Kohompola Ralalage (Migration) - [2025] ARTA 1334

KOHOMPOLA RALALAGE (MIGRATION) [2025] ARTA 1334 (25 JUNE 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Mrs Chaya Nishanthi Edirisinghe Kohompola Ralalage
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2435380
Tribunal:Kate Millar
Place:Adelaide
Date:25 June 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 25 June 2025 at 6:58pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – benefit for sponsorship-related event – husband’s business purported to employ worker for visa sponsorship – worker’s wife repaid his salary into husband’s bank account – husband’s control of joint bank account – applicant now nominally director/secretary but not shareholder of business, but not at time of relevant events – civil penalty paid by business and standard business sponsorship cancelled – combined hearing with husband’s review – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1A), (1AC), (1AD), (2), (3), (4), 245AQ

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel Mrs Kohompola Ralalage’s Subclass 100 (Spouse) visa under s 116 of the Migration Act 1958 (Cth) (‘the Act’).
The delegate cancelled the visa under s 116(1AC)) on the basis that Mrs Kohompola Ralalage had received a benefit in return for a sponsorship-related event. In summary, a delegate of the Minister found that her husband’s mechanical services business, of which Mrs Kohompola Ralalage was a director and secretary, purported to employ Mr Rajapakshage as a mechanic to sponsor him for a visa, and that Mr Rajapakshage repaid his wages and other amounts.
The issue in this case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Mrs Kohompola Ralalage appeared before the Tribunal on 22 May 2025 to give evidence and present arguments. She was represented in relation to the review. This was a combined hearing with that of her husband Mr Wasalamuni Arachchilage, as his visa has also been cancelled. The Tribunal received oral evidence from her husband Mr Wasalamuni Arachchilage.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

BACKGROUND

Mrs Kohompola Ralalage is a citizen of Sri Lanka. Her husband, Mr Wasalamuni Arachchilage, who is also a citizen of Sri Lanka, came to Australia in 2012 on a skilled visa to work as a mechanic. Mrs Kohompola Ralalage met her husband in 2010 after which they married in 2014, and she arrived in Australia on a spouse visa in 2015.
Her parents and siblings are in Sri Lanka. Before coming to Australia, Mrs Kohompola Ralalage did not work. On arriving in Australia, she completed a one-year English language course and a patient assistance course. She has worked in her husband’s mechanical business, and said she currently makes some money baking cakes.
Mrs Kohompola Ralalage and her husband have two children, a son born 2019 and a daughter born 2021, who are Australian citizens.

CONSIDERATION OF CLAIMS AND EVIDENCE

Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. These include the ground set out in s 116(1AC).
The Migration Regulations 1994 (Cth) (‘the Regulations’) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.

Does the ground for cancellation exist?

