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Hangili Naidelage (Migration)

Hangili Naidelage (Migration)

Case [2024] AATA 2248 20 June 2024

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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 Naidelage
REPRESENTATIVE:  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.…

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 Hangili Naidelage (Migration)

Details

AGLC: Hangili Naidelage (Migration) [2024] AATA 2248
Case: [2024] AATA 2248
Decision Date: 20 June 2024

CaseChat Overview and Summary

The applicant, Hangili Naidelage, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the refusal of a Subclass 188 (Business Innovation and Investment (Provisional)) visa, which was based on the applicant having provided a bogus document, specifically altered photographs, contrary to Public Interest Criterion (PIC) 4020(1). The matter came before George Hallwood.

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