide higher quality, digital, copies of the photographs. [The relevant photographs below as provided by the applicant have been inserted by the Tribunal because they were not within the text of the Department’s ‘Invitation to comment’].
Photograph 1
Photograph 2
Photograph 7
In a statement dated 26 April 2022 the applicant responded to the invitation to comment on adverse information letter of 7 March 2022. A relevant extract is set out below:
I will firstly confirm that the premises that was shown on the photographs included photographs taken at the office and motor vehicle lot location at 26th Mile Post, Kandy Road, Nittanbuwa, Sri Lanka. This has ordinarily been the location of R.P.N. International (Pvt) Ltd (also known as R.P.N. Car Sales). I used to work with this organisation, and it is where I picked up my skills and experience in automotive technology and vehicle parts repair and sales between 2008 and 2013 working as a Business Manager. To this day I still maintain an excellent relationship with the owner Mr Nayanajith.
Between April 2018 and November 2019, I rented the premises at R.P.N. Car Sales where I ran some of my business operations. With the agreement of the business owners, I was allowed to conduct my business of buying, repairing, importing and selling vehicles and car parts at the Kandy Road location. I will mention that I also operated out of my Narammala and Kiulvulla locations, which is land and property that I owned and which I will address as well.
In respect of the photographs, I acknowledge and admit that 2 photographs were altered, being the photographs bearing the Ishila Trading logo and insignia. The reason the photographs were altered was because I was at the time organising a new signboard bearing the Ishila logo to be installed, a process that was delayed for an extended time. Ahead of receiving the name board, the conceptual designs were made to observe how the name board was planned to be displayed once finished. At the time, the logo was actually still the R.P.N. Car Sales logo.
[…]
I want to let the Department know that it was not my intention to provide to the Department any document to suggest that I was not entitled to operate within the premises of the R.P.N. Car Sales location. Due to a matter of miscommunication, the conceptual designs were included in the business proposal and profile. It was poor judgement from my end not to have carefully reviewed the document to ensure that these photos were removed before submission to the Department. I did in fact have permission by the owner and director of R.P.N. Car Sales to deal with the lot and make alterations to my preference on the premises. At the time I did organise a new nameboard installation - an action that received full endorsement and agreement from Mr Nayanajith - and if this could have been organised without undue delays and issues in delivery, then I would not have had this issue at all. However, because of the delays in organising the signboard, unfortunately the conceptual photos were included in my documents rather than having an opportunity to show the signage with my own brand.
In retrospect, I believe that the photographs should not have been provided at all. I do not believe that the photos would have added much to my case and it was clearly not right to provide altered photos to the Department. I do confirm that everything else I have put to the Department is certainly true and correct. I did indeed run a business in car sales, imports, repairs and car part sales. All of the documents I have provided apart from the altered photographs are 100% legitimate, as I have supported them with proofs of my financial statements, Deeds of land purchase, Valuation Reports for my properties, statements from third parties I've dealt with, and invoice proofs for some of the sales I made.
The applicant does not dispute that two of the photographs provided to the Department on 13 February 2020 were digitally altered documents. The applicant told the Tribunal that these two photographs were artwork that he had obtained in order to determine what signage to put on the building in which he was operating a business.
The applicant said he started the business in about the fourth month of 2018. He told the Tribunal that he had no intention to submit bogus documents to the Australian Government, the photographs were simply artwork. The applicant stated that the artwork was produced to superimpose Ishira Trading onto the RPN background.
The Federal Court has commented that the Tribunal should first determine whether a document is a ‘bogus document’ as defined in s 5(1) of the Act, and then go on to consider whether there is no evidence that an applicant has given or caused it to be given to a party listed in 4020(1).[1]
[1] Salopal v MIBP [2018] FCA 1308 at [88].
Is there a bogus document?
The phrase ‘bogus document’ for the purpose of PIC 4020(1) is defined in s 5(1) of the Act.[2] Under s 5(1), a bogus document is one that the Minister reasonably suspects:
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.[3]
[2] s 5(1) as amended by Migration Amendment (Protection and Other Measures) Act2015 (Cth) (No 35 of 2015).
