Wasalamuni Arachchilage (Migration) - [2025] ARTA 2123

Wasalamuni Arachchilage (Migration) [2025] ARTA 2123 (25 June 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Suranjith Dilip Kumara Wasalamuni Arachchilage
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2435378
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 (155) (Five Year Resident Return) visa.

Statement made on 25 June 2025 at 6:53pm
CATCHWORDS
MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – applicant received a benefit for sponsoring another person – nominee required to repay wages, superannuation and tax – sponsorship-related event – pecuniary penalty for contravening a civil penalty provision – best interests of the Australian citizen children – length of time in Australia – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198, 245, 359, 486
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013
CASES
CFE16 v Minister and CFD16 v Minister [2020] FCCA 1083
DXQ16 v Minister for Immigration, Migrant Services and Multicultural Affairs [2020] FCA 1184
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The Applicant is a citizen of Sri Lanka who first came to Australia in 2012 on a skilled visa and was granted a permanent skilled visa in 2014. He held a Resident Return (Subclass 155) visa until it was cancelled on 23 September 2024.
The Applicant’s visa was cancelled because a delegate of the Minster found that he had received a benefit in exchange for sponsoring another person for a Temporary Work (Skilled) visa. A delegate of the Minister found that the Applicant’s business, Pro Teck Motors Pty Ltd (‘Pro Teck’) sponsored an applicant, Mr Rajapakshage, for a visa while requiring him to repay his wages, superannuation, and tax as well as undertake unpaid work in his business.
The Applicant has applied for a review of the decision to cancel his visa. He appeared before the Tribunal on 14 February 2025 to give evidence and make submissions and was represented at the review. The Tribunal also heard from his wife, Ms Kohompola Ralalage. A further combined hearing with his wife was held on 22 May 2025, as her visa has also been cancelled.
BACKGROUND
The Applicant is a mechanic, and Pro Teck provided mechanical services. The Applicant was the sole director and secretary of Pro Teck until 22 November 2019 when his wife became the sole director and secretary. The Applicant remained the sole beneficial owner of the business, retaining all the shares.
On 5 August 2017, Pro Teck was approved as a Standard Business Sponsor, and on 17 September 2018, Pro Teck’s nomination of Mr Rajapakshage to work in the occupation of motor mechanic was approved. Mr Rajapakshage was granted a Temporary Work (Subclass 457) visa on 15 December 2018.
Following a monitoring audit by the Department, Pro Teck was issued with a notice of intention to take action, alleging that the Applicant had received payments from Mr Rajapakshage of approximately $128,605 in the period 24 April 2019 to 22 April 2021 as repayment of his wages plus interest.
Pro Teck was issued with an infringement notice on 14 February 2022 under s 245AR of the Migration Act 1958 (Cth) (‘the Act’), which contains a prohibition on asking for or receiving a benefit in return for a sponsorship-related event.
The infringement notice included information that:
·     Mr Rajapakshage said he did not work for Pro Teck on a regular or full-time basis, and from the time his visa was granted on 15 December 2018 he worked two to three days a week until 20 April 2021 when Australian Border Force conducted an unannounced site visit.
·     The benefit received by the Applicant in exchange for sponsoring Mr Rajapakshage was financial payment in the form of repayment of Mr Rajapakshage’s fortnightly salary plus interest as well as unpaid work.
·     Mr Rajapakshage said he provided the benefit with the intention of seeking permanent residency.
·     The sponsorship-related event was employing or engaging, or not terminating the employment or engagement of Mr Rajapakshage to work in an occupation or position in relation to which a sponsored visa has been granted.
·     The payments were made to the Applicant by way of bank transfer from Mr Rajapakshage’s wife at approximately the same time Mr Rajapakshage’s salary was paid to him. This was established by bank statements for accounts held by the Applicant and those of Mr Rajapakshage’s wife.
·     The Applicant conceded that Mr Rajapakshage worked a small number of hours each week from the time his visa was granted, and that Mr Rajapakshage repaid his salary, superannuation and tax to the Applicant’s bank account.
A penalty of $26,640 was imposed.
Information from the penalty notice was provided to the Applicant under s 359A of the Act at the hearing.
CONSIDERATION
Under s 116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out.
The delegate cancelled the visa under s 116(1AC) of the Act which, as it applies to the Applicant, states:
(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a)a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship–related event; or
(b) ….
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).
