weerasinghe silva (Migration)

[2018] AATA 370

weerasinghe silva (Migration) [2018] AATA 370 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Madura Prasanna Weerasinghe Silva
Mrs Thilini Nisansala Weerakoon

CASE NUMBER:  1713459

DIBP REFERENCE(S):  BCC2017/904174

MEMBER:Alan McMurran

DATE:19 February 2018

PLACE OF DECISION:  Sydney

DECISION:Primary Applicant: The Tribunal affirms the decision not to grant to the first named applicant the Temporary Activity (class GG) Subclass 408 Visa.

Secondary Applicant: The Tribunal affirms the decision not to grant the secondary applicant a Temporary Activity (class GG) Subclass 408 visa

Statement made on 19 February 2018 at 3:57pm

CATCHWORDS
Migration – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – Whether applicants genuinely intend to stay in Australia temporarily – Professional athlete – Required to travel internationally for work – Previous holder of multiple short stay visas - Extended stay in Australia – Purpose for which visa was originally sought – Original purpose no longer operative

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 408.213(c)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 June 2017 to refuse to grant the visa applicant a Temporary Activity (Class GG) Subclass 408 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 March 2017. The delegate refused to grant the visa on the basis that sub-regulation 408. 213(c) in cl. 408.213 in schedule 2 of the Migration Regulations 1994 is not met.

3. The delegate found that the visa program was not intended for visa holders to remain in Australia for extended periods of time, and where the applicant’s visa history demonstrated a cumulative period of more than four years. As a result, the delegate was not satisfied the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted.

4. The applicants appeared before the Tribunal on 1 February 2018 to give evidence and present arguments. The Tribunal received oral evidence by telephone from the applicant’s brother, Udara, who is a permanent resident living in Darwin and from Graham Tribe, an Australian citizen, also by telephone from Darwin. The applicant himself was not represented for the review by a registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies the requirements of the Regulation 408.213 and genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted.

7. The relevant Regulation for visa Subclass 408 provides as follows:

   408.213

   The applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to:

   (a)  if the applicant has held a substantive visa—whether the applicant has complied substantially with the conditions to which the last  substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

   (b)  whether the applicant intends to comply with the conditions to which the Subclass 408 visa would be subject; and

   (c)  any other relevant matter

8. The delegate found and the Tribunal takes no issue with the finding that the applicant meets sub-regulation 408.213(a) and 408.213(b).

9. The only issue for consideration is whether there is any other “relevant matter “in accordance with sub-regulation 408.213(c) to which the Tribunal may have regard in determining this review.

10. Departmental procedural guidelines set out that as regards 408.213(c) “other relevant matters” for consideration for a genuine entrant for temporary stay might include

    ·the applicant’s circumstances in his home country;

    ·whether the position has been created to secure a person’s stay;

    ·the personal attributes and vocational or employment background of the applicant, and

    ·the applicant’s proficiency in English

11. The Tribunal does not read the guidelines as an exhaustive statement of what matters might be relevant in consideration of the issue whether the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa was granted. All matters need to be considered on a case by case basis as submitted by the applicant for consideration.

    Available Material on Review

12. The Tribunal had available to it the Department’s file, the Tribunal’s file and the oral evidence obtained at hearing from the applicant, his brother, and from Mr Tribe for the sponsor.

13. The Department’s file included:

    ·the Application,

    ·details from the Department’s movement records,

    ·details of the Bridging visa dated 7 March 2017,

    ·completed Level II Coaching Certificate from Cricket Australia for 2013,

    ·bank records,

    ·contract with Nightcliff Cricket Club in Darwin (the sponsor) as a player and junior coach for 2017 season,

    ·sponsor’s approval notice as a Temporary Activities Sponsor issued by the Department and valid from 15 February 2017 until 15 February 2022,

    ·Decision Record made 7 June 2017

14. The Tribunal file included no additional information, other than a written submission from the applicant dated 15 November 2017.

15. The oral evidence for consideration in addition to the applicant himself came from the applicant’s brother, referred to below, and from the former president of the sponsor cricket club, Mr Tribe, also referred to below.

16. The applicant confirmed that he first came to Australia on 6 January 2010 on a sport visa. The applicant’s movement records from the Department file shows that the applicant departed Australia on at least seven occasions between September 2010 and his last arrival on 3 October 2016.