[3] In AIB16 v MIBP [2017] FCAFC 163 it was held that there is no relevant distinction, for the purposes of the definition of ‘bogus document’, between an ‘original’ and a copy of the same document: at [76].
Submissions dated 21 February 2024 and 12 April 2024 from the applicant’s representative have put to the Tribunal that no bogus documents have been given. In summary these submissions argue:
· Where a word may have more than one meaning, the interpretation that best fits with the statutory purpose and context ought to be favoured against other meanings including the ordinary meaning of the word;
· The term ‘counterfeit’ in relation to a document was introduced under the Migration Reform Act 1992 replacing the term ‘was forged or fraudulently altered’, with no clear or express indication in explanatory memorandum suggesting that there should be a contradistinction; therefore, preference should be given to a definition of counterfeit which incorporates some inherent level of falsity in the form of fraud or forgery;
· The applicant has clearly, consistently and logically explained the circumstances surrounding the provision of the altered photographs; this demonstrates there was no intentional deception intended by the applicant limiting the factual basis on which a bogus document exists;
· Had the applicant’s evidence been provided without the altered photographs the applicant’s ability to meet the criteria would unlikely have been affected; and,
· By not challenging, contradicting or further interrogating the evidence, the Tribunal has inferred that it accepts the evidence on face value and there was no intention / deception element.
Are the photographs counterfeit?
In the circumstances before the Tribunal the definition of bogus document requires that the Minister (in this case the Tribunal) reasonably suspects is ‘counterfeit’, and in the absence of a definition of the term ‘counterfeit’, applying the ordinary meaning of the word. Section 5(1)(b) of the Act is concerned with a document that is said to be genuine but is not genuine because the document is not actually what it claims to be. [4] While the applicant in this matter has confirmed that the two photographs he submitted in support of his application were digitally altered photographs, he has also told the Tribunal that he: had submitted the documents inadvertently as part of a number of documents in support of his application; had no intention of submitting bogus documents; had not intended to deceive the Department; and, had the documents not been given, it would have little or no impact on the eventual decision.
[4] Buksh v MICMA [2023] FedCFamC2G 817 at [80].
The Tribunal has considered but does not accept the submission from the applicant’s representative that in replacing the term ‘was forged or fraudulently altered’ with the term ‘counterfeit’ in the current definition of ‘bogus document’ it was the intention of the Legislature to retain all of the qualities of the original term. The Tribunal is satisfied that the two photographs (one and two in paragraph 17 above) are ‘counterfeit’ having regard to the word’s ordinary dictionary meanings (for example in the Macquarie dictionary) which includes ‘not genuine’ and ‘pretended’ and does not need to be reduced to one that requires fraud.[5] The applicant has stated the photographs were digitally altered to show signage on the building that was not present when the photographs were taken and are therefore not genuine representations of the building which retained the signage of its owner. The question before the Tribunal at this point is simply whether the photographs are documents the Minister reasonably suspects are document that are counterfeit.
Purposeful falsity
[5] FRS17 v MIBP [2022] FedCFamC2G 808 at [9] – [10].
The principle of ‘knowing falsehood’ applies to the provision of a ‘bogus document’ within the meaning of paragraph (b) of the definition of bogus document.[6] The test here does not require the Tribunal to be satisfied the applicant knowingly provided false information, rather whether it is reasonable for the Minister to suspect the documents provided were knowingly false.
[6] Patel v MIBP [2015] FCAFC 22, applying Trivedi v MIBP (2014) 220 FCR 169. See also Chopra v MIBP [2014] FCCA 2064.
