1507342 (Migration)

[2015] AATA 3318

1507342 (Migration) [2015] AATA 3318 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mian Lon Lim

CASE NUMBER:  1507342

DIBP REFERENCE(S):  Referenced to 1507342

MEMBER:Steve Georgiadis

DATE:3 August 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

Statement made on 03 August 2015 at 6:54pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate was satisfied that the applicant had breached Condition 8115 of his visa which prohibits him working in Australia other than by engaging in a business visitor activity. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal by video-conference from Yongha Hill Immigration Detention Centre WA (IDC) on 27 July 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8115 is attached to the applicant’s visa. This condition requires that the holder must not work in Australia other than by engaging in a business visitor activity.

8. There is no suggestion that the applicant was engaged in business visitor activity, which he confirmed at the hearing.

9. The delegate considered that the applicant had breached Condition 8115 of his visa as a pocket notebook had been located in his room which detailed locations and allegedly cash paid from 26 March 2015 for work in the agriculture industry. The Delegate placed weight on the circumstances that the applicant had arrived in Perth on 13 March 2015 and considered the applicant had obtained employment from 26 March 2015 and had recorded his hours worked in the notebook.  In defence of this, the applicant claims that the notebook is not his and was left in the room by another tenant with whom he shares the room.  He also emphasises that he had admitted to the investigating officer on the morning of 27 May 2015 when his room was searched that his name was written on the front page.  At the hearing, the applicant explained that his name is recorded on the front page as a result of urgently picking up the notebook in order to make notations during an overseas phone call he had in which he sought a piece of paper to write down some superannuation details relating to his employment in Malaysia.

10. He told the Tribunal that his family owns a travel business in Malaysia in which he works as a travel consultant supervisor. The applicant told the Tribunal that the notations on the notebook include his father’s name also, his name and his younger brother’s name, which the Tribunal considers inconsistent with recording of any personal wages relating to the applicant.  The applicant also told the Tribunal that the high-visibility clothing found in his room is much larger than his size and does not belong to him, again emphasising that he shares the room with another tenant whom may work as he is often absent. When asked further questions about the other room tenant, the applicant said that Choo Tran Seng is a very quiet person and did not know much about him from the short period of two months he has been sharing the room with him. The applicant told the Tribunal that the other tenant is not at home in the room for much of the time and that they rarely shared common time in the room when he is there.

11. At the hearing the applicant stated that his purpose for coming to Australia was to visit and tour / travel to see other parts of Perth and Australia as he had done on a previous occasion.  The Tribunal notes that the applicant had first arrived in Australia on 10 July 2014 on a Subclass 601 visa confirmed by the movement details on the department file.  The applicant stated that on that occasion the purpose was to travel to Australia for a visit and that he did tour Sydney and Melbourne staying in backpacker hostels for three days in Sydney and then for seven or eight days in Melbourne and on returning to Malaysia.  The Tribunal notes that the total duration of the visit was for 12 days which is consistent with the applicant’s evidence that he had only two weeks off work and had to return to the family business at the end of the two weeks due to work commitments as he had only planned to take two weeks away from work.  The department’s movement details confirm that he left Australia on 22 July 2014 and had not overstayed any visa.

12. The Tribunal also considered the applicant’s evidence in which he stated that his second arrival in Australia on 13 March 2015 was for the purpose of travel to Perth and specifically to visit his father who had been studying in Perth since February 2015.  He explained that he also explored the possibility of undertaking study in Australia by making enquiries regarding certain courses he was interested to enrol in once he made a decision to pursue study.  He said that he made an application through Winstar migration agents requesting that they make an application for a study visa on his behalf.  He said he paid approximately $3,000 to his migration agent for this purpose and that this explained why a business card belonging to Winstar was found in his wallet in the search of his room.  The applicant denied he was engaged in organising work for other workers on behalf of Winstar or undertaking any work himself.

13. The Tribunal considers that it is plausible that the applicant made enquiries with Winstar for the purpose of study and not for organising or undertaking work in Australia. It is evident that a letter of offer dated 26 May 2015 was issued to the applicant relating to an ELICOS General English course to be undertaken with World College Group over a period of five weeks from 31 August 2015 to 2 October 2015. The Tribunal notes the course fee for this course is $1,075 which is broadly consistent (allowing for application and professional fees) with the amount the applicant claims was paid to Winstar to advise, investigate and obtain a student visa on his behalf.

14. The Tribunal explored these matters in further detail at the hearing and having considered the presentation and demeanour of the applicant and the nature of the evidence given, is satisfied that the applicant has provided his evidence in a straightforward and spontaneous manner, providing full and truthful answers to the best of his ability and knowledge.  In this regard the Tribunal accepts the applicant’s evidence and is inclined to give him the benefit of any doubt relating, in particular, to the denied ownership of the notebook despite the existence of his name on the front page.  The Tribunal accepts the applicant’s explanation that this came about from the applicant jotting down notes during an overseas telephone conversation in which he sought something to write details on.

15. The Tribunal also accepts that the oversize high-visibility clothing is less likely to belong to the applicant given the evidence of another tenant sharing the room and the large size mismatch of the clothing.  The Tribunal accepts in these circumstances the possibility, or likelihood, that these