A visa may be cancelled under s 116(1AC) if the Minister is satisfied that:
· A benefit was asked for or received by, or on behalf of, the current visa holder, from another person in return for the occurrence of a ‘sponsorship-related event’; or
· A benefit was offered or provided by, or on behalf of, the current visa holder to another person in return for the occurrence of a ‘sponsorship-related event’.
The term ‘benefit’ includes a payment, advantage, service, gift, deduction of an amount, or any kind of real or personal property: s 116(4) and s 245AQ. 'Sponsorship-related event’ has the meaning given by s 245AQ. These definitions are set out in the attachment to this decision.
Subsection 116(1AC) applies whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; whether or not the sponsorship-related event relates to the current visa or any previous visa held; and whether or not the sponsorship-related event occurred: s 116(1AD). If a visa may be cancelled under s 116(1AC), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply.
As set out in the decision of the delegate, the Minister considered that:
·     Pro Teck Motors was approved as a standard business sponsor in 2017 and was approved to sponsor Mr Rajapakshage as a mechanic in 2018. In December 2018, Mr Rajapakshage was granted a Temporary Work (Skilled) (Subclass 457) visa.
·     Mrs Kohompola Ralalage was the sole secretary and director of Pro Teck from 22 November 2019. However, her husband remained the sole owner of all shares.
·     Pro Teck was issued with an infringement notice that imposed a civil penalty of $26,640.
·     This infringement notice stated that:
o   Mrs Kohompola Ralalage’s husband received payments of $128,605 between 19 April 2018 and 22 April 2021 from Mr Rajapakshage.
o   Mr Rajapakshage said these payments were made with the intention of seeking permanent residency.
o   The payments were made by Mr Rajapakshage’s wife to Mrs Kohompola Ralalage’s husband’s account at approximately the same time his salary was paid each fortnight.
o   Mrs Kohompola Ralalage’s husband conceded that Mr Rajapakshage worked a small number of hours for Pro Teck each week from the time his visa was granted, and that Mr Rajapakshage had repaid his salary, super and tax.
o   Following the payments to her husband, regular large transactions were made into a joint account held by Mrs Kohompola Ralalage and her husband.
·     Payment of the civil penalty amount was completed on 13 May 2022, and on 26 May 2022, Pro Teck’s approval as a standard business was cancelled.
Mrs Kohompola Ralalage submits that she did not have control of the bank accounts and did not receive a benefit from the arrangements made by her husband. The delegate states she received the benefits of the payment from Mr Rajapakshage as the money paid by him to her husband was transferred to an account she held jointly with her husband.
Mrs Kohompola Ralalage was the sole director and secretary of Pro Teck from 22 November 2019. In her statement dated 11 April 2024, she states that she contributed to the business as an administrative assistant from early 2017; including managing the cashier, some accounting, ‘and occasionally maintaining the positions of director’. She stated she consistently maintained this role besides when she was pregnant. In her statement she claimed ‘that although I contributed to the business, I was unaware of this matter that has put my Australian visa in question.’
Mrs Kohompola Ralalage claimed she did not know who the business employed, and thought it was two or more people. On being asked what ‘managing the cashier’ entailed, she said she did day to day small things with the bank. She said that when she arrived in Australia, she did not have much money and all household expenses were paid by her husband; and that if she needed money, she would ask her husband to give her cash or deposit money in her personal bank account. She said that while she was present when the joint account was opened; she did not operate this account or have access to the account.
Mrs Kohompola Ralalage has limited English and did not work in Sri Lanka. She was employed by the business but could give little detail about the tasks she undertook. I do not consider she did more than nominal tasks.
The money paid by Mr Rajapakshage went into her husband’s account. It was then transferred to their joint account, and Mrs Kohompola Ralalage said she did not access this account and asked her husband for money when she needed money. She said he paid all the bills for their accommodation. I am not satisfied she received a payment from Mr Rajapakshage.
A company of which she was the sole director and secretary for some of the period Mr Rajapakshage was purportedly employed, did receive a benefit by way of unpaid work. Mrs Kohompola Ralalage was not a shareholder in the company, and did not directly benefit from any unpaid labour.
Mrs Kohompola Ralalage was not a director at the time when Pro Teck applied to be a standard business sponsor, or when the application to sponsor Mr Rajapakshage was made. The money Mr Rajapakshage arranged to be paid to her husband was to enable the employment arrangement to continue, and there was no event that would lead to a payment for not withdrawing the sponsorship. It is difficult to see how there was an event as required by the definition of a sponsorship-related event that Mrs Kohompola Ralalage caused to occur.
As I am not satisfied Mrs Kohomppola Ralalage directly received a benefit, or that any indirect benefit she received was in return for a sponsorship-related event, I am not satisfied that the ground in s 116(1AC) of the Act exists.
As I am not satisfied that the ground for cancellation in s 116(1AC) of the Act exists, it follows that the power to cancel the applicant’s visa does not arise.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Date(s) of hearing: 22 May 2025
Representative for the Applicant: Ms Noeline Perera

ATTACHMENT – Relevant extracts from the Migration Act 1958 (Cth)

116 Power to cancel
…
(4)In this section:
benefit has a meaning affected by section 245AQ.
sponsorship related event has the meaning given by section 245AQ.
245AQ Definitions
In this Subdivision:
benefit includes:
(a)a payment or other valuable consideration; and
(b)a deduction of an amount; and
(c)any kind of real or personal property; and
(d)an advantage; and
(e)a service; and
(f)a gift.

…
sponsorship related event means any of the following events:
(a)a person applying for approval as a sponsor under section 140E in relation to a sponsor class;
(b)a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class;
(c)a person becoming, or not ceasing to be, a party to a work agreement;
(d)a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;
(e)a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;
(f)a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;
(g)a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;
(h)a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;
(i)a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;
(j)a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;
(k)the grant of a sponsored visa;
(l)a prescribed event.