Senevirathna Jayasundara Mudalige (Migration)

This matter concerned an appeal against the cancellation of a Subclass 408 (Temporary Activity) visa. The applicant, Senevirathna Jayasundara Mudalige, had entered Australia to play cricket under the terms of his visa. The dispute arose when the applicant, while engaged by a cricket club, also took up employment as a cleaner to earn additional funds, thereby allegedly breaching a condition of his visa. The decision under review was the affirmation of the visa cancellation.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was established. This section permits the Minister to cancel a visa if satisfied that the visa holder has not complied with a condition of the visa. The Tribunal was also required to consider whether, having found a ground for cancellation, the discretion to cancel the visa should be exercised in the applicant's circumstances.

The Tribunal found that the applicant had breached condition 8107 of his visa by engaging in employment outside the scope of his sporting activity. Evidence presented included an agreement for the applicant to perform cleaning services and tax invoices, which indicated he had pursued this alternative employment. The applicant’s assertion that he was unaware of the work limitations was given little weight, particularly as his contract with the Glenroy Cricket Club explicitly prohibited other engagements. The Tribunal concluded that the applicant had undertaken the breach to earn more funds and that this was outside the purpose for which his visa was granted.

Having satisfied itself that the ground for cancellation existed, the Tribunal exercised its discretion to affirm the decision to cancel the applicant's visa. The Tribunal considered the circumstances as a whole, including the applicant's submissions and the impact on the cricket club, but ultimately found that the breach of visa conditions warranted cancellation. The Tribunal affirmed the decision to cancel the applicant's Subclass 408 visa.