17. The applicant is currently 33 years old and married and his spouse is the secondary applicant for this review. The applicant is currently living in Darwin and awaiting the outcome of his visa application. The secondary applicant did not appear and did not give evidence.

    The applicant’s submissions

18. The Tribunal explained the process of review to the applicant and asked if he had sought any assistance or representation. The applicant said that he had not sought assistance from a registered migration agent and had a very limited knowledge of the process or the requirements in the Regulations.

19. The Tribunal asked him why he had not returned to Sri Lanka .The applicant responded that he wished to remain in Australia to play and coach cricket, as invited by the sponsor currently to do so.

20. The applicant explained that he had been schooled in Sri Lanka until age 19 when he decided to play club cricket in his village (Payabala). He said he was a good cricketer and in fact had started to think about a professional cricket career at the age of 13. He said in Sri Lanka he played first-class cricket where it was paid employment, and he did so in the period from 2003 until 2009. He described himself as a professional cricketer.

21. He said that he was first invited in 2010 to come to Australia and play cricket by the Daltone Cricket Club near Dandenong in Victoria, and he stayed initially for approximately five months. At the end of the cricket season in Melbourne, he went to England and played cricket in Devon for a further period of approximately five months before returning to Sri Lanka. The applicant said that in 2011 and 2012 he was playing cricket in Sri Lanka, whereas the Department’s movement record shows that he returned to Australia on 8 October 2011 and remained in Australia until he departed again on 27 September 2012. The Tribunal is satisfied that the Departmental record accurately sets out the movements of the applicant in and out of Australia and that the applicant’s recollection specifically of dates during the period may not be entirely accurate. The applicant did explain that there were differences in the cricket seasons both domestically and overseas and it appears he was compelled to follow those seasons in order to continue playing cricket year-round.

22. The applicant gave a history of playing cricket in Darwin in 2012 and then Melbourne and where he alternated between the two locations where the cricket seasons did not overlap during a two-year period until 2014.

23. The applicant said that in 2015 he spent a year playing cricket in Melbourne with Leongatha Town Cricket Club, returning to Sri Lanka for a season in March 2016 and then back to Victoria in October 2016. That is confirmed by the movement record which shows the applicant’s departure on 13 March 2016 and arrival on 3 October 2016. The applicant applied for a further visa in March 2017 (refused June 2017)  to cover the cricket season with the sponsor from 1 April until 1 October 2017.Because of the time taken for this review, that cricket season has already passed.

24. The Tribunal asked why the applicant on completion of the season in October 2017 had not returned to Sri Lanka, as he had already achieved the objective in his visa application which covered that period. The applicant was evasive in his response stating that he did not understand the rules or regulations and that if invited by the club (his current sponsor) to continue then he wished to do so. He said that he did not intend to stay permanently, but wished to now complete studies for a Level III Coaching Certificate while continuing to play cricket in Darwin with the sponsor. He said his spouse is working in Darwin at a childcare early learning centre and is supporting him in his goal along with the sponsor to complete his Level III Coaching Certificate.

25. The applicant said that he had no reason not to return to Sri Lanka other than to be able to complete his Coaching Certificate Level III while still in Australia. The applicant however did not produce any evidence that he had made an application with Cricket Australia or what requirements there were for completing the coaching certificate. There is no evidence that he has made the application, or any application for any further or appropriate visa to enable him to do so.

26. The Tribunal put to the applicant its concern that his movement history was a relevant matter to consider in this review and that he had been in Australia continuously for a period in excess of five years in total, since 2010, notwithstanding departures back to Sri Lanka and overseas to play cricket. That history is confirmed by the Departmental movement record.

27. The Tribunal put to the applicant that the record did not appear to be that of someone who genuinely intended to remain temporally in Australia. It appeared to be the record of someone who intended to intermittently make applications to coincide with the cricket season in Australia and so as to be able to continue his professional career in that fashion.

28. The Tribunal suggested to the applicant he may wish to obtain some advice in that regard not having done so already and so that he was aware of any further or other migration opportunities that may be open to him and that he may wish to consider in the circumstances. The applicant responded that he did not intend to remain here permanently.

    Udara 

29. The applicant’s brother gave evidence by telephone. He said that he did not live with his brother, although they were both currently residing in Darwin. He said that he had become an Australian citizen himself in 2017.

30. He said that he was not aware of the details as to why his brother’s application had been refused or what the rules or regulations require. He said that he was aware his brother was looking to obtain more qualifications and had discussed with him doing a level III Coaching Certificate. He said he had also discussed with the applicant making application for permanent residency, as the applicant had been living in Australia more than he lived in Sri Lanka in the past 10 years.

31. Udara said that he was not aware of any limitation on obtaining temporary visas. The Tribunal explained to him the purpose of the 408 visa and that it was not intended to apply to someone who did not genuinely intend to stay in Australia temporarily. He said that the fact the cricket seasons are different in Melbourne and Darwin makes it more difficult for him to remain in one place continuously. The Tribunal responded that this was not a reason or relevant matter to grant the application for yet a further temporary visa.

32. He said that he had very little knowledge about this particular application or the associated rules and what was required for a temporary visa and he was not really able to assist the Tribunal with any other relevant information.

    Mr Tribe 

33. The applicant also requested that the Tribunal speak with Mr Tribe who was telephoned from the hearing. Mr Tribe is a resident in Darwin and indicated to the Tribunal that he was not specifically authorised on behalf of the sponsor to speak about the sponsorship as he was no longer the President.

34. He had written a letter dated 14 November 2017 as club President, supporting the applicant’s review. He had been the president of the cricket club but no longer filled that role. Mr Tribe could not remember what was in his letter as he said he did not have a copy in front of him, so the Tribunal read to him from the contents. He confirmed that the contents were correct, that the applicant was an accredited coach and performed all his roles in a professional manner.

35. He said that he was aware the applicant wanted to continue to play cricket “for the next couple of seasons”. He said he was a good cricketer and would be welcome at the club, although he could not say what the decision the club would make about the number of coaches and players that would be required or who would be on the roster. That would ultimately be a matter for the committee to determine. He said the applicant had not given any indication he wanted to move away from the club and that while he remained there he would be an asset. He said however if he left, the club would be able to find another coach. He said that he had not discussed the applicant’s hearing with the current cricket club President, but could do so if he were asked to by the applicant.

    Is the applicant genuinely intending to stay temporarily in Australia?

36. The Tribunal has paid careful regard to the statements made by the applicant at the hearing. The Tribunal has also taken into account the written submission referred to above and the documents included on the Department’s file, the Tribunal file and the decision by the delegate.

37. The applicant’s written submission dated 15 November 2017 states the applicant was “writing this letter as remonstration for the refusal of my Visa application”. His submission proceeds to say that the “main purpose” for the application for the temporary visa is related to his occupation as a professional cricketer and qualified coach. He says he was “gaining experience” in order to attempt a high performance coaching exam for Level III. His submission goes on to outline his playing history and states that his current Visa application was for a limited duration of six months where he “specifically put the dates 1 April 2017 to 1 October 2017 which is only for six months”. His submission points out that he has not breached his visa conditions by overstaying, which is not contentious and in which respect the Tribunal is satisfied. The applicant denies that he is attempting to “circumvent proper migration channel and will not use the temporary work Visa to maintain an ongoing residence”. He says that his stay in Australia has been prolonged because of his “successful performance and achievements”.

38. The Tribunal is mindful of the Procedural Advice Manual (PAM) available to the Department and which as matter of policy recommends that delegates consider whether the applicant is in fact attempting to circumvent proper migration channels by the perpetual use of temporary visas. Having heard the applicant at hearing, the Tribunal is satisfied that it is not the intended consequence of the applicant to circumvent the migration programme. Instead, the applicant relies on his performance and achievements during his stays in Australia, which may have unintentionally because of his successes led him to make several applications to extend his stays, but without intending to circumvent the migration programme by doing so.

39. The applicant has not sought to obtain any information from a registered migration agent or provided evidence of any other enquiries he may have made to educate himself about the process of review and the requirements for a temporary entry 408 visa. The applicant had very little knowledge about the matter and the Tribunal proposed at the hearing to provide him with a period of 14 days within which to seek advice and make any further submissions. The applicant was informed that if he needed an extension of time to do so, he should apply to the Tribunal in writing setting out the reasons why more time was required. Since the hearing, the Tribunal has not received any further communication or submissions from the review applicant.

40. The Department records show that since 4 January 2010, the applicant has been the recipient of three visas class TE-421, three visas class GB-401 and two visas class WA-010. In that time, being approximately eight years, the applicant has resided primarily in Darwin as well as in Melbourne, and returned to Sri Lanka on at least two occasions for family functions including a wedding. The Tribunal is satisfied the applicant has completed study in Australia to obtain a coaching certificate as well as obtaining employment as a professional coach and cricketer with clubs in both Melbourne and Darwin and has been successful in those roles.

41. There is no objective evidence however or other relevant matter which the Tribunal can point towards which would satisfy a finding that the applicant genuinely intends to stay in Australia temporarily. On the contrary, the number of visa applications, the time already spent here in excess of five years, and the stated intention to continue to study, coach and play cricket in Australia while he is successful in doing so, both with the sponsor and as the opportunity arises, points towards an intention to remain in Australia for as long as he is able on a temporary visa.

42. The applicant has put forward no other strategy in his submissions, such as any application for a further substantive visa, and has not indicated that he intends to do so. Instead, he relies principally on his successes in Australia as a reason for granting the visa. The Tribunal is not satisfied that the measure of the applicant’s successes is a relevant matter that would support the granting of yet a further temporary visa. The issue is not focused on the achievement of the objective alone. It is to be hoped in the Tribunal’s view that all applicants on temporary visas will achieve their goals and objectives and be successful in doing so. The achievement of the applicant’s objective however is not such a relevant matter that alone warrants the issue of a further temporary visa. It might be said to the contrary that having achieved the objective, the applicant might now safely return home. The Tribunal is satisfied that the emphasis in the Regulation is for the applicant to have a genuine intention to “stay temporarily”, as opposed to staying temporarily and being successful in doing so. The Tribunal is not satisfied or persuaded by the applicant’s submission that his “successful performance and achievements” as a player and coach in Australia warrant granting the visa.

43. The applicant was given an opportunity to provide further information and submissions in that regard but has not done so, and has not sought any extension in order to provide such information to the Tribunal.

1. The applicant’s circumstances in his home country are such that he has no reason not to return, and he stated that he has every intention of resuming his professional cricket career once he returns to Sri Lanka. The Tribunal is satisfied that neither the applicant’s brother nor the former president of the cricket club have offered any other fact matter or circumstance that might be regarded as relevant to this review and for satisfying the Tribunal that the applicant genuinely intends to stay temporally in Australia. On the contrary, the statements from the applicant’s brother and from the former president of the sponsor club tend to indicate and infer that the understanding of those witnesses is that the applicant intends to remain in Australia as long as he can do so and so long as a position is offered to him or available to him to coach and to play at the cricket club.

2. The Tribunal is satisfied that it is not a “relevant matter” for consideration that there is in this case a position on offer to the applicant to continue to play and coach cricket in Darwin, or a stated willingness on the applicant’s part to depart at some future date, perhaps when the cricket season has ended. The cricket season has already finished and the period sought by the applicant until October 2017 has passed, and the applicant still seeks to remain in Australia and has not returned to Sri Lanka despite having no reason not to do so. The applicant’s written submission was dated 15 November 2017 after the stated period when he said that he intended to return to Sri Lanka.

3. The Tribunal is satisfied in all the circumstances of this case that the applicant does not genuinely intend to stay temporarily in Australia for the purpose for which the visa was originally sought, namely to enable him to play cricket and coach in the 2017 club season. The Tribunal is satisfied that the applicant seeks to extend the period of his stay in Australia with the visa application to enable him to coach and play cricket for yet another season either in Darwin, or Melbourne, or both.

4. The Tribunal is satisfied there is no evidence to show when or how the applicant might complete the requirements or examination for a level III Coaching Certificate and the applicant has had ample opportunity to put those arrangements into place and to make submissions in that regard, and has not done so.

5. For these reasons the Tribunal is not satisfied the applicant genuinely intends to stay temporally in Australia for the purpose for which the visa might be granted and having regard to any relevant matters put forward by the applicant for this review. The Tribunal is satisfied there are no other relevant matters to which it might have regard and to support a finding that the applicant genuinely intends to stay temporally in Australia.

6. It follows that the Tribunal must affirm the decision not to grant the applicant the temporary visa as sought.

   DECISION

7. The Tribunal affirms the decision not to grant to the primary review applicant the Temporary Activity (class GG) Subclass 408 visa.

   Secondary Applicant 

8. The secondary applicant is not a member of the family unit of a person (the primary applicant) who holds a Subclass 408 (Temporary Activity) visa and the requirements of sub regulation 408.311 are not met.

9. The Tribunal therefore affirms the decision not to grant the secondary applicant a Temporary Activity (class GG) Subclass 408 visa.

   Alan McMurran
   Member