Senevirathna Jayasundara Mudalige (Migration)

Senevirathna Jayasundara Mudalige (Migration) [2019] AATA 3588 (29 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Chameera Lakmal Perera Senevirathna Jayasundara Mudalige
Mrs Viloshini Ascharya Wijesundara Bandara
CASE NUMBER:  1804732
HOME AFFAIRS REFERENCE(S):           BCC2017/1232512
MEMBER:Danielle Galvin
DATE:29 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 408 (Temporary Activity)(Business Sporting Activity) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 29 July 2019 at 12:48pm

CATCHWORDS
MIGRATION – Cancellation –Temporary Activity (Business Sporting Activity) visa – Subclass 408 visa –breached condition 8107 – cricket player – applicant pursued other employment whist engaged by sponsor– to earn more funds – worked as a cleaner – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 348
CASES
Tien & Ors v MIMA (1998) 89 FCR 80
Rani & Ors v MIMA (1997) 80 FCR 379

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 February 2018 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 408 (Temporary Activity) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the first named applicant breached condition 8107 of their visa conditions which prevented him from working with another employer or for himself. The first named applicant had made admissions to the Department that they had been working as a car cleaner to support himself. The applicant submitted a copy of the delegate’s decision with his application to the Tribunal.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.
On 19 March 2019 the Tribunal wrote to the applicant inviting them to comment on or respond to, in writing, the reasons for the cancellation of the visa. The applicant was required to respond by 2 April 2019 and did so.
The applicants appeared before the Tribunal on 20 May 2019 to give evidence and present arguments. The first named applicant gave evidence at the hearing..
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed .
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. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
The Tribunal has received the following documents –
·    Agreement between TALENTIV GROUP PTY LTD & proprietor of the business dated 17/10/16 wherin Chameera Perera was engaged as a sole trader to perform as a cleaner;
·     3 tax invoices dated 16/12/17,15/11/17 and 13/1/18 all stamped paid Talantiv group from C.Perera for 990;14/2/18;
·     letter from Sky Legal 2/4/19 making submission-stating that the applicant arrived in Australia on a Business Sporting Activity Visa (Subclass 408) in 2017 to play for the Growanbrae Cricket Club and stating that the visa cancellation was a setback for the club in the most recently concluded cricket season. and requesting that the interests of the cricket club be considered in the review application;
·    Submission dated 3 June 2019 from Skylegal together with various attachments;The letter states that the applicant would struggle to return to play cricket in Sri Lanka and that the applicant wishes to gain further international experience as a coach before returning to Sri Lanka. The letter further submits that is the applicant is unsuccessful the result would be adverse for Gowanbrae Cricket Club due to the loss of a star player. The letter also alleges that a copy of the contract with Gowenbrae Cricket Club was attached. The Tribunal did not receive any such attachment;
·    Letter from The Gowanbrae Cricket Club dated 28 March 2019 stating that the applicant has been of ”utmost importance” to the club in the 2017/18 season and has been instrumental in helping the senior coach in training activities on a weekly basis.;
·    Letter from the Gowanbrae Cricket Club dated 1 June 2016 stating that the negative impact of the visa cancellation will be that the applicant cannot play for them (the Tribunal assumes that the date of this letter is incorrect as it predates the cancellation of the visa);
·    Letter from Sri Lanka Cricket dated 28 May 2019 stating that “In relation to Chameera’s prospects of returning to actively playing cricket in Sri Lanka it is our opinion that he is unlikely to succeed in doing so due to his age and the gap in playing in Sri Lanka” However, there is an acknowledgement that a career in coaching may be possible with the necessary qualifications and experience.
·    Letter for Cricket Australia dated 16 March 2016 supporting the application in relation to the Glenroy Cricket Club for the 2016/17 season.
·    Glenroy Cricket Club Inc. Player Agreement between the applicant and the Glenroy Cricket club signed 30 June 2015 in which the applicant that he is not to be engaged by any other cricket club or party whilst in Australia during the period of the contract being one year from 1 September 2015 to 1 September 2016.
·    Bundle of photographs;
·    Undated letter from The Gowanbrae Cricket Club to “whom it may concern” describing the applicant as an asset to the club expressing a desire to have the applicant play in the coming season. However, no reference to dates does not inform the Tribunal as to which season is proposed.;
·    Letter from Gymkhana Club, Colombo, dated 26 August 2015 to “whom it may concern” certifying that the applicant played cricket in the 2011/2012 year;
·    Letter from Sri Lanka Cricket dated 24 March 2015 to “whom it may concern” certifying that the applicant played for Colombo Cricket Club in 2012/2013;
·    Bundle of player statistics of the applicant.
Does the ground for cancellation exist?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8107 attached to the applicant’s visa. This condition requires the visa holder not to engage in work for another person or on their own account whilst undertaking the employment the subject of the visa..