Subsection 116(4) specifies that the terms ‘benefit’ and ‘sponsorship-related event’ have a meaning affected by s 245AQ of the Act.
Section 245AQ of the Act states a 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.
A sponsorship-related event is defined in s 245Q of the Act as any of the following including:
…
(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;
…
If satisfied that the ground for cancellation is made out, the decision-maker must consider whether the visa should be cancelled. In deciding 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. The matters prescribed in s 116(1A) do not apply to this case.
It follows the issues are:
·Did the Applicant ask for or receive a benefit from Mr Rajapakshage; and
·Was the benefit in return for a sponsorship-related event; and
·If the ground in s 116 (1AC) of the Act exists, should the visa be cancelled?
Does the ground for cancellation exist?
In this case the alleged benefit is the payment of money from Mr Rajapakshage’s wife to the Applicant, and the provision of work by Mr Rajapakshage to Pro Teck without payment.
The sponsorship-related event is Pro Teck sponsoring Mr Rajapakshage for the visa and employing him in a position to work as a mechanic. This is the position for which he was granted a Subclass 457 visa, with a Subclass 457 visa being a sponsored visa.
The Applicant conceded that Mr Rajapakshage repaid his wages and superannuation as well as a GST amount of 10% every quarter and had worked for him. The Applicant disputes he required Mr Rajapakshage to pay interest as part of his salary, however as there was a payment of money to the Applicant from Mr Rajapakshage in return for sponsorship, the components of that payment are not material in establishing the ground in s 116(1AC) of the Act.
The Applicant also disputes that Mr Rajapakshage worked more than a few hours for a few weeks. However, even if this were the case rather than the two to three days per week until April 2021 noted in the infringement report, it is still work without payment and is a benefit to the Applicant. He was the sole director from the time Mr Rajapakshage was sponsored by Pro Teck until 22 November 2019, and remained the sole shareholder throughout the period on which Mr Rajapakshage was reported as being employed by Pro Teck.
The Applicant argues that he was subject to double jeopardy as he had been fined $26,640. Under s 486ZG of the Act, if a person is ordered to pay a pecuniary penalty for contravening a civil penalty provision in respect of particular conduct, the person is not liable to a pecuniary penalty under some other provision of a law of the Commonwealth in respect of that conduct.
In this case, the pecuniary penalty was imposed against Pro Teck, and not against the Applicant personally. While Pro Teck cannot be liable to a fine under another law of the Commonwealth, this does not prevent action being taken against the Applicant personally.
As there was a payment of money and the receipt to the Applicant in exchange for a sponsorship-related event, the ground for cancellation in s 116(1AC) of the Act exists. As that ground does not require mandatory cancellation under s 116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
The are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion where the ground in s 116(1AC) is established.
The Tribunal has had regard to the circumstances of this case, including matters raised by the Applicant, and matters in the Department’s policy guidelines, which refer to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters and which were considered by the delegate in making the decision.
The Applicant came to live in Australia as a skilled migrant in January 2012 after working in the Middle East. He worked for a Mitsubishi dealership for three and a half years while also starting a business with a partner in a mechanical workshop. They grew the business over three years, and he worked during the day for Mitsubishi and then in his business at night.
He found his partner was not a very skilled and stopped this business because he felt his partner was taking advantage of him. When this business ended in 2015/2016, he had a $45,000 personal loan and a $15,000 credit card debt. He held a cleaning job for a period in addition to working for Mitsubishi but wanted to run his own business, so started a mobile mechanic service.
He then rented a workshop, with the previous business selling him tools at a cost of $25,000. At this time, he had also purchased land to build a house but sold the land in February 2016 to clear business debt.
In March 2016 he resigned from Mitsubishi to work in his business, but struggled to make money. By the end of 2016 he had to borrow money from his parents and take out a personal loan so he would not end up with a bad credit rating. He signed another lease of the workshop in 2017.
At the end of 2017 Mr Rajapakshage approached the Applicant to sponsor him. According to the Applicant, Mr Rajapakshage was also from Sri Lanka and, like the Applicant, came from a rural background so the Applicant wanted to help him. Mr Rajapakshage had a certificate in automotive and wanted a visa. The Applicant said he told Mr Rajapakshage his situation was bad, and while he was happy to help, he did not have any money.
They decided Mr Rajapakshage would work for the Applicant so he could get a visa. Mr Rajapakshage approached a lawyer who advised he needed worksheets, a business card and a sign at the front of the workshop. The Applicant said he could not afford these items, and that Mr Rajapakshage would need to pay. Mr Rajapakshage paid for the workshop sign, a website, and a business card to help with his visa application. He did little work for the Applicant but was not skilled as a mechanic.
It was explained to the Applicant in accordance with s 359A of the Act that the infringement notice records that Mr Rajapakshage said from the time his visa was granted on 15 December 2018 he worked two to three days per week until 20 April 2021. The Applicant was advised this information was relied on, the Tribunal may not accept his account that he sponsored Mr Rajapakshage only to help him or that Mr Rajapakshage was only worked a little. He was advised this may outweigh other considerations and result in the visa being cancelled.
The Applicant said at the time of the infringement notice he only conceded Mr Rajapakshage worked because he did not want more court matters. The Applicant said Mr Rajapakshage did a small amount of work cleaning the workshop and for two weeks he worked three to four hours cleaning but worked little after that. He also said Mr Rajapakshage would come to the workshop to drink tea and stay for half an hour or 40 minutes; but at a maximum, he was there only infrequently for three to four hours at a time.
At the least I find that Mr Rajapakshage worked for Pro Teck for several hours per week as conceded by the Applicant at the time the infringement notice was issued.
The Applicant said Mr Rajapakshage paid him $2,600 up front and then each fortnight paid $1,700 plus $300 - $400 in superannuation as well as 10% for GST every three months. The Applicant disputes that this was interest. The Applicant falsely signed timesheets and submitted these to immigration. He said he did not get a benefit from Mr Rajapakshage working for him, and that when the business was doing better, he was going to pay Mr Rajapakshage. I am not convinced by the Applicant’s explanation that the additional amount was GST and find that he was repaid more than he expended on salary and superannuation to his financial gain.
The Applicant said at this time in some months he only earned $500 per month and had to support his family. He has over $150,000 in outstanding debts other than his mortgage, and his parents sold their van and land in Sri Lanka to provide $15,000 which went into the business.
From August 2018 the Applicant said he worked at night as a mechanic with a bus company in addition to working in his business. He employed a trainee and another worker in 2020. He closed the business in November 2024 and has sold the equipment.
On being asked about his current assets and liabilities in Australia, the Applicant said he has a house worth $620,000 with a mortgage of $420,000, and an investment property worth $270,000 with a mortgage of $230,000. He has tools which he thought could be sold for $5,000. His house contents are insured for $50,000. He said he has a debt to the Australian Tax Office of $60,000, personal loans of $60,000 and owes $6,000 on his credit card. He agreed with the proposition that if he sold his assets and cleared his debt he would have around $200,000.
After the hearing, he was directed to provide a statement of assets and liabilities. At the further hearing on 22 May 2025, it became apparent that he had included potential liabilities that he had not incurred, for example, capital gains tax. He had provided little evidence of further loans he said he had from friends, other than a deposit of an amount to his account which was immediately withdrawn and he ass asked to provide further information to supported his assets and liabilities.
His first statement of assets and liabilities showed net assets of over $180,000. On being asked to provide evidence of his assets and liabilities, his later statement disclosed net assets of over $250,000.
The Applicant’s current financial affairs disclose considerable assets. While I accept his income may not have been high in the period he ran his own business, I do not accept his financial circumstances were as dire as he suggests. I further find that if he returns to Sri Lanka, he would return with considerable financial assets.
I also do not accept that the Applicant’s employment of Mr Rajapakshage was as altruistic as he claims. The Applicant’s focus on coming to Australia was for economic benefit, and his focus has been on maximising his income. He was concerned about the business making money, and sponsoring Mr Rajapakshage was another way to maximise his income.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The Applicant is a permanent resident of Australia. He said he came to Australia because his country is struggling financially, and he wanted to make money and help his parents. He initially came on a skilled visa and successfully obtained permanent residency. This visa that was cancelled is a returning resident visa. As the visa that was cancelled is a permanent visa, the gravity of the consequences must be closely considered.
He has established a life in Australia, purchasing a house and investment property and he has worked as a mechanic throughout his time in Australia, fulfilling the purpose of his original visa grant.
His wife’s visa has also been cancelled however in the absence of this cancellation she is also a permanent resident. They have two children who are Australian citizens. Both parents state the children had trouble with the weather in Sri Lanka when they visited, with their son requiring medical care.
The Applicant has returned to Sri Lanka on several occasions, most recently with the entire family in 2022. Apart from the effect on his children and the financial hardship to him and his extended family, the Applicant said there is no other reason he could not return to Sri Lanka. He acknowledges he can obtain work as a mechanic in Sri Lanka.
The Applicant has been in Australia for the purpose for which his visa was originally granted. His children are Australian citizens, the visa that was cancelled is a permanent visa, and he is established in Australia. However, I do not consider these factors to be a compelling reason to remain in Australia.
The extent of compliance with visa conditions
There is no information before me to show any other breaches of visa conditions, either for the visa he currently holds or previous visas, and the Applicant states he has had no other problems with immigration.
The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
The Applicant left Sri Lanka in approximately 2008, as he was working in the Middle East for four years and was then in Australia from 2012. If he returns to Sri Lanka, he would need to re-establish himself and his family and find work. He said other people will say things and laugh at them, which will affect him and his family, and that he will have a poor lifestyle.

The Applicant’s parents, maternal grandparent and maternal great-aunt live together in Sri Lanka. His wife’s parents are in Sri Lanka together with her sister, brother and sister-in-law.
The Applicant would return to Sri Lanka with significant funds to establish himself and work as a mechanic. A previous submission claims they will not be able to support themselves on returning to Sri Lanka as their costs will outweigh the amount the Applicant can earn however, I do not accept they would be unable to support themselves as they can meet the cost of re-establishing themselves in Sri Lanka and the Applicant can work.
The Applicant’s wife has separately had her visa cancelled. She said that if her husband returns to Sri Lanka, she and the children will also return. She does not work in Australia, and they depend on her husband’s income.
The Applicant is concerned about his children’s ability to cope with the weather in Sri Lanka and the effect on their study. His son is currently in kindergarten and his daughter is yet to start school. They have relatives in Australia and his children will miss their cousins. While the children’s grandparents state their children do not speak Sinhala, the Applicant and his wife acknowledged that Sinhala is used at home.
An affidavit from the Applicant’s parents states his father is ill due to age and had to give up his business, and the Applicant provides financial support to his parents, his grandmother and his grandmother’s sister. His wife’s parent state that they spend their income on maintaining themselves and their unmarried daughter and, because they suffer illness, they need money for medical expenses which their daughter sends.
The current Department of Foreign Affairs and Trade report on Sri Lanka[1] (‘DFAT Report’) records that:
In 2022, Sri Lanka experienced the worst economic crisis in its history, resulting in shortages of essential items, lengthy blackouts and hyperinflation, and, with it, major social and political unrest. The Rajapaksas’ perceived economic mismanagement triggered mass protests, known as the Aragalaya (‘struggle’). Mahinda resigned in May 2022 and was replaced by five-time former Prime Minister Ranil Wickremesinghe; Gotabaya, having fled the country, followed suit in July. In the same month, parliament elected Wickremesinghe president with a mandate to restore order and stabilise the economy. Upon election, Wickremesinghe acknowledged Sri Lanka’s ethnic and religious diversity, and the importance of finding solutions to the issues facing the Tamil community, including with respect to land and economic development. These efforts were ongoing at the time of publication, although progress was limited.[2]
[1] Department of Foreign Affairs and Trade, DFAT Country information Report Sri Lanka (Report, 2 May 2024).
[2] Ibid 2.4.
In relation to the economic situation in Sri Lanka, it is reported:
In-country sources told DFAT the economic situation had stabilised since 2022 and reported: essential items were available; inflation was in single digits; the rupee had appreciated; and power cuts had ended. With recoveries in exports, tourism and remittances, foreign exchange reserves have increased, and the government’s deal with the IMF has unlocked additional funding from the World Bank and other multilateral lenders. Nevertheless, cost-of-living pressures remain pronounced, particularly for low-income households, and general living standards have declined. Austerity measures were aggravating these pressures, for example, electricity prices had increased more than 140 per cent since August 2022. According to the Ceylon Electricity Board, over 500,000 customers had been disconnected from the power grid after failing to pay their bills. While the acute crisis was over, economic conditions remained challenging and the recovery process will likely be long. According to the World Bank, Sri Lanka’s economy contracted by 2.3 per DFAT Country Information Report Sri Lanka – MAY 2024 11 cent in 2023, and as at April 2024 was projected to return moderate growth (2.2 per cent) in 2024, showing signs of stabilisation following severe economic downturn in 2022[3].
[3] Ibid 2.17.
The DFAT Report shows an evolving economic and political situation with the potential for political unrest. The economic prognosis about to be headed toward stabilisation, however economic circumstances remain challenging. This supports the Applicant’s claims of hardship to him, his wife and children and their extended family if his visa is cancelled. This includes the uncertainty of the political and economic situation in Sri Lanka.
I accept that cancelling the Applicant’s visa will cause him, his wife and his children distress and that the family will need to re-establish themselves in Sri Lanka in a period of economic and political uncertainty. The children will suffer hardship as detailed further below, with access to medicines limited which is reflected on submissions about their immunisation.
I accept that if the Applicant’s visa is cancelled his earning capacity will be lower and his capacity to provide financial support to his parents and parents-in-law will be reduced which will cause them hardship.
The circumstances in which ground of cancellation arose
The conduct engaged by the Applicant undermines the integrity of the visa programs and exploited an overseas worker.
The Applicant’s picture of financial hardship at the time Pro Teck sponsored Mr Rajapakshage was contradicted by details of his assets and liabilities. He explained the arrangements with Mr Rajapakshage as resulting from him wanting to help a person from a similar background in the context of his own financial hardship, however he also obtained a financial advanatage from the arrangement.
I accept the Applicant came to Australia to increase his financial prospects and that he has worked hard, often in two jobs. I do not accept the level of financial hardship was such that he could not accrue assets such as an investment house, a car and tools. I find that financial gain was a component of his decision to sponsor Mr Rajapakshage while knowing Mr Rajapakshage was not working full time for Pro Teck as a mechanic. While I accept that he wanted to assist Mr Rajapakshage, I do not accept that Mr Rajapakshage performed limited work in the way described by the Applicant or that he was motivated solely by trying to assist Mr Rajapakshage.
The past and present behaviour of the visa holder towards the Department
The Applicant was cooperative with the investigation into Pro Teck and has paid the civil penalty imposed.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
The Applicant’s wife’s visa was separately cancelled under s 116(1AC) of the Act on the same basis as the Applicant’s visa was cancelled. His wife’s visa was not consequentially cancelled under s 140 of the Act. His children are Australian citizens.
As a result, there are no consequential cancellations that would result from the cancellation of the Applicant’s visa.
Mandatory legal consequences of cancellation
If the Applicant’s visa is cancelled, he will be liable to detention under s 189 of the Act and removal from Australia under s 198 of the Act.
Under s 48 of the Act, if the Applicant’s visa is cancelled, there are limited other visas for which he can apply. He will also be subject to Public Interest Criterion 4013 for many types of visas, which would prevent him being granted a visa for three years unless there are compelling and compassionate circumstances (cl 4013(3) of Schedule 4 of the Migration Regulations 1994).
If the Applicant is removed from Australia and his wife and children are not removed, there is a potential for him to be separated from his family. However, his wife gave evidence that if the Applicant’s visa is cancelled, she and the children will return to Sri Lanka with him.
Obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations
Obligations under international agreement include non-refoulement obligation and obligation relating to the best interests of children.
The Applicant does not claim that he cannot return to Sri Lanka, and said he could work as a mechanic. He said he does not have problems in Sri Lanka or any political concerns. The family last travelled to Sri Lanka for approximately a month in 2022. There is no information before me that removing him from Australia would lead to a breach of non-refoulement obligations.
The Applicant has two young children who are Australian citizens. His son was born in 2019 and is nearly six years old, and his daughter was born in 2021 and is three years old.
Article 3 of the Convention on the Rights of the Child (‘Convention’) requires that in all actions concerning children, the best interests of the child shall be a primary consideration.
In CFE16 v Minister and CFD16 v Minister,[4] (‘CFE16 & CFD16’), Judge Riethmuller referred to Article 3 of the Convention and stated:
… it therefore appears that at least a consideration in exercising the general discretion in the context of this case (where it would affect the children of the parties) would require that at least a primary consideration would be the best interests of the child.[5]
[4] [2020] FCCA 1083.
[5] Ibid 19.
Judge Riethmuller states that whether the Convention must be considered in circumstances where a ministerial instruction does not apply did not need to be addressed in the judgment. This was because the delegate proceeded on the basis that the Convention applied, and the Tribunal did not identify to the applicant that it intended to approach the case differently.
Judge Riethmuller said the task required of the Tribunal was to identify the child’s best interests and then consider whether other matters were such as to outweigh the child’s best interests.[6] Judge Riethmuller states that:
… by adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider and deal with the interests of children. The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make the primary consideration the best interests of the child “in all actions concerning children”. The Convention does not make the best interests of the child the only primary consideration, but ensures it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighed.[7]
[6] Ibid 24.
[7] Ibid 25.
This was further explained in DXQ16 v Minister for Immigration, Migrant Services and Multicultural Affairs[8] where Stewart J noted a decision-maker applying Art 3(1) of the Convention ‘would ask whether the “force of any other consideration outweighed” the best interests of the children’.[9] In that case, Justice Stewart found that the process of weighing the importance of the needs of the children against the applicant’s non-compliance with the Act to see if one ‘outweighed’ the other did not appear to have taken place.[10]
[8] [2020] FCA 1184.
[9] Ibid 55.
[10] Ibid.
The Convention applies to the children affected by this decision, and I must consider what is in the best interests of each child. This is a primary consideration and requires a consideration of whether the importance of the needs of the children are outweighed by any other consideration.
The Applicant’s eldest child is in kindergarten, is now speaking English fluently and is accustomed to an Australian life. The Applicant acknowledges his daughter who is younger at three years old has less of a relationship with the community and can adapt to change. Neither child has health conditions. The Applicant and his wife speak Sinhala at home and the children understand Sinhala. Until they started school, his children spoke in Sinhala. The Applicant said his children will be separated from their cousins in Australia which will cause them distress.
The Applicant and his wife said that if the children do not remain in Australia, it will adversely affect their future because they will not be able to provide the benefits enjoyed in Australia, such as educational facilities and health services, and because they will need to find proper accommodation in Sri Lanka. He submits that uprooting his children from their education will disrupt their education, cause emotional distress, and they will face challenges accessing adequate healthcare and social services in Sri Lanka given the current political and economic instability.
The DFAT Report states the government provides free education from primary to undergraduate tertiary level and is compulsory to age 16.[11] The public health system is free for all Sri Lankan citizens, however there were severe shortages of medicine and equipment following the financial crisis in 2022. This is reported to have now eased considerably, [12] and where medication is not available it can be purchased privately if this is affordable. Private health care is available and of high quality.
[11] DFAT Report (n 1) 2.48.
[12] Ibid 2.39.
The children are not currently Sri Lankan citizens, and the access of non-citizens to health care and education is not reported by DFAT. There is no other information before me on whether the children would become Sri Lankan citizens or would otherwise be able to access education and healthcare.
The Applicant expressed concerns about immunisation for his children in Sri Lanka, but also said he did not know about immunisation available in Sri Lanka.
The ease of access to health care, particularly immunisation, and education in Australia and the distress to the children if they relocate to Sri Lanka means that the best interests of each of the children is to remain in Australia.
This is a primary consideration as outlined in CFE16 & CFD16.
Other relevant matters
The Applicant argues that the delay between issuing the civil penalty and the cancellation of this visa, being more than two years, makes the process onerous and disproportionate. While this may be the case, there is no evidence of the effect this has had on the Applicant or his family. I do not consider this weigh for or against the cancellation of his visa.
I would add to this a consideration of the length of time the family has been in Australia and that they are established in the community. The Applicant has been in Australia since 2012, his wife has been in Australia since 2014, and his children were born in Australia. The visas they held were permanent visas.
The Applicant has paid the civil penalty for the contravention, which provides some assurance that he has recognised the gravity of his actions. Given the effect on his family, I do not consider it likely that the Applicant would again place himself in a position where his visa and his wife’s visa may be compromised. The current breach means it is unlikely he would again be approved as a standard business sponsor and will jeopardise any application he may make for Australian citizenship.
CONCLUSION
The difficult question in this case is whether the serious defalcation by the Applicant, involving taking payment in return for sponsoring Mr Rajapakshage for a visa, outweighs a primary consideration of the best interests of his minor children, as well as the hardship he and his family may face on returning to Sri Lanka, the civil penalty imposed on the company and the length of their residence in Australia.
While the gravity of the Applicant’s conduct would generally warrant cancellation, in the circumstances of this case the best interests of his children and the potential hardship on return to Sri Lanka outweigh the gravity of his conduct.
As a result, while there is a ground to cancel the Applicant’s visa, his visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Dates of hearing: 14 February 2025, 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.
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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.