Sinhasana Daunda Patabandi Gedara (Migration) - [2025] ARTA 1336

SINHASANA DAUNDA PATABANDI GEDARA (MIGRATION) [2025] ARTA 1336 (9 JULY 2025)

CURRENTLY

DECISION AND

REASONS FOR DECISION

Applicant:Mrs Erangika Madhubhashini Wijerathne Sinhasana Daunda Patabandi Gedara
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2410342

Tribunal:Senior Member L. Symons
Place:Sydney
Date: 9 July 2025
Decision:The Tribunal affirms the decision under review

Senior Member L Symons
Statement made on 9 July 2025 at 2:40pm

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Medical Treatment) – mental health treatment – bogus document or false or misleading information provided with visa application by member of family unit within 3 years – husband’s English language test results provided with employer nomination visa – verification check – visa application refused and affirmed and application for judicial review in progress – discretion to cancel visa – compassionate or compelling circumstances – young child and newborn baby – adequate means to support – employment in regional area – employer willing to sponsor – visa does not provide work rights, but application may be made for financial circumstances – joint hearing with husband’s separate review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 186.213, 602.212(2)(e), (4), 602.218, Schedule 4, criterion 4020(1), (5), Schedule 8, condition 8101

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship on 16 April 2024 to refuse to grant the applicant a Medical Treatment (Visitor) (Class UB) Subclass 602 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied to the Department of Immigration and Multicultural Affairs (the Department) for the visa on 21 March 2024. At that time, Class UB contained one subclass, Subclass 602 (Medical Treatment). The criteria for the grant of this visa are set out in Part 602 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the applicant the visa because he was not satisfied that the applicant met the requirements of cl 602.218 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because he was not satisfied that the applicant met the requirements of Public Interest Criterion (PIC) 4020. On 2 May 2024, the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it must be continued in the Tribunal in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before the 14 October 2024 continues to have…

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.

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Details

AGLC: Sinhasana Daunda Patabandi Gedara (Migration) [2025] ARTA 1336
Case: [2025] ARTA 1336
Decision Date: 9 July 2025

CaseChat Overview and Summary

The applicant and her husband, Indian nationals, sought to appeal the decision to refuse and affirm the cancellation of their subclass 602 (Medical Treatment) visa. The refusal was based on the submission of a bogus document or false or misleading information within three years by a member of the family unit. Specifically, the husband's English language test results were provided with his employer nomination visa application, despite not being required to do so. The tribunal was required to determine whether the applicants' circumstances were compassionate or compelling enough to warrant the exercise of the Minister's discretion not to cancel the visa.

The tribunal considered whether the applicants' circumstances were compassionate or compelling. The tribunal noted the presence of a young child and a newborn baby, but also considered that the applicants had adequate means to support themselves, including employment in a regional area with an employer willing to sponsor them. The tribunal further noted that the visa did not provide work rights, but that the applicants could apply for financial support. The tribunal also considered that the decision to refuse and affirm the cancellation of the visa was not unreasonable, as the applicants had provided false or misleading information within three years, which was a significant factor in the decision-making process.

Ultimately, the tribunal affirmed the decision to refuse and affirm the cancellation of the applicants' subclass 602 (Medical Treatment) visa. The tribunal found that the applicants' circumstances, while compassionate, were not compelling enough to warrant the exercise of the Minister's discretion not to cancel the visa. The tribunal also found that the decision to refuse and affirm the cancellation of the visa was not unreasonable, given the applicants' provision of false or misleading information within three years. The tribunal further noted that the applicants had not demonstrated that they had taken reasonable steps to rectify the situation, and that the provision of false or misleading information was a significant factor in the decision-making process.

The tribunal's decision was affirmed, and the applicants' appeal was dismissed. The tribunal noted that the applicants had not demonstrated that the decision to refuse and affirm the cancellation of their visa was unreasonable, and that the applicants' circumstances, while compassionate, were not compelling enough to warrant the exercise of the Minister's discretion not to cancel the visa. The tribunal further noted that the applicants' provision of false or misleading information within three years was a significant factor in the decision-making process, and that the applicants had not taken reasonable steps to rectify the situation.

Orders