The department received information that the applicant was working as a cleaning contractor for TALENTIV GROUP LTD and that the applicant was paid for this work as evidenced by receipts dated 15/11/17. 16/12/17 and 13/1/18.
The applicant confirmed that this information was correct to the department in an interview with them following receipt of the information.
The applicant had signed an agreement with TALENTIV GROUP PTY LTD on 17 October 2016 as a contractor to be paid an hourly rate for 15 hours per week. The applicant provided a business number (ABN 89024570548).
The applicant had stated, to the Department and reiterated at the hearing, that he was unaware of the prohibition in relation to other work not the subject of the visa and was simply trying to support himself whilst in Australia.
The applicant stated that he came to Australia in 2016 to play cricket for Sri Lanka and then signed a contract with Glenroy Cricket Club for the period 2016-2017 and obtained his visa to do so. The Player Agreement with Glenroy Cricket Club Inc. detailed the terms and conditions of the playing agreement with the applicant and stated that the applicant will receive a base salary of $10,000 per year and that the club would cover the applicant’s food, accommodation and return air tickets during the visa period. The agreement is dated 30 June 2015.The agreement also stated that the player was not to be engaged by any other cricket club or party during the period of the contract and that the player is not to receive remuneration outside the club.
It would appear that the applicant, having entered into the agreement with TALENTIV GROUP PTY LTD, on 17/10/16 intended to work outside his visa conditions whilst engaged with Glenroy Cricket Club despite the clear and express terms in his player agreement.
On 31 March 2017 an application was made for a Temporary Activity Visa for sporting activities for the period 1 April 2017 to 31 March 2018. The organisation for whom the applicant was to work as a “coach/professional Player” was the Gowanbrae Cricket Club. The applicant was to receive $10,000 annually, an amount which included food and accommodation. The Tribunal did not receive a copy of the alleged contract referred to in the visa application with The Gowanbrae Cricket Club. The department granted the visa on 22 June 2017. The visa condition 8107 was clearly stated in the visa. It is apparent that the prohibition on working elsewhere was stated in documentation signed by the applicant and despite this the applicant proceeded to enter into an agreement to source other work. Therefore despite the failure to produce the contract with the current cricket club the applicant none-the less breached the condition stated in the visa during the time in which the visa was held.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia
The purpose of the applicant’s travel and stay in Australia was outlined in the visa application dated 31 March 2017 and granted on 22 June 2017. The visa was a Temporary Activity (subclass 408) visa for sporting activities with an express work limitation condition. Initially the applicant was engaged by the Glenroy Cricket Club and the terms of that engagement were that he would receive free accommodation and food and be paid $10,000. The applicant was then engaged by Gowenbrae Cricket Club as a coach/ player. The terms of this agreement were not provided to the Tribunal.
The applicant has submitted that he wishes to stay in Australia to improve his chances of obtaining a coaching job when he returns to Sri Lanka by furthering his coaching experience here. He did not suggest that he would seek to play cricket once he returned to Sri Lanka. The Gowanbrae Cricket Club has stated in correspondence that the applicant is an important part of their club in playing in the 2017/18 season and in training younger players.
Despite attending to these roles the applicant sought alternative employment outside his reason for staying in Australia during his engagement with Glenroy Cricket Club. The applicant stated, at the hearing, that he did not seek permission from the club to do so and he did not advise them as they did not ask him about doing so. The applicant also stated that he has no current contract to play and last played at the end on March 2018. The applicant stated that playing is a season by season proposition.
The reason given by the applicant for seeking alternative employment was to earn more money. The applicant was not paying for accommodation or food or airfares.
The applicant stated that he stopped working as a cleaner in February 2018 and has not been in receipt of an income since. He stated that he is supported by relatives.
The applicant claimed to have been unaware of the work limitations and stated that he had not read the visa conditions but had read his contract to play. The Tribunal notes that the contract with Glenroy Cricket Club prohibited work elsewhere and yet the applicant pursued other employment whist engaged by them. The Tribunal has not sighted the contract with Gowenbrae Cricket Club. The Tribunal therefore places little weight on the applicant’s comments.
The Tribunal finds that the applicant was on clear notice as to the condition within the visa and undertook the breach for purposes outside of the reason for staying in Australia, namely to earn more funds. The Tribunal places little weight on the applicant’s explanation accordingly.
The extent of compliance with visa conditions
Save for the breach of condition 8107 the Tribunal is not aware of any other failures to comply with visa conditions. The Tribunal gives this some consideration in the applicant’s favour.
Degree of hardship that may be caused to the visa holder and any family members
The applicant stated at the hearing that he wished to stay on in Australia to gain more expertise as a coach before returning to Sri Lanka to pursue a coaching career. The Tribunal notes the statement in the letter from Sri Lanka Cricket which advised that the applicant has unlikely prospects of playing cricket upon his return due to his age and absence. The prospect of a coaching career is mentioned. However, the purpose of the visa was in part to coach and in part to play cricket and was not to create training opportunities for the applicant, even though this may be a consequence of performing the role. The Tribunal did not receive evidence about particular coaching qualifications to be sought by the applicant whilst in Australia. The qualifications were not identified in the letter from Sri Lanka Cricket and the employment of the applicant as coach suggests he was qualified to be a coach. There is no evidence therefore that there is any further qualification or further work experience, when he is already engaged to be a coach, to be gained by staying in Australia. The Tribunal therefore gives this argument little weight.
The applicant stated, at the hearing, that he last played cricket at the end on March 2018 and noted that playing was a season by season prospect. The applicant therefore acknowledged that part of the reason for his stay may well have concluded as there was no certainty that he will play in a further season. The Gowanbrae club indicated that they wish him to continue to play. However, there is no verifiable evidence before the Tribunal of the applicant being part of a playing team or a team in training currently. The agents most recent submission stated that a further contract to play would be entered into if the applicant’s review was successful.
The applicant stated that he was not in receipt of any income currently and was supported by relatives.
The terms of the contract with Gowenbrae Cricket Club have not been provided to the Tribunal and any further proposal was not detailed other than to say that the club wished the applicant to continue doing what he had been doing. The applicant is not in receipt of income and is supported by family. Given his plan to return to Sri Lanka to pursue a coaching career there does not appear to be verifiable reason as to why doing so earlier than planned will cause hardship to the applicant as he is currently without an income.
Given his plan is to return to Sri Lanka, the Tribunal does not give much weight to the prospect that the applicant will be any worse off if the cancellation occurred other than his plans to return will be brought forward.
Past and present behaviour towards the Department
The Tribunal finds that the applicant was cooperative with the Department and forthcoming once he was advised that the department had become aware of the breach of the visa. However, the Tribunal finds that this information was not provided independently by the applicant and therefore little weight is given to his cooperation
Circumstances in which the ground for cancellation arose
At paragraph 7 of the delegate’s decision the delegate stated that “visa holder admitted during the initial interview that he was working as a car cleaner and that he did not realise that he could not work as a cleaner to support himself in Australia for his living expenses.”
The reason for the interview was that information had been provided to the Department that the delegate was working as a cleaner at TALENTIV GROUP PTY LTD. At the interview the applicant confirmed that he was undertaking cleaning work which was in breach of his visa conditions and at the time that he entered into a contract with Glenroy Cricket Club which also prohibited extra work being undertaken by the applicant.
The applicant claimed to be unaware of the work limitations. As stated above the Tribunal gives this assertion limited weight given the clear and stated restrictions in the visa and historic employment agreement.
Consequential cancellations under s.140 of the Act
The applicant’s wife, Viloshini Ascharya Wijesundara Bandara, as a member of the family unit of the applicant, would also have any visa she had received as a result cancelled if the applicant’s visa was cancelled. This would result from the fact that she is a member of the family unit of the applicant .The applicant’s wife gave no evidence at the hearing and no submissions have been made on her behalf. The Tribunal therefore gives this consequence limited weight.
Legal consequences of a decision to cancel the visa
The Tribunal notes that if the applicant’s visa was to be cancelled he would become an unlawful non-citizen. This situation may leave the applicant with limited options to apply for further visas. It is the intended outcome of the legislation when cancellation occurs.. If the applicant did not leave of his own accord he may become liable for detention under section 189 and removal under section 198 of the Act. Given that the applicant has given evidence that he intends to return to Sri Lanka and, as he currently holds a Sri Lankan passport, there is no impediment in relation to the applicant returning to Sri Lanka. The Tribunal therefore gives little weight to this consideration in favour of the applicant.
Australian international obligations
There is no information before the Tribunal that would indicate circumstances that would engage Australia’s international obligations. The Tribunal places no weight on this.
Any other relevant matters
The Tribunal is not aware of any other relevant matters and is therefore unable to place any weight on this consideration.
Considering the circumstances as a whole and having regard to the evidence before it, as discussed above, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 408 (Temporary Activity) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Danielle Galvin
Member

[2019] AATA 3588

29 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice