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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 2123
Decision Date: 25 June 2025

CaseChat Overview and Summary

The Applicant, a mechanic and sole beneficial owner of Pro Teck, challenged the decision to cancel his visa before the Migration Review Tribunal. His wife, Ms Kohompola Ralalage, who was also facing visa cancellation, gave evidence and made submissions alongside him. Pro Teck, approved as a Standard Business Sponsor, nominated Mr Rajapakshage for a Temporary Work (Subclass 457) visa. Following a Department audit, Pro Teck was issued with an infringement notice for receiving payments from Mr Rajapakshage, amounting to approximately $128,605, which was identified as a benefit for the sponsorship-related event of employing Mr Rajapakshage. The Tribunal was required to determine whether the visa cancellation decision was justified, considering the statutory criteria under the Migration Act 1958 (Cth), particularly s 116, which allows for visa cancellation if a benefit was asked for or received in return for a sponsorship-related event. The Tribunal also needed to assess whether cancelling the visa was in the best interests of the parties, particularly the Australian citizen children.

The Tribunal concluded that although the Applicant received a benefit for sponsoring Mr Rajapakshage, cancelling the Applicant’s visa was not in the best interests of the Australian citizen children. The Tribunal noted the length of time the Applicant had spent in Australia, and the impact of cancelling his visa on his family. Given these considerations, the Tribunal set aside the decision to cancel the Applicant’s visa and substituted a decision not to cancel the Applicant’s Subclass (155) (Five Year Resident Return) visa. This decision was based on the specific circumstances of the case, particularly the impact on the Applicant’s children.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 2025Representative for the Applicant: Ms Noeline PereraATTACHMENT – 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 DefinitionsIn this Subdivision:benefit includes:(a)a payment or other valuable consideration; and(b)a deduction of an amount; and(c)any kind of real or personal property; and(d)an advantage; and(e)a service; and(f)a gift.…sponsorship related event means any of the following events:(a)a person applying for approval as a sponsor under section 140E in relation to a sponsor class;(b)a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class;(c)a person becoming, or not ceasing to be, a party to a work agreement;(d)a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;(e)a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;(f)a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;(g)a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;(h)a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;(i)a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;(j)a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;(k)the grant of a sponsored visa;(l)a prescribed event.

Ratio Decidendi

Legal Principle Established

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.