South Caulfield Cricket Club (Migration)

South Caulfield Cricket Club (Migration) [2020] AATA 3217 (10 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  South Caulfield Cricket Club
VISA APPLICANT:  Mr Rasika Sampath Perera Dehiealage Don
CASE NUMBER:  1829099
DIBP REFERENCE(S):  BCC2018/2647101 CLF2018/358417
MEMBER:Michael Ison
DATE:10 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.
Statement made on 10 June 2020 at 3:12pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa –breached PIC4020–applicant submitted bogus document – supporting letter has been altered by someone who did not have the authority to do so– requirements of PIC 4020(1) should not be waived– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.03, Schedule 2, cls 408.216, 408.222
CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 September 2018 to refuse to grant the applicant a Temporary Activity (Class GG) visa under s.65 of the Migration Act 1958 (the Act).
The review applicant is the South Caulfield Cricket Club Inc. A0005670U, which was represented in relation to this review by Mr Jonathon Restarick who is the current President of the Club. Mr Restarick confirmed to the Tribunal that he has the authority of the Club to represent the Club in relation to this review and to give evidence on behalf of the Club. Where the context permits in this decision the review applicant means Mr Restarick on behalf of the Club, such as when referring to his submissions or evidence. The Club in the abstract is referred to as the Club.
The visa applicant is Mr Sampath Perera, a 37 year old Sri Lankan national who is a professional cricketer. Mr Perera is referred to in this decision as the visa applicant.
The visa applicant applied for the visa on 15 July 2018. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.408.216(1) of Schedule 2 to the Regulations which requires the applicant to satisfy several public interest criteria including public interest criteria 4020 (PIC 4020).
The review applicant provided the Tribunal with a copy of the primary decision. In that decision a delegate of the Minister found that there is evidence that the applicant provided, or caused to be provided, a bogus document or false and misleading information because a letter on Cricket Australia letterhead dated 26 June 2016 was provided in support of the application and the delegate found the letter had been altered in material respects by someone other than Cricket Australia such that the letter submitted was a bogus document with the effect that the applicant did not meet PIC 4020(1). As there were no relevant compelling or compassionate or compelling circumstances before the delegate, the delegate refused to grant the visa.
On 12 March 2020 the review applicant provided the following written submission to the Tribunal:
AAT Appeal 1829099 & 1829384
1.     Rationale for Appeal:
a.     Unfair dismissal of Visa application (x2) due to simple sponsor admin error (old documentation item) for 2018/19 season
b.     Unfair barring of applicant ‘Sampath Perera’ for a documentation error of the sponsor
2.     Request:
a.     Removal of barring for Sampath Perera (and wife) as a future applicant for Visa to Australia in season 2020/21 and beyond
b.     Noting it has already impacted Sampath and SCCC for two seasons (18/19 and 19/20)
3.     Basis for Refusal and Barring:
a.     Incorrect letter of recommendation by Cricket Australia (re-using recommendation from previous season – 2016/17)
4.     Appeal basis:
a.     Procedure to use past recommendation letter had been fine for multiple years of paper based + first year of online process in 2017 (re-using old letter). Instructions not perfectly clear it had to be current and for each season
b.     On 2nd year (2018) of online process, submitted using the same prior year (2016) recommendation as accepted in 2017
c.     Received notification this wasn’t valid and required ‘new’ letter and explanation as to why using ‘old’
d.     SCCC contacted Cricket Australia and sourced immediately (within weeks) and resubmitted with current letter of recommendation. We acknowledge we didn’t explain why, but believed this was clearly an honest admin error and quickly rectified. Also didn’t believe helpful to point out this same document was accepted previous year
e.     Although now complete and current, Immigration dept refused visa and banned Sampath (and his wife)
5.     Sound character of applicant
a.     Sampath has been a model visa user since 2012/13 season without any visa date or procedure blemishes, or behavioural issues while in Australia
b.     We have all lost 2 seasons of engagement , and for Sampath employment.
c.     Its unreasonable to have a multi year ban on the applicant; when an admin mistake not of his doing
d.     Note: We have successfully gained approval for Bradley Erasmus (UK) using learnings to avoid admin error
Support Materials:
-          This letter
-          Letter from Sampath
-          Visa application document from 2016 (successful)
-          Visa application 2017 (successful)
-          Visa application 2018 (unsuccessful)
-          Revised CA Letter of recommendation
(emphasis in the original)
With that submission the review applicant provided the Tribunal with a copy of the visa applicant’s 2016 (paper based) and 2017 and 2018 (electronic) applications for a Subclass 408 visa, a letter from the visa applicant dated 12 March 2020 seeking that he not be banned from entering Australia for three years due to the actions of the Club and a letter from Cricket Australia dated 3 September 2018 endorsing the visa applicant.
The review applicant appeared before the Tribunal on 19 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Sri Lanka from the visa applicant and from Mrs Renuka Pieris, the visa applicant’s wife and a secondary applicant for a Subclass 408 visa as a dependent of the visa applicant.
At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, the Tribunal’s role in conducting a merits review of the visa applicant’s application for a Subclass 408 visa, including that the Tribunal is independent of the Department and is not bound by the delegate’s decision, and how the hearing would proceed. The Tribunal informed the review applicant and the visa applicant that it would allow them to address the Tribunal toward the end of the hearing on any matter they felt was relevant to the review.
As is explained in these reasons in greater detail below, the Tribunal wrote to Cricket Australia after the Tribunal hearing and received a submission from Cricket Australia dated 22 May 2020. The Tribunal then wrote to the Club and visa applicant on 27 May 2020 providing each of them with a copy of the information from Cricket Australia. The Tribunal received submissions in response to that letter from the review applicant and from the visa applicant on 9 and 10 June 2020, respectively.
The Tribunal has considered all of the information before it, including the evidence of the review applicant and visa applicants at the Tribunal hearing, the written submissions from the review applicant and the visa applicant and the information on the Tribunal’s file and the Tribunal’s copy of the Department’s file.
As the visa applicant and secondary visa applicant were offshore at the time of application for the visas, separate applications for review were filed by the Club and separate Tribunal files were established, with Mrs Pieris’ file being known as Tribunal file 1829384, for which the Tribunal has prepared separate reasons for decision. The Tribunal heard the two review applications concurrently.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.408.216(1) for the grant of the visa. Broadly speaking, this requires that:
·there is no evidence that the visa applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the visa applicant held in the 12 months before the application was made: PIC 4020(1); and
·the visa applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the visa applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
·the visa applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
·neither the visa applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the visa applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?
The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
Clause 408.222(3) specifies that the applicant:
(a)must seek to enter Australia to be a player, coach, instructor or adjudicator for an Australian sporting team or organisation;
(b)have been invited to participate in the activity referred to in (a) by a sporting organisation that is lawfully operating in Australia;
(c)must have entered into a formal arrangement that provides for their participation in the activity in (a);
(d)must provide a letter of endorsement from the national sporting body that administers the sport in Australia certifying that the applicant has the ability to play, coach, instruct, or adjudicate at the Australian National level; and
(e)the sporting club sponsoring the applicant must be a temporary activities sponsor or long stay activity sponsor and pass the sponsorship test or if the application is made from outside Australia and the stay is less than 3 months must pass the support test.
The Club submitted the visa application from within Australia for the visa applicant and the review applicant gave evidence, which the Tribunal accepts, that:
·The visa applicant wishes to enter Australia to play and coach cricket professionally for the Club;
·The Club, which the Tribunal finds is a relevant sporting organisation in the sense required by cl.408.222(3)(b), has invited the visa applicant to play and coach cricket for the Club, intended initially to be for the 2018 – 2019 season;
·The Club has entered into a formal contract with the visa applicant for this purpose;
·The Club provided a letter of endorsement from Cricket Australia dated 26 June 2016 as the national sporting body responsible for the administration of cricket in Australia, with that letter certifying that the visa applicant has the ability to play, coach or instruct at the Australian national level; and
·The Club passes the sponsorship test in relation to the visa applicant.
On 15 July 2018 the Club electronically submitted a letter, with the file titled ‘CA Letter for Sampath.docx’, purported to be from Cricket Australia dated 26 June 2016 to the Department in support of the visa application to meet the requirement of cl.408.222(3)(d).
However, the delegate found the letter purported to be from Cricket Australia had been altered other than by Cricket Australia and was not genuine in the following ways:
·The Cricket Australia letter date text at the top of the letter has been amended/changed from the date 20 June 2014 to instead reflect the date 20 June 2016 (sic)
·An amendment in the body of the letter to indicate the 2016/2017 season, where it had shown 2014/2015 season.
·The letter is a different layout from letters provided by Cricket Australia for the 2018/2019 season
·Cricket Australia letter has a different letter head than other letters received for Cricket Australia for the 2018/2019 season.
·The date at the top of the page and the date within the letter have been amended to reflect a more up to date cricket season, however, this is not the 2018/2019 season and will not be accepted.
The Tribunal asked the review applicant about the circumstances surrounding the submission of the Cricket Australia letter dated 26 June 2016 to the Department as part of the visa application. The review applicant told the Tribunal:
·The visa applicant had been sponsored by the Club to play and coach cricket for it for six seasons previously and the Club was very happy with the services the visa applicant rendered;
·In 2017 the application process for the Subclass 408 visa went online and so the Club used the same documentation it had used for the paper based application in 2016 for the 2016 – 2017 season in 2017 for the 2017 – 2018 season and this documentation was accepted by the Department, including the same letter from Cricket Australia dated 26 June 2016;
·The Club did not realise that the Cricket Australia letter needed to be updated each year for each visa application;
·In 2018 the Club followed the same process as previously and used all the information from the 2017 visa application for the visa application in 2018 that is the subject of this review, including the letter from Cricket Australia dated 26 June 2016;
·The review applicant is not aware who, when or how the Cricket Australia letter was altered;
·When the review applicant became aware the Department required an updated letter from Cricket Australia the Club obtained an up to date letter from Cricket Australia dated 3 September 2018 and submitted it to the Department;
·The Cricket Australia letter initially submitted to the Department had been photocopied each year for successive visa applications and had deteriorated in quality, with the implication being that may have affected the appearance of the dates in the letter. The Tribunal reviewed the copy of the Cricket Australia letter now showing the date 26 June 2016 that the review applicant had provided to the Tribunal as part of the review applicant’s submission dated 12 March 2020. The Tribunal then showed the review applicant that letter during the hearing. It was clear that the letter was provided to the Department in electronic form and there had been minimal degradation in its reproduction quality; and
·He had made inquiries with Cricket Australia to see if the amended letter had come from it, without success.
The Tribunal accepts this evidence.
Following the Tribunal hearing the Tribunal wrote to Cricket Australia, provided a copy of the letter dated 26 June 2016 and asked if that letter had been issued by Cricket Australia.
On 22 May 2020, Cricket Australia responded to the Tribunal that:
We have undertaken reasonable enquiries to ascertain the validity of the correspondence attached to your email of 4 May 2020, being a Cricket Australia letter from Laura Smith to Jonathan Restarick dated 26 June 2016 (the CA Visa Support Letter).
After making these enquiries we are unable to locate any records verifying CA Visa Support Letter. In making these enquiries we also note the following:
·26 June 2016 falls on a Sunday;
·Laura Smith was employed by Cricket Australia at the time and was authorised to send any visa support letters; and
·Visa support letters are only provided for the upcoming domestic season and so if CA had issued the CA Visa Support Letter in any event, that visa support would only have been provided for the 2016/17 season.
On 27 May 2020 the Tribunal sent the Club and the visa applicant a letter in accordance with the procedure set out in s.359A of the Act providing the Club and visa applicant with a copy of Cricket Australia’s response dated 22 May 2020. The Tribunal’s letter explained:
·The Tribunal has conducted checks which confirmed that the enclosed letter of endorsement dated 26 June 2016 was not issued by Cricket Australia and therefore is a bogus document under the Act.
·Enclosed is a redacted email from Cricket Australia dated 22 May 2020 confirming the letter dated 26 June 2016 was not issued by Cricket Australia.
This information is relevant to the reviews because the Tribunal could form the view that the letter of endorsement dated 26 June 2016 the Club submitted to the Department in support of the applicants’ visa applications for Subclass 408 visas was not issued by Cricket Australia and therefore is a bogus document as that term is defined by s.5 of the Act.
The Act defines bogus document as:
“bogus document” in relation to a person, means a document that the Minister reasonably suspects 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 made knowingly.
It is a requirement for the Subclass 408 visa, in clause 408.216 of Scheduled 2 to the Migration Regulations 1994, that the applicants for the visa meet Public Interest Criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994. PIC 4020(1) requires, amongst other things, that there must be no evidence that the applicant has given or caused to be given a bogus document in relation to the application for the visa.
The consequence of the Tribunal relying on the adverse information in relation to the reviews is that the Tribunal may find the letter of endorsement dated 26 June 2016, purportedly from Cricket Australia, is a bogus document because it is counterfeit and was not issued by Cricket Australia. This may cause the Tribunal to find that the primary visa applicant does not meet PIC 4020(1). This finding would also have the consequence of meaning the secondary applicant could not meet the secondary criteria for the grant of a Subclass 408 visa as they would not be a member of the family unit of a person who holds a Subclass 408 visa.
In addition, if the primary visa applicant is refused a Subclass 408 visa on the ground that he does not meet PIC 4020(1), then this would also have the effect that the secondary visa applicant does not meet PIC 4020(2). PIC 4020(2) requires that the Minister, or in this case the Tribunal, must be satisfied that during the period starting 3 years before the application for the visa was made and ending when the decision to grant or refuse the visa is made, the applicant and each member of the family unit of the applicant must not have been refused a visa because of a failure to satisfy PIC 4020(1).
If we rely on this information in making our decisions, it would be the reason, or a part of the reason, for the Tribunal to affirm the decisions of the delegate that are under review.

On 9 June 2020 the review applicant responded:
As stated in previous correspondence and tribunal hearing, the document presented in 2018 application, was re-used from previous years records. There was no intent or action to present a non-authorised document in the 2018 submission.
The club does, however, acknowledge the research performed by the AAT, confirming with Cricket Australia that the 2016 letter had not been officially provided. The committee of the cricket club has tried to contact the Membership officer during that earlier period to better understand the situation without luck. That committee member is no longer associated with the club and not responding to contact. As such, the cricket club committee can’t challenge the information from Cricket Australia and therefore can’t confirm the veracity of the document presented.
I do want to re-affirm that a) there was no intent to deceive from current members of the committee; and b) there was no fault of the applicants (Mr Perera and Ms Pieris).
Acknowledging the fault of the cricket club, we do hope some relief for Sampath, as he has already served a number of years of penalty.
On 10 June 2020 the visa applicant responded:
·I would like to drag your attention to your above email and with its attached references. Despite I had all the qualifications and requirements to play Australia as an overseas player, my visa was refused with 3 year ban in 2018 upon a document submitted by the club.
·I’m a professional cricketer and cricket is my prime profession. I have been playing cricket in England since 2012 and Australia since 2013. I have made so many achievements during the time I was playing for South Caulfield club and I was able to contribute to uplift the club to in to a advanced play division in the tournament. I have had all the qualifications and requirements to play cricket in Australia as an overseas player.
·I have been honestly involving in my profession. Due to this situation, my whole life has faced a lot of problems losing my job as overseas player. I need to continue my carrier as a professional overseas cricketer and make up my future in brilliant manner. According to my understanding, if the club caused to be submitted a fault document,I kindly request you consider the Justice for me.

Finally, I would be very grateful to you, to have considered the situation with humanity and in empathetic manner, I kindly and earnestly request you to waive off this 3-year ban. (sic) (emphasis in original)
On the evidence before the Tribunal the Tribunal finds that someone has used an electronic version of a 2014 Cricket Australia letter endorsing the visa applicant for the 2014 – 2015 season and manually changed the dates in that electronic version to make it appear as though the letter was provided for the 2016 – 2017 season and that this occurred without the authority or knowledge of Cricket Australia. This was apparently successful as the visa applicant played for the Club in the 2016 – 2017 season.
The review applicant has then given evidence that the information supplied, in paper form, for the visa application to enable the visa applicant to play for the Club for the 2016 – 2017 season was submitted, this time electronically, as part of the visa applicant’s visa application to enable him to play for the Club for the 2017 – 2018 season. This was apparently successful as the visa applicant played for the Club that season.
The review applicant confirmed the Club did not approach Cricket Australia for updated letters for the visa applicant’s visa applications to play for the Club in the 2017 – 2018 season or the 2018 – 2019 season as the Club merely used the Cricket Australia letter it had submitted previously.
It was not until the Cricket Australia letter was provided to the Department for a third time, this time in support of the visa applicant’s visa application for the 2018 – 2019 season that the Department rejected the letter as not being a genuine Cricket Australia letter because it was not on up to date Cricket Australia letterhead and because the dates within the letter had been amended.
The Tribunal notes that the review applicant, in the submission dated 9 June 2020, now acknowledges that Cricket Australia did not alter the letter and that someone at the Club did and he has acknowledged the “fault” of the Club in this regard.
However, the review applicant gave evidence during the Tribunal hearing that he feels the Club just used the same letter three years in a row and what has occurred was an administrative error that the Club has now corrected, as evidenced by its successful sponsoring of another professional cricketer, a Mr Erasmus, to play for the Club for the 2019 – 2020 season. The review applicant confirmed this view in the submission dated 9 June 2020 by emphasising there was no intent by the Club to submit a non-authorised document with the application for the 2018 – 2019 season and that what occurred did so without malice.
The Tribunal understands the review applicant’s evidence to be that this is not a situation where fraud is involved and is an innocent, accidental or unintended matter which therefore should not attract the operation of PIC 4020(1).
The Tribunal does not accept the review applicant’s evidence that this is a case of a purely administrative error. The delegate identified that the dates on the original Cricket Australia letter have been altered from 2014 dates to 2016 dates and the Tribunal has accepted this has occurred and found it did not occur with the authority of Cricket Australia. Cricket Australia has confirmed it did not issue the letter in the altered form. The review applicant has conceded the letter was altered by someone at the Club and the Tribunal finds that this is when the deception originally occurred so that by the time the Club submitted the letter in support of its application for the visa applicant to play for the Club in the 2018 – 2019 season, the letter was a bogus document, notwithstanding that the letter had also been submitted in previous successful visa applications for the visa applicant.
This is not to say that the Tribunal doubts the review applicant’s evidence that the Club has used the same letter three years in a row, that the review applicant did not personally alter it and is not aware of who did alter it. The Tribunal has accepted that evidence and it is supported by the nature of the alterations to the Cricket Australia letter. The fact that the Cricket Australia letter has had its dates altered from 2014 dates to 2016 dates indicates to the Tribunal that the letter was purposely altered some years ago, probably in 2016 for the visa applicant’s visa application for the 2016 – 2017 season (which was successful), and has not been altered recently. If the letter had been altered more recently then presumably the dates would have been altered to 2018 dates given the visa applicant’s application at the time it was lodged was to play and coach cricket in Australia for the 2019 – 2020 season.
There was limited utility for the Club in making unauthorised changes to the Cricket Australia letter rather than obtaining a current letter. As subsequent events showed, it was a relatively straightforward matter for the Club to obtain an up to date endorsement that met the requirements of cl.408.222(3)(d) from Cricket Australia when it submitted the letter from Cricket Australia dated 3 September 2018. The Tribunal accepts the review applicant’s submissions that there was no intent to deceive or malice associated with what the Club submitted in relation to the application for the visa applicant for the 2018 – 2019 season, however the deception occurred earlier when someone at the Club altered the Cricket Australia letter that was submitted with the visa application.
The Tribunal also notes that on the 2016 Nomination for a long stay activity position form, a copy of which was provided to the Tribunal by the review applicant in his submission to the Tribunal dated 12 March 2020, the review applicant completed the sponsor’s declarations on 31 August 2016 which provided:
WARNING: Giving false or misleading information is a serious offence.
I declare that I:
·have read and understood the information provided to me in this application.
·have provided complete and correct information in every detail in this application, and in any attachments to it.
·understand that if I give false or misleading information, the application may be refused.
… (sic) (emphasis in original)
These declarations reflect the strict obligations placed by the migration law on visa applicants and those who assist them or provide information on their behalf to provide correct information and not to provide incorrect information. There are sound public policy reasons for these obligations in protecting the integrity and efficient administration of Australia’s migration programs.
The Tribunal finds that the first purported letter from Cricket Australia, with the 2016 dates, provided to the Department by the Club on behalf of the visa applicant is a bogus document as that term is defined in s.5 of the Act because it has been altered by a person who did not have the authority, in this case from Cricket Australia, to do so by changing the dates within the letter in the manner described in the primary decision.
The definition of a bogus document does not require the Tribunal to find who altered the Cricket Australia letter or how it was altered, only that it has been altered by someone who did not have the authority to do so.
This means the visa applicant does not meet PIC 4020(1) as he has caused, through allowing the Club to submit documents on his behalf in support of his visa application, a bogus document to be given to the Department in the form of a letter from Cricket Australia that was altered without Cricket Australia’s authority to do so.
Should the requirements of PIC 4020(1) or (2) be waived?
The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
For the following reasons, the Tribunal is not satisfied that there is sufficient evidence before it to establish that the requirements of PIC 4020(1) should be waived.
The review applicant and visa applicant do not claim that there are compelling circumstances that affect the interests of Australia.
Mrs Pieris gave evidence that she and her husband had no role in relation to the Cricket Australia letter being provided to the Department and they relied completely on the Club in this regard which had always successfully sponsored them in the past.
Mrs Pieris also gave evidence that the issues with the Cricket Australia letter has deprived the visa applicant of the ability to play and coach cricket in Australia for the 2018 – 2019 season and the 2019 – 2020 season. Mrs Pieris told the Tribunal if the refusal of her husband’s visa application is affirmed by the Tribunal on PIC 4020 grounds then her husband will be banned from travelling to Australia for another three years and that may also affect their ability to travel to other countries which will cause the visa applicant a significant further loss of income.
The review applicant and Mrs Pieris both gave evidence that the visa applicant was a first class cricket player for Sri Lanka and initially played cricket professionally year round in Sri Lanka, England and Australia, ceasing his travel to England from 2016 when he married Mrs Pieris such that his playing and coaching in Australia is an important source of income for their family. Mrs Pieris told the Tribunal that she and the visa applicant feel their name has been adversely affected even though they have not done anything wrong and they feel helpless about the situation.
The Tribunal accepts Mrs Pieris’ evidence.
The visa applicant gave evidence that the situation has caused him a great deal of stress and lost income and as a 37 year old professional cricketer he has a limited time in which he can earn an income in that role and he wishes to continue to come to Australia where he has enjoyed the support of the Club and feels he has contributed positively to the Club. This evidence was supported by the evidence of the review applicant. The Tribunal accepts this evidence.
The Tribunal reassured the visa applicant and Mrs Pieris that they have not done anything wrong and the Tribunal makes no adverse findings against the visa applicant or Mrs Pieris. The Tribunal has considerable empathy for the situation the visa applicant and Mrs Pieris have found themselves in, through no fault of their own.
The review applicant explained in detail the visa applicant’s role as an all-round player and as a coach at the Club and his contributions to the on-field successes of the Club and its development of players and ability to attract new players and sponsors. The review applicant told the Tribunal the Club had lost players, fields fewer teams, has had less competition success and has lost sponsors and he attributes a “fair proportion” of these developments to the absence of the visa applicant for the past two seasons.
The review applicant told the Tribunal the Club sponsored Mr Erasmus, a cricketer from England, for the 2019 – 2020 season but he was not an accredited coach and did not have the seniority or the skill of the visa applicant to develop players.
The Tribunal explained to the review applicant that it had considerable empathy for the visa applicant and Mrs Pieris but that for the requirements of PIC 4020(1) to be waived there needed to be compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa, not the interests of the visa applicant or Mrs Pieris. In short, as the visa applicant and Mrs Pieris are not Australian citizens, Australian permanent residents or eligible New Zealand citizens, the considerable compassion the Tribunal feels for the visa applicant and Mrs Pieris does not provide a ground for the setting aside of the requirements of PIC 4020(1).
The review applicant explained to the Tribunal that the Club exists to benefit the community through the provision of sporting and social opportunities and all the benefits they bring, including, in the Tribunal’s words not those of the review applicant, community connectedness.
The review applicant’s evidence is that the Club consists of many members, players and sponsors who are Australian citizens and due to the absence of the visa applicant the Club now has less players which means there are less people playing cricket and enjoying the benefits of playing a team sport outdoors, particularly at the junior level where they have lost two teams during the visa applicant’s absence, with the effect that those children are not playing cricket and have also lost the positive role model that the visa applicant provided.
The review applicant also told the Tribunal that the Club has lost two business sponsors that contributed AUD500 and one business sponsor that contributed AUD1,000 to the Club annually, because of the Club’s reduced player numbers and reduced ability to generate business for those sponsors. Overall, the loss of players and sponsorship the review applicant told the Tribunal had caused a significant loss of revenue for the Club reducing its ability to make the contribution to the community that it did when it sponsored the visa applicant as a player and coach.
The Tribunal does not accept these circumstances amount to compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa.
The Tribunal asked the review applicant whether he knew if any of the junior players the Club had lost had gone to play for another club or were now playing another sport. The review applicant told the Tribunal he did not know that.
There is no evidence before the Tribunal that the business sponsors the Club has lost have suffered a loss of business as a result of withdrawing their sponsorship of the Club or whether they have taken up other sponsorship opportunities to replace their sponsorship of the Club.
For these reasons the Tribunal finds that neither the review applicant nor the visa applicant has demonstrated that there are compelling circumstances affecting the interests of Australia or that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, that justify the grant of the visa.
The Tribunal accepts that this outcome may be difficult for the Club to accept, particularly as it only repeated what had worked for previous applications and when alerted to the need to provide an up to date letter from Cricket Australia was quickly able to obtain an up to date and unaltered letter from Cricket Australia that if provided to the Department in the first instance, almost certainly would have resulted in the visas being granted.
The Tribunal also accepts that this outcome may be even more difficult for the visa applicant and Mrs Pieris to accept. The Tribunal accepts they were not involved in altering or providing the bogus Cricket Australia letter and that the visa applicant had successfully applied for six previous Subclass 408 visas and based on the information before the Tribunal, complied with the requirements of each of those visas.
The Tribunal also accepts that as a consequence of being found to have not complied with PIC 4020(1) the visa applicant will be barred from applying for certain types of visas, including a further Subclass 408 visa, from the date of this decision for three years, subject to any further appeal rights the applicant may have or choose to exercise: PIC 4020(2). The net effect of this provision may be that the visa applicant is not able to coach and play cricket in Australia again until 2023 – 2024 season, which means the visa applicant will not have played cricket in Australia for five seasons by that time.
If the requirements of PIC 4020(1) could be waived on the grounds of compassionate or compelling circumstances for visa applicants, rather than for an Australian citizen, permanent resident or eligible New Zealand citizen, the Tribunal may have been minded to waive that requirement for the visa applicant given his circumstances and the consequences the Club’s actions will have for him. Regrettably for the visa applicant, the Tribunal does not have that discretion.
The obligations on visa applicants and those who assist them to provide correct information and not to provide incorrect information is a strict obligation which underpins the integrity of and efficient administration of Australia’s immigration system. While these provisions have worked in a manner that could be viewed as having harsh consequences in the circumstances that the visa applicant and Mrs Pieris have found themselves, there are very sound public policy reasons for these provisions and for their enforcement.

Therefore, the Tribunal finds that the requirements of PIC 4020(1) should not be waived.
Has the applicant satisfied the identity requirements?
PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity. The visa applicant has provided extracts of his passport that satisfies the Tribunal as to his identity.
Therefore, the visa applicant meets PIC 4020(2A).
Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?
PIC 4020(2B) requires that neither the visa applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).
There is no information before the Tribunal to indicate that the visa applicant or any member of his family unit has been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).
Therefore PIC 4020(2B) does not apply.
Conclusion
The applicant does not satisfy PIC 4020(1) for the purposes of cl.408.216(1) because he has caused, through allowing the Club to submit documents on his behalf in support of his visa application, a bogus document to be given to the Department in the form of a letter from Cricket Australia that was altered without Cricket Australia’s authority to do so. This means the visa applicant does not meet the requirements of cl.408.216(1) of Schedule 2 to the Regulations, which is one of the primary criteria for the grant of a Subclass 408 visa. This means the applicant cannot be granted a Subclass 408 visa.
At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity), so there is no information before the Tribunal to indicate that the visa applicant meets the criteria for the grant of any other subclass of visa and the visa applicant does not make this claim.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Temporary Activity (Class GG) visa.
Michael Ison
Senior Member
ATTACHMENT: MIGRATION REGULATIONS 1994 - SCHEDULE 4
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document 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 was made.
(2)The Minister is satisfied that during the period:
(a)starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A)The applicant satisfies the Minister as to the applicant’s identity.
(2B)The Minister is satisfied that during the period:
(a)starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (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 Australian citizen, 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.
…
Migration Act 1958 s.5 - Interpretation
(1) In this Act, unless contrary intention appears:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects 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 made knowingly.
…

[2020] AATA 3217

10 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing