1417259 (Migration)

[2016] AATA 3030

1417259 (Migration) [2016] AATA 3030 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chamidu Achintha Seekkuge Perera
Mrs Shayalika Sanjeevani Amunegedara Waduduruge
Miss S Dewmi Purandara Perera

CASE NUMBER:  1417259

DIBP REFERENCE(S):  BCC2014/1003248

MEMBER:Antonio Dronjic

DATE:19 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for a Temporary Work (Long Stay Activity) (Class GB) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 401 visa:

·Cl.401.214 of Schedule 2 to the Regulations.

Statement made on 19 January 2016 at 5:27pm

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 Immigration on 14 October 2014 to refuse to grant the visa applicant a Temporary Work (Long Stay Activity) (Class GB) Subclass 401 visa under s.65 of the Migration Act 1958 (the Act). At the time of application, Class GB contained one subclass: Subclass 401 (Temporary Work (Long Stay Activity)).

2. The criteria for a Subclass 401 visa are set out in Part 401 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of the four alternative visa streams: the Exchange stream, the Sport stream, the Religious Worker stream, or the Domestic Worker (Executive) stream.

3. The visa applicants applied for the visa on 16 April 2014. The delegate refused to grant the visa on the basis that the first named applicant did not genuinely intend to stay in Australia temporarily to carry out the occupation or activity (as required by cl.401.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations)). In the present case, the applicant is seeking the visa in the Sport stream.

4. The review applicants applied to the Tribunal on 20 October 2014 and provided a copy of the primary decision record with their applications.

5. On 29 April 2015, the applicants’ representative provided:

   ·Legal submissions addressing the criteria for the visa grant (Tribunal Folios 221 to 256);

   ·Copy Coaching Certificate awarded to the first named visa applicant by the Board of Control for Cricket in Sri Lanka in July 2002;

   ·The first named visa applicant’s CV;

   ·Undated letter from the first named visa applicant employer, Camrea Taipans Cricket Club;

   ·Letter from Cricket Australia dated 5 March 2014 endorsing the skills of the first named visa applicant;

   ·Employment Agreement between the first named visa applicant and Camrea Taipans Cricket Club dated 4 March 2014;

   ·Job Description (Tribunal folio 36);

   ·The first named visa applicant’s Statement of Purpose dated 27 April 2014;

   ·Declaration made by the first named applicant of intention to comply with the visa conditions dated 30 July 2014; and

   ·Letter from Dr Witharana addressing the third named visa applicant’s issues.

6. On 16 October 2015, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the review applicants to provide information in writing as to whether the first named applicant is the subject of an approved nomination and meets cl.401.212(3) of Schedule 2 to the Migration Regulations. A copy of the relevant regulation was attached to the letter.

7. On 28 October 2015, the applicants’ representative submitted a copy of the Department’s Decision Nomination Approval Notice for subclass 401 visa dated 2 September 2015. The Decision stated that the proposed period of activity is from 10 September 2015 to 30 April 2016.

8. On 2 November 2015 the Tribunal wrote to the review applicants advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing on 19 January 2016.

9. On 5 November 2015, the applicants’ representative submitted:

   ·Further legal submissions (Tribunal folios 322-324)

   ·Employment Agreement between the first named applicant and Camrea Taipans Cricket Club dated 16 July 2015;and

   ·Statutory Declaration from Mr Rahul Khurana dated 9 October 2015.

10. The applicants appeared before the Tribunal on 19 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from, Mr Rahul Khurana. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

11. I welcomed the parties and explained the purpose of the hearing and the issues to be considered. I explained that, in assessing whether the first named applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted, I will consider whether the first named applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the first named applicant was subject; whether the first named applicant intends to comply with the conditions to which the Subclass 401 visa would be subject; and any other relevant matters.

12. I indicated that there is no evidence before me that the first named applicant failed to substantially comply with the conditions of his previous visas and that I will take into consideration his Declaration of intention to comply with the visa conditions of 30 July 2014. I explained that ‘other relevant matters’ may include the first named applicant’s personal circumstances; situation in the first named applicant’s home country, personal attributes and employment background of the first named applicant, his ability to undertake the nominated position, whether the first named applicant's proficiency in English is consistent with the nominated employment and the first named applicant’s immigration history.

13. This is the summary of the oral evidence given by Mr Perera (the first named applicant):

    He is 39 years of age, Singhalese national of Sri Lanka. He is married and has one daughter who is attending primary school in Australia (grade 6). His brother and parents live in Sri Lanka and his sister is an Australian permanent resident and lives in Australia.

    Prior to arriving in Australia, he lived with his family in the city of Panni Pitiya which is located some 45 minutes from the capital. He described the city as a peaceful town which did not experience any significant problems during the war. Apart from his family home, where his parents currently reside, he owns another house which has been rented in the past.

    In Sri Lanka, the first named applicant has completed the equivalent of year 12 and has been working from 2000 to 2007 as an assistant accountant. His wife was operating a small business with her cousin (clothing manufacturing). He has no military commitments in Sri Lanka.

    He conceded that he has been granted a Sport visa subclass 421 on six previous occasions. The first one was granted in September 2007 and the last one, that remained operational until 30 April 2014, on 16 July 2013. He was not previously granted a subclass 401 visa. He did not apply for nor was he granted visas to travel and work in any other country apart from Australia.