The applicant stated that at the time of lodging the photographs, they had been prepared in order for him to see what his signage would look like if the signage was produced and installed on the property he was leasing from Mr M.A.R.P. Nayanajith, a director of RPN International and a former employer of the applicant. A letter from Mr Nayanajith, dated 19 April 2022 confirms that he was leasing the building to the applicant between 20 April 2018 and 31 November 2019. During that time the applicant was authorised to use the premises for all the purposes of conducting his business including, relevantly, installing signage and promotional materials.
What is apparent in this matter is that regardless of any original purpose for producing the photographs, they were given to the Department on 13 February 2020 in support of an application for a Subclass 188 - Business Innovation and Investment (Provisional) visa in the Business Innovation stream. This visa requires a successful applicant to have had a successful business career.
Despite requests from the Department on 2 February 2021 and 1 July 2021 in relation to the photographs - to provide higher quality, digital, copies of the photographs; the applicant’s response of 16 September 2021 did not mention that the photograph’s had been altered. The response advised the Department that the original photographs had been stolen along with camera equipment. There is nothing before the Tribunal establishing a causal link between giving of the photographs in the altered state, and the loss of the originals.
On 7 March 2022 the Department invited the applicant to comment on the adverse information that they were concerned the documents were bogus, and it was not until 26 April 2022 in response to this invitation that the applicant first acknowledged that the photographs had been altered. The applicant’s evidence has been consistent in relation to the documents since April 2022.
In their findings, the Delegate also raised concerns about inconsistencies between Mr Jayananda’s claims in a letter dated 28 March 2021 that the applicant was the Business Manager of RPN International (PVT) Ltd from 2008 until 2012, and the applicant’s claims in their Form 80 that during that period they had been working as a sole trader.
The applicant’s 16 September 2021 response to the request for further information from the Department contains an undated statement from the applicant headed ‘The initiation of my business’ stating that the applicant started their own business on 18 May 2013 and worked as Vehicle Sales Manager for RPN International from 2008 to 2013.
A quality of ‘purposeful falsity’ is required of PIC 4020 as described in Kaur v MIBP [2014] FCA 1276 at [57]–[61]. This supports the principle that it is not reasonable for people to be refused their visa due to administrative error.
Had the evidence in this matter been free of anomalies, and had the applicant identified that the photographs had been altered as soon as the Department requested that the applicant provide higher quality, digital, copies of the photographs, a decision maker may conclude that there was no evidence that the documents provided were purposefully false. Unfortunately for the applicant, the application did contain anomalies, and it was not until the specific issues with the photographs were drawn to the applicant’s attention by the Department by way of an invitation to comment that the applicant admitted the photographs had been altered.
For these reasons the Tribunal is satisfied that there is an element of deception in the use of the altered photographs in support of the subclass 188 application.
Bogus documents
For the reasons given above, the Tribunal is satisfied that the altered photographs are counterfeit meeting the definition of ‘bogus document’ in 5(1)(b) and that there is an element of deception in the provision of these documents in support of the visa application. For these reasons the Tribunal finds that photographs 1 and 2 are bogus documents.
Have bogus documents been given or caused to be given?
PIC 4020 requires that there be no evidence that the information or bogus document was given, or caused to be given to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth.
The bogus documents were initially provided to the Department by the applicant’s Migration Agent. The applicant told the Tribunal that he had provided the photographs to his Agent as part of a bundle of evidence in response to a request for information from the Department.
It is not necessary that the applicant is aware that false information has been given by that other person, or that the applicant gave instructions to that other person for the bogus document or false or misleading information to be provided.[7]
[7] See Singh v MIBP [2018] FCAFC 52 at [152] See also Singh v MIBP [2015] FCCA 2776 at [49].
It is uncontroversial that the bogus documents were given to an officer of the Department in support of the applicant’s subclass 188 visa application.
Bogus Document Conclusion
For all of the reasons set out above, the Tribunal is satisfied there is evidence before the Tribunal that the applicant has given, or caused to be given to an officer a ‘bogus document’, as defined in s 5(1)(b) (i.e. a document that the Tribunal reasonably suspects is a document that is counterfeit) in relation to the visa application.
Therefore, the applicant does not meet PIC 4020(1).
