FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MUDIYANSELAGE v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 887 |
| MIGRATION – Review of decision of Migration Review Tribunal – whether a skills assessment provided by the applicant was a bogus document within the meaning of section 97 of the Migration Act 1958 (Cth) or contained information that was false or misleading in a material particular in relation to the applicant’s application for a visa – whether the Minister for Immigration and Citizenship should have waived the requirements of a criterion of the applicant’s visa because of compassionate or compelling circumstances that affect the interests of Australia or compelling and compassionate circumstances that affect the interests of an Australian citizen or Australian permanent resident |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.97, 474, Pt.8 Migration Regulations 1994 (Cth), cls.485.223, 485.224, Sch.2 |
| Applicant: | SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 608 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 14 September 2012 |
| Date of Last Submission: | 14 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Jeppeson |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 19 March 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 608 of 2012
| SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 24 February 2012 and handed down on 27 February 2012.
The issues in this case are whether a skills assessment provided by the applicant was a “bogus document” within the meaning of s.97 of the Act or contained information that was false or misleading in a material particular in relation to the applicant’s application for a visa; and, whether the Minister for Immigration and Citizenship (“the Minister”) should have waived the requirements of a criterion of the applicant’s visa because of compelling circumstances that affect the interests of Australia or compelling and compassionate circumstances that affect the interests of an Australian citizen or Australian permanent resident.
Prior to considering the proceeding before this Court, these reasons provide the…
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- AGLC
- Mudiyanselage v MIAC [2012] FMCA 887
- Case
- [2012] FMCA 887
- Decision Date
CaseChat Overview and Summary
The case of Mudiyanselage v MIAC involved the applicant contesting a decision made by the Migration Review Tribunal (MRT) that she did not meet the criteria under clause 4020(1) of the Migration Regulations, and that it was not appropriate to waive those requirements. The applicant argued that she had not provided any false or misleading information or documents, and that her circumstances warranted a waiver of the requirements. The MRT had found that the applicant had provided a false and misleading document to the Department of Immigration and Border Protection (DIBP) and had given false or misleading information to the relevant assessing authority, the DIBP. The Tribunal also concluded that the applicant's circumstances did not justify a waiver of the requirements.
The central legal issues in this case were whether the applicant had provided false or misleading information or documents to the DIBP and whether the Tribunal was correct in finding that the applicant's circumstances did not warrant a waiver of the requirements under clause 4020(1) of the Migration Regulations. The applicant argued that she had not intentionally provided false information and that her circumstances, including being a victim of fraud and being a valued employee, justified a waiver of the requirements. The Tribunal found that the applicant had indeed provided false information and that her circumstances did not warrant a waiver.
The court considered the evidence provided by the applicant and the findings made by the Tribunal. The court noted that the applicant had provided a document to the DIBP that was based on false information and that this document was considered in the First Skills Assessment. The court also noted that the Tribunal had found that the applicant's explanation for providing the false information was not credible. The court held that the Tribunal's findings were supported by the evidence and that there was no error in the Tribunal's decision. The court dismissed the applicant's appeal and ordered that the proceeding before the Court be dismissed and that the applicant pay the costs of the first respondent.
The final orders of the Court were that the proceeding before the Court, commenced by way of application filed on 19 March 2012, is dismissed, and that the applicant pay the costs of the first respondent fixed in the amount of $6,000.
The central legal issues in this case were whether the applicant had provided false or misleading information or documents to the DIBP and whether the Tribunal was correct in finding that the applicant's circumstances did not warrant a waiver of the requirements under clause 4020(1) of the Migration Regulations. The applicant argued that she had not intentionally provided false information and that her circumstances, including being a victim of fraud and being a valued employee, justified a waiver of the requirements. The Tribunal found that the applicant had indeed provided false information and that her circumstances did not warrant a waiver.
The court considered the evidence provided by the applicant and the findings made by the Tribunal. The court noted that the applicant had provided a document to the DIBP that was based on false information and that this document was considered in the First Skills Assessment. The court also noted that the Tribunal had found that the applicant's explanation for providing the false information was not credible. The court held that the Tribunal's findings were supported by the evidence and that there was no error in the Tribunal's decision. The court dismissed the applicant's appeal and ordered that the proceeding before the Court be dismissed and that the applicant pay the costs of the first respondent.
The final orders of the Court were that the proceeding before the Court, commenced by way of application filed on 19 March 2012, is dismissed, and that the applicant pay the costs of the first respondent fixed in the amount of $6,000.
Orders
Orders of the court
1.
The proceeding before this Court, commenced by way of application filed on 19 March 2012, is dismissed.
2.
The applicant pay the costs of the first respondent fixed in the amount of $6,000.
Background
Background to the litigation
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Evidence
Evidence Before The Court
PIC 4020 is as follows:“(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, 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 the application; 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). (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. Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act”[Emphasis added] It is also common ground that for the purposes of PIC 4020, a “bogus document” is defined in s.97 of the Act which provides, relevantly, as follows:“Interpretation In this Subdivision:…"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. …”[Emphasis added] The Tribunal’s review and decision is accurately summarised in the written submissions of counsel of the first respondent, Mr Martin Smith, as follows:“18. At the hearing, the applicant gave evidence explaining why she submitted the Dinkums’ letter (referred to in paragraph [10] above) to TRA. The applicant’s explanation was that she had completed over 1000 hours’ work experience at several printing businesses and that she contacted a Mr Liew, who was the job coordinator at St Georges Institute (where she had previously studied), who arranged a reference from Dinkums. The applicant stated that although she thought the letterhead should have referred to one or other of the printing companies at which she worked, the applicant trusted Mr Liew, who had organised everything for her and seemed to be honest. The applicant acknowledged that, with the benefit of hindsight, she had been naïve in her dealings with Mr Liew. The applicant also stated that she would have never misled the Department of Immigration and pointed to the fact that she had been employed for some time by Australia Post who seemed to value her as an employee: CB 134-137 [26]-[44].19. After considering the evidence and the applicant’s explanation, the Tribunal found that the First Skills Assessment was made in part on the basis of information in the Dinkums’ letter (referred to in paragraph [10] above) that she had provided to TRA: CB 137 [47]. The Tribunal then concluded, based on an assessment of the evidence the applicant gave at the hearing, coupled with the fact that the First Skills Assessment had been withdrawn, that the Dinkums’ letter that the applicant had given to the TRA was false and misleading and that the applicant had not completed the work experience claimed: CB 137-138 [50].20. Based on this factual finding, the Tribunal concluded that the applicant did not meet the requirements of PIC4020(1)(a), given that:(a) The First Skills Assessment, which had been provided to the Minister, was a “bogus document”, given that it was a document that the applicant obtained because of a false and misleading statement that she gave to TRA: CB 138 [52]-[53]; and (b) The applicant had given the TRA, being the relevant assessing authority, information that was false or misleading in a material particular: CB 138-139 [54]-[55]. 21. Having concluded that the applicant did not meet the requirements of clause 4020(1), the Tribunal then considered whether it was appropriate to waive the requirements of 4020(1): CB 139 [56]. The applicant claimed that her circumstances were compelling given that (a) she had worked unpaid for over a year and was the victim of a fraud and (b) she was considered to be a valuable employee by Australia Post: CB 140-141 [60-[61]. The Tribunal concluded that even if were the case that the applicant had worked unpaid and had been the victim of a fraud, this did not demonstrate that her circumstances were compelling: CB 140 [60]. The Tribunal made a similar finding in respect of the claim regarding employment with Australia Post: CB 141 [61].”
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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