Sivapalan (Migration)

Case [2025] ARTA 306

SIVAPALAN (MIGRATION) [2025] ARTA 306 (7 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Mr Subakaran Sivapalan

Visa Applicant:  Mr Luxshan Subakaran

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2437150

Tribunal:Senior Member M Sripathy

Place:Sydney

Date:  7 March 2025

Decision: The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the order that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·     PIC 4020 for the purposes of cl. 101.223 of Schedule 2 to the Regulations; and

·     cl 101.213 of Schedule 2 to the Regulations; and

·     cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 07 March 2025 at 2:43pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – false or misleading information or bogus document – study since turning 18 – certificate of course completion – verification check – no contact with provider made and visa applicant’s communication difficulties during phone conversation – further statements and documentation provided – study at times of application and decision – compassionate or compelling circumstances justifying waiver – review applicant’s health – joint hearing with brother’s review as secondary applicant on mother’s partner visa – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1), 101.221(2)(b), 101.223, Schedule 4, criterion 4020(1), (5)

CASES
Flomo (Migration) [2024] AATA 901
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Sahr (Migration) [2021] AATA 1319
Sandhu v MIMAC [2013] FCCA 491
Sharma v MIMAC [2013] FCCA 1280
Singh v MIMAC [2013] FCCA 1435
Sok v MIMIA [2005] FMCA 190
Sun v MIBP [2016] FCAFC 52
Talukder v MIAC [2009] FMCA 223
Wake v MIAC [2010] FMCA 272

STATEMENT OF 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 18 September 2024 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The visa applicant applied for the visa on 16 May 2023. The delegate refused to grant the visa on the basis that the delegate found the certificate of completion relating to a course claimed to be completed at Digiphonics Technology was a bogus document and did not meet PIC 4020(1) and was not satisfied the adverse impact on the applicant’s parents health was sufficiently compassionate or compelling to justify waiver of the provision.

  3. The sponsor applied for review of the decision to the Administrative Appeals Tribunal on 7 October 2024. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be…

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Details
AGLC
Sivapalan (Migration) [2025] ARTA 306
Case
[2025] ARTA 306
Decision Date

CaseChat Overview and Summary

Sivapalan, a Sri Lankan national residing in India, applied for a Child (Migrant) (Class AH) visa under subclass 101. The application was refused by the delegate, who was not satisfied that Sivapalan met the Public Interest Criterion 4020, which requires the absence of false or misleading information or bogus documents. The decision was primarily based on the suspicion that the Certificate of Completion from Digiphonics Technology was a bogus document, stemming from inconsistencies in Sivapalan’s responses during a phone interview. Despite Sivapalan providing additional documentation and explanations, the delegate did not waive the requirement. The decision was subsequently reviewed by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the delegate's decision was legally sound and whether the Tribunal should remit the matter for reconsideration. The key issues included whether the Department's verification process was adequate and whether the delegate's decision was supported by substantial evidence. The Tribunal also had to consider whether compassionate or compelling circumstances existed to warrant a waiver of the false document requirement.

The Tribunal found that the Department’s verification process was incomplete and lacked contact with Digiphonics Technology. Additionally, the Tribunal noted that the Department had not made any contact with the Institute where Sivapalan was studying at the time of the application, despite verifying his claims of that study. The Tribunal concluded that the delegate's decision was not supported by substantial evidence and remitted the matter for reconsideration. The Tribunal found that Sivapalan met the other criteria for the visa and ordered that the application be reconsidered in light of these findings.