Should the requirements of PIC 4020(1) or (2) be waived?
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.
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.
For the following reasons, the Tribunal is satisfied that the requirements should be waived.
Compelling circumstances affecting the interests of Australia
On 15 March 2024 the applicant provided a signed written personal statement requesting waiver of the public interest criteria and that the Department consider his business operations and its benefit to Australia. The applicant, keen to utilize his skills and expertise, commenced Australian business operations whilst on a bridging visa. He states that his business ‘has contributed to the country immensely and created job opportunities for several in the industry and the local community’.
In support of his waiver request, the applicant provided:
· ASIC company details for Queensland Automart Pty Ltd, an Australian Proprietary Company registered on 22 August 2022 and listing the applicant and his wife as office holders;
· BAS statements for the September and December quarters of 2022, and March, June, September and December quarters of 2023;
· Motor Dealer licences for Queensland Automart Pty Ltd and for Lal Jayananda Hangili Naidelage;
· A letter dated 14 March 2024 from Thisal Aluthge of Thisal Accountants confirming that Queensland Automart Pty Ltd is one of their clients, and:
o The Company is trading profitably at the date of this letter; and
o Lal Jayanada Hangili Naidelage is one of the Company's Directors, and he actively manages its day-to-day management of the Company.
A submission on behalf of the applicant dated 15 March 2024 relevantly states:
[…]
Despite the difficulties faced by the Applicant, due to the unfortunate decision of the delegate, the Applicant has been a genuine businessman and contributed immensely to Queensland over the years. The Applicant and his spouse are the directors/ shareholders of Queensland Automart Pty Ltd, registered 23 August 2022. The Applicant’s experience of more than a decade in the automotive industry has equipped him with the knowledge and expertise to set up and establish Queensland Automart successfully in Queensland. The said business had a turnover in excess of $300,000 for 2023.
To evidence the above, we attach the following documents:
1. Updated ASIC Extract - Queensland Automart Pty Ltd.
2. BAS – 2022
3. BAS - 2023
4. Dealership licenses - Primary Applicant
5. Letter from Accountant – Thisal Accountants
The Applicant has been operating the company just over a year however he has made substantial progress within a very short period of time in a new country. This clearly shows the Applicant Business acumen and his ability to manage a business. Through his company he has contributed immensely to the state and his community and has provided employment opportunities. We wish to reiterate this as a significant contribution which impacts local community and the State. Due to the uncertainty of his application pending before the Tribunal and the Department, the Applicant has been hesitant to make further expansion and/or hire new employees.
If the Applicant is permitted to remain, he is hoping to expand the current venture in the future as well, he has spent considerable time and money to obtain the required licenses and approvals to ensure he is compliant and meets the industry standards to operate the business in Queensland and in Australia.
It must also be noted that the Applicant had no obligation to commence a business and/or adhere to the 188 Visa requirements prior to the grant. Despite the ambiguity surrounding the visa and a potential adverse decision, the Applicant duly commenced the said business and operated it on a valid Bridging visa. This aptly shows the genuineness of the Applicant to invest and do business in Australia as presented in his initial application.
The Applicant’s business experience, his ability to contribute, invest and his proven ability to provide employment opportunities must be given due regard in the decision. The closing of his business will have a significant impact on the community and Australia. The Applicant is a tax paying member with good standing and has adhered to his visa conditions at all times.
In light of the above contributions by the Applicant in respect of his business, we request the discretion to waive be exercised under 4020(4) on grounds of compelling circumstances affecting the interests of Australia and an Australian Business. We further attach herewith a statement from the Applicant for your kind reference.
[…]
The question for the Tribunal is whether the circumstances force or drive the decision-maker irresistibly to be satisfied that these circumstances affect the interests of Australia.
While not binding, the Tribunal may have regard to the department’s interpretation and examples of what may constitute compelling or compassionate circumstances.[8]
[8] Mudiyanselage v MIAC [2012] FMCA 887 where the Court noted it was open for the Tribunal to be guided by Department policy.