    His intention is to play cricket and work as an assistant coach for the club until the current contract expires. He believes that he is still a very good player and will try to negotiate a further contract for one more season. If he is not successful he will return to Sri Lanka with his family and open a cricket training facility for young players. He did not ask his club to sponsor him for permanent residency in Australia and has no intention of doing that. He intends to return to his home country after finishing his career as a professional cricket player and offer something back to his country by setting training facility for young cricket players.

    He has a ‘level one qualifications’ to work as a coach issued by the Board of Control for Cricket in Sri Lanka in July 2002 which is sufficient to work in Australia as an assistant coach.

    I inquired whether he is able to communicate with other players in English language. He stated that terminology used is similar. In addition, there is another international player from Sri Lanka at the club who assist him if he has a problem communicating in English.

    Oral evidence of , Mr Rahul Khurana

14. The witness confirmed his personal details and position at the sponsoring club. He stated that everything stated in his statutory declaration of 9 October 2015 that was submitted to the Tribunal is true and correct. He stated that Camrea Taipans Cricket Club plays in the Division one and apart from the first named visa applicant has another international player from Sri Lanka. He further stated that he occasionally plays for the club and attested that the first named visa applicant does not have problem communicating with the other players.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the first named applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

17. There is no evidence before the Tribunal that the first named applicant failed to substantially comply with the conditions of his previous substantive or subsequent bridging visa.

18. Having regard to the first named applicant’s Declaration of 30 July 2014 and oral evidence given at the hearing I am satisfied that the first named applicant intends to comply with the visa conditions, if the visa is to be granted.

19. I have considered the first named applicant’s personal circumstances; situation in his home country, personal attributes and employment background. I considered the first named applicant’s ability to undertake the nominated position, his ability to communicate with the other players in English language and his immigration history.

20. Based on the documentary evidence submitted, including the first named applicant’s Resume, letter from his cricket club, letter from Cricket Australia dated 5 March 2014 endorsing the skills of the first named visa applicant and oral evidence given at the hearing, I am satisfied that the first named applicant has the skills and ability to undertake the nominated position. I accept that the first named visa applicant’s experience as a professional cricket player and coach is relevant to the activities proposed in this application.

21. I considered the first named applicant’s circumstances in his home country. He gave evidence that he owns two properties in Sri Lanka, that he was employed for the period of seven years, that his wife operated a small business and that there are no security concerns in the city of Panni Pitiya. He gave evidence that he has no military commitments in Sri Lanka and that his brother and parents are living in Sri Lanka. I am satisfied that the first named applicant has substantial personal ties in Sri Lanka.

22. I considered the first named applicant’s intention to return to his home country after finishing his career as a professional cricket player and offer something back to his country by setting training facility for young cricket players. I give significant weight to his statement.

23. I considered the first named applicant’s immigration history. He conceded that he has been granted a Sport visa subclass 421 on six previous occasions. This is his first application for a subclass 401 visa.

24. In considering whether the visa applicant satisfies clause 401.214, the Tribunal had regard to, but is not bound by, the Department’s policy guidance as set out in the Procedures Advice Manual (PAM3). In respect of clause 401.214 PAM3 relevantly states:

    26      Genuine applicant

    …
    26.2      Temporary stay

    In deciding whether an applicant genuinely intends a temporary stay in Australia, officers should consider whether the applicant is attempting to circumvent proper migration channels and use the GB-401 visa to maintain an ongoing residence in Australia. This is particularly relevant when assessing an application for further stay in Australia by a GB-401 visa holder.

    It is not the intention that a visa holder remains on a GB-401 visa for an extended period of time. If applicants apply for a subsequent GB-401 visas officers should consider whether there are any other visa options more suitable for the individual and advise the client accordingly, particularly if it will result in an applicant exceeding four years stay in Australia.

    If, after advice or counseling, a current GB-401 visa holder still wishes to apply for a further visa, officers should consider whether it may be appropriate for a “no further stay” condition (8503) to be imposed on the new visa grant or alternatively, grant the visa (without condition 8503) for a lesser period to give the applicant time to apply for a more appropriate visa. A refusal can also be considered if the applicant has already spent a considerable period of time in Australia, particularly if counseling has already been provided in relation to an earlier visa grant. This is to prevent GB-401 visas being misused by persons who should instead apply for permanent residency or another appropriate visa.

25. There is no evidence before me that the first named applicant was advised or counselled by the department. I note that the department has the option of granting the visa for a lesser period of time or to impose 8503 condition (no further stay).

26. The policy indicates that this consideration is particularly relevant when assessing an application for further stay in Australia by a GB-401 visa holder. The first named applicant is not a GB-401 visa holder.

27. Based on all the evidence before it, including the sworn oral evidence of the first named applicant, I am satisfied that the first named applicant is not attempting to circumvent proper migration channels and use the subclass 401 visa to maintain an ongoing residence in Australia. Having regard to the circumstances of the first named applicant, I am satisfied that it is not the intention of the first named applicant to remain on a Subclass 401 visa for an extended period of time. I take the view that in the circumstances of this case there are no other visa options which are more suitable for the individual.

28. In summary therefore, having considered all the evidence before it, and having had regard to the factors prescribed in cl.401.214(a), cl.401.214(b), and cl.401.214(c) of Schedule 2, I am satisfied that the first named applicant genuinely intends to stay temporarily in Australia to carry out the occupation or activity for which the visa is granted.

29. The Tribunal therefore finds that the first named applicant satisfies cl.401.214. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

30. The Tribunal remits the applications for a Temporary Work (Long Stay Activity) (Class GB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 401 visa:

    ·Cl.401.214 of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member