The Tribunal remitted the application for a Child (Migrant) (Class AH) visa for reconsideration, with the order that the applicant meets the specified criteria for a Subclass 101 (Child) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department The visa applicant is a 26-year-old single male, born in Trincomalee, Sri Lanka and now residing in Chennai, India. He was 24 years old at the time the application was made. He declares a mother and older brother residing in India, and a father in Australia. The visa applicant indicates he has lived in India since June 2006, for safety and study. He is sponsored by his father (review applicant) who is an Australian citizen by grant, having arrived in Australia in 2009. The sponsor lodged a sponsorship form 40SP. In his application the visa applicant declares the following education: he completed the equivalent of year 12 secondary school at Our Lady Matriculation Higher Secondary School in April 2016. Following this, he completed a Bachelor of Technology in Automobile Engineering from June 2016 to December 2020; then a software development course from January 2021 to June 2022 at Digiphonics Technology and is currently enrolled in a Diploma in X-Ray Technology from August 2022 to June 2024 at IDA Allied Health Academy. He is not employed, nor is he incapacitated for work due to the total or partial loss of bodily or mental functions. He declares he is fully financially supported for food, shelter and all other financial needs by his father from birth to the present time. On 23 February 2024 the Department undertook verification checks relating to the applicant’s claimed education history. A file note record of the checks undertaken is included in the Department file.[1] In the course of these checks an officer undertook an open-source search for the IDA Institute Health Academy for which only phone and address details, no website, was located. The number was called, questions asked about the institute and nature of courses. The applicant was verified by name as a current student, and his contact details were forwarded by request. [1] BCC20232786045 OPD2024/95815 The officer called the applicant by phone and notes are provided of the interview that ensued. The officer noted various concerns arising from the interview. The visa applicant stated he resides in Chennai and it takes him 1.5 hours by bus to get to the academy in Vellore; it is recorded that he gave inconsistent answers from the course directors about the number of students in his course and timing of the classes. In response to questions about what he was doing after his engineering course, the notes record he stated that due to COVID he took a gap and joined a 3-month diploma course in 2021 called Diagnosis Technology. He denied pursuing any long-term course in 2021-2022 and said it was an online course only. He is recorded as denying knowledge about the Full Stack Web Development course, claimed in his application. The file record notes the cumulative concerns of the officer and the referral was finalised as ‘serious concerns’.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the order that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·PIC 4020 for the purposes of cl. 101.223 of Schedule 2 to the Regulations; and ·cl 101.213 of Schedule 2 to the Regulations; and ·cl 101.221(2)(b) of Schedule 2 to the Regulations.Date of hearing: 26 February 2025Representative for the Applicant: Mr Dushan Nikolic

Ratio Decidendi

Legal Principle Established

On 6 March 2025 the Tribunal received two documents of screenshots of course work relating to his current course of study. The representative submits this is evidence in support of his oral evidence regarding the current study he is undertaking, for which he is still in the process of completing a final course project. CONSIDERATION The application was refused on the basis that the delegate was not satisfied the applicant met cl.101.223 having found that PIC 4020(1) was not met and could not be waived. It is a requirement of 101.223 that, among other Public Interest Criteria (PIC) the applicant satisfies PIC 4020 contained in clause 4020 in Schedule 4 of the Migration Regulations 1994. The relevant provisions are as extracted below:4020(1) There is no evidence before the Minister that the applicant has given, or caused tobe given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewabledecision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogusdocument 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 wasmade.(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) andsubclause (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 Australiancitizen, 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.Bogus document is defined in Section 5(1) of the Migration Act as follows:bogus document, in relation to a person, means a document that the Minister reasonablysuspects 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 madeknowingly. The delegate’s decision was based on a suspicion that the Certificate of Completion from Digiphonics Technology was a bogus document. This in turn apparently was based on the visa applicant’s responses during a phone interview with an officer in which he is alleged to have referred to having done a three-month course and did not appear to be familiar with the name of the course he had submitted evidence for. Despite numerous documents provided in response to this allegation, the delegate concluded the document was a bogus document. Department file records provided to the Tribunal do not show that any contact was made, or even purported to be made with Digiphonics Technology. The verification steps undertaken were with the Institute the applicant was undertaking a course at the time of application, IDA Allied Health Academy, and the records appear to indicate that this contact verified his claims of that study, although despite this verification the officer formed a view that IDA Allied Health Academy may be facilitating the education claims. The Tribunal observes that no evidentiary basis for this suspicion is indicated or alluded to in the file records.