The Explanatory Statement to SLI 2011, No 13 introduced PIC 4020. Compelling circumstances affecting the interests of Australia for waiving the requirements of PIC 4020 identified in the Explanatory Statement include:
Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or
Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or
Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.[9]
[9] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances – Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).
Policy also states that compelling circumstances affecting the interests of Australia would not include circumstances where the non-citizen merely claims that, if granted the visa, they would work and pay taxes in Australia, pay fees to an education provider or spend money in Australia.[10]
[10] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances Compelling circumstances affecting the interests of Australia (re-issue date 1/1/18).
The applicant in this case has clearly invested in Australia and built a small business in a short period and that this contribution has not been as a requirement of visa obligations. The Tribunal notes that the applicant’s company has paid taxes.
There is no evidence before the Tribunal that: Australia’s trade or business opportunities would be adversely affected were the applicant not be granted a visa; Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or, Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa. There is also scant evidence to support the applicant’s submission that: through his company he has contributed immensely to the state and his community and has provided employment opportunities; or, that this is ‘a significant contribution which impacts local community and the State’.
While the circumstances contained in the Explanatory Statement are neither comprehensive, nor binding: the Tribunal accepts them as guidance as to the types of circumstances which would represent compelling circumstances affecting the interests of Australia.
In this case, there is nothing before the Tribunal that it considers compelling circumstances affecting the interests of Australia.
Compassionate or compelling circumstances affecting the interests of an Australian
Guidance on circumstances that may amount to compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen may also be found in the Explanatory Statement to SLI 2011, No 13 which introduced PIC 4020, and the Department policy.[11] The explanatory statement also states that these circumstances do not relate to the interests of the visa applicant.[12] Examples of the types of circumstances that may involve compelling or compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen include:
family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);
that family members in Australia would be left without financial or emotional support; and
a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period.[13]
[11] Policy – [Sch4 4020] – Public Interest Criterion 4020 – The integrity PIC - Compelling and/or compassionate circumstances (re-issue date 1/1/18).
[12] Explanatory Statement to SLI 2011, No 13, at 19.
[13] Explanatory Statement to SLI 2011, No 13, at 19-20.
The applicant provided letters of support related to his children and their value to the Australian and local community.
A letter from Mrs Friné Lupke, Principal Good Shepherd Christian School (undated) speaks very highly of Ishila Hangili Naidelage’s commitment to learning, academic, and career focussed subject achievement as well as involvement with the school community:
[…]
Ishila has become an integral part of our school community, consistently presenting himself as an enthusiastic learner and responsible student. He actively participates in extracurricular activities, taking initiatives that benefit both students and teachers. His presence and contributions have enriched our learning environment, aiding in promoting cultural diversity and understanding among peers.
We strongly believe that Ishila's continued presence in Australia will be mutually beneficial. His determination, commitment, and passion for automotive electrical technology make him a valuable addition to our society. Furthermore, Ishila's potential contributions to the Australian workforce are undeniable, and his skill set aligns with current demands within the industry.
[…]A letter containing comments from many of Sashika Shehan Jayananda Hangili Naidelage’s school friends provides what is obviously heartfelt support for Sashika as a contributor to the school community. A few examples of these comments are extracted below:
· Sashika is a big part of grade 6… Every day he brings a special spark in the classroom, he is funny, artistic, bright and he always finds a way to put a smile on anyone’s faces and manages to make his peers day better…
· If Sashika were to leave then there would be no-one left to tell us silly jokes, ask us weird questions or cheer us up. Sashika is like the heart and spirit of our Year 6 cohort…
· Sashika is one of the main people who make the year 6 community a community. He always makes others feel welcomed…
· Hi, I am Sashika’s Best Friend and I will be very sad if Sashika leaves. I have had many memories with Sashika and I do not want to lose anything about him. He is a great boy with a wonderful personality and a great smile. If Sashika leaves it would not ever be the same…
Sashika’s teachers also provided letters of support describing him as caring, thoughtful, respectful and compassionate. A letter dated 16 February 2024 from the parents of Sashika’s best friend. Their family are Australian citizens and say that their son would be tremendously [negatively] affected if Sashika were to leave Australia and that Sashika and his family have developed very strong bonds over the last four years.
Ms Cheryl Bell, Acting Principal St Flannan’s Primary School, also provided a letter of support dated 15 February 2024 for Sashika. She speaks of Sashika’s amazing progress academically, having arrived with no prior exposure to English at the start of 2020, and dealing with the disruption COVID caused to school life - already achieving at or above expected standards for his year level. In 2023, Sashika was awarded the Spirit of Knowledge Award for his commitment to learning and for consistently displaying the school values of courage, compassion, service and love. He is well-liked among his peers and is predicted to win the Year 6 Spirit Award for Service to the Community at the end of 2024.
At the hearing when asked about community involvement that may demonstrate compassionate or compelling circumstances affecting an Australian the applicant told the Tribunal ‘We are on the committee of two Temples’. He said that he was involved in charity work and had submitted some information. He said that he provides food and clothing for the needy through the Temples.
A letter (undated) from Venerable Sitinamaluwe Sugathasara, President and Chief Resident Monk Buddhist Vihara (Temple) of Queensland, describes the applicant’s active and dedicated membership of the Goodna Temple community and his tireless dedication to community service. He describes the applicant organising charitable events, volunteering at local shelters and participating in outreach programs: ‘His commitment to helping those in need reflects the true spirit of Goodna Temple and serves as a testament to his genuine concern for the well-being of others’.
A letter dated 27 December 2023 from Venerable Wattegama Dhammawasa Nayake Thero, President and Chief Incumbent of the Sri Lanka Buddhist Monastery (Brisbane) and Chief Sanghanayake for Australia, states in relation to the applicant: ‘He is an active member of the SLBM congregation. He has been involved in working bees and various spiritual and cultural activities organized by the monastery. I have known him for several years and to my knowledge and faith, he bears a good character’.
Mr Ashan Sudrikku, a business friend of the applicant, gave evidence at the hearing. He spoke of the applicant’s involvement with the Temple: doing maintenance; employing some of the contractors; organising charity events in the community; giving food.
Ms Acharige gave evidence that she is not involved with the business. In relation to compassionate or compelling circumstances affecting the interests of an Australian, she spoke of a 10 or 11-year-old Australian child who she has been voluntarily assisting with meals and feeding for the past two years. She told the Tribunal that she believes the child has some mental health issues and he is unable to control his upper limbs to feed himself. Because the child’s parents are working, they are unable to deliver 24 hour care. Ms Acharige told the Tribunal that she does not believe the child’s condition will improve. She spends two to two and a half hours feeding the child two to three times a week and travel is about 35 minutes each way from her home. The applicant dropped his wife off and picked her up from this voluntary work. The Tribunal asked Ms Acharige what would happen if she was not in Australia to assist this child and she answered: ‘he would get weaker not able to feed himself’. The Tribunal asked whether there were any documents in relation to this and the applicant’s representative indicated that an ‘express request’ would be made.
In his evidence Mr Ishila Shehan Jayananda Hangili Naidelage told the Tribunal that he sometimes drops his mother off, and collects her from, her voluntary work with this child.
Post hearing the Tribunal received a submission in relation to the evidence about Ms Acharige supporting the child with feeding. Relevantly the submission states:
The applicants now instruct that the family of the child are not willing to provide further support or evidence in this matter, due to the sensitive nature of the child’s disability. The applicants have not pushed the family for further evidence or support, as the general attitude towards this particular line of evidence is that the applicants do not wish to be perceived as attempting to capitalise on the disabled child’s illness, or to disclose any additional evidence on the child’s circumstances or burden the child’s family any more than what was briefly disclosed during the hearing. As the Tribunal can appreciate, the issue of a disabled child is a particularly delicate topic, and it is understandable that the parents of the child may be protective and highly sensitive about the issue. The applicants have been assisting the family genuinely and purely out of goodwill and do not wish to put on the family any additional demands.
It is not sufficient for the purposes of the waiver that there are compelling or compassionate circumstances alone. The circumstances must affect the interests of Australia, an Australian citizen, permanent resident or an eligible New Zealand citizen.[14]
[14] Vyas v MIMAC [2013] FCCA 1226 at [14].
Ms Acharige, while stating that the child she feeds is an Australian, offered no further evidence that the child is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen and for that reason the Tribunal does not treat this evidence as relating to compassionate or compelling circumstances affecting the interests of an Australian.
The only evidence before the Tribunal that is specific to an Australian who may be affected as a result of whether a waiver is granted is Master Sashika Shehan Jayananda Hangili Naidelage’s best friend, Yuvi. That he is an Australian citizen is confirmed in writing by his parents who also speak of the very close personal relationship between the children. Yuvi himself expresses the sadness he would feel at the loss of happiness and love should Sashika have to leave Australia.
A close bond between friends is difficult to equate to the examples provided earlier of the types of circumstances that may involve compelling or compassionate circumstances affecting the interests of an Australian described in the Explanatory Statement. Generally, having regard to the ordinary meaning of those words, ‘compassionate’ can be defined as ‘circumstances that invoke sympathy or pity’.[15] In this case the Tribunal accepts that there is a strong compassionate element to the circumstances between Sashika and his Australian friend Yuvi. The conjunctive ‘or’ used in reg 4020(4)(b) does not require a finding that both compassionate and compelling circumstances must exist to justify the granting of a visa.
Having regard to those circumstances should the requirements be waived?
[15] The ordinary meaning of ‘compassionate’ as found in dictionary meanings of the term, the Macquarie Dictionary defines compassionate as ‘having or showing compassion’ and ‘compassion’ as ‘a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy’. This definition was considered in Kaur v MIBP [2018] FCCA 1614 at [24].
The applicant has put to the Tribunal that a range of circumstances add to the compassionate circumstances discussed above:
· even if there is a finding that the documents were bogus because signage had been shown that had not existed, it has been demonstrated that the applicant was leasing the property and had the right to put up the signage that was pictured in the bogus documents;
· had the photographs not been used, the application had enough strength to succeed without them;
· the applicant has started a business in Australia that has been successful;
· the youngest child, Sashika, has spent much of the childhood and schooling in Australia and has established strong two way connections with a number of Australians;
· the children of the family have done well at the stages in life that they are at and are contributing to Australian life;
· it would be traumatic for the children to have to leave Australia after the amount of time they have been here and the bonds they have at school and in the workplace; and
· the applicant and his wife are contributing to the community, particularly through their work with the temples.
The Tribunal has considered the applicant’s evidence and finds that, on balance, the compassionate circumstances - in particular related to the childhood bond between Sashika and his best friend - slightly outweigh the seriousness of the giving of bogus information in all of these circumstances.
Therefore, the requirements of PIC 4020(1) should be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant satisfy the Tribunal as to his or her identity.
There is nothing before the Tribunal drawing into question the applicant’s identity and photographs on the identity documents provided match the appearance of the applicant.
Therefore, the applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 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(2BA).
The applicant told the Tribunal that neither they, nor members of their family unit, have previously been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A). There is nothing before the Tribunal to suggest otherwise.
Therefore PIC 4020(2B) is met.
Concluding paragraphs
On the basis of the above, the applicant satisfies PIC 4020 for the purposes of cl 188.213.
The secondary applicants were not granted their visa’s as members of the primary applicant’s family unit, the primary applicant having not met the requirements of PIC 4020. Now that this criterion is met by the primary applicant, the Tribunal recommends that the secondary applicants visa applications be reconsidered together with that of the primary applicant.
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
George Hallwood
Member
ATTACHMENT
Migration Regulations 1994
Schedule 4
(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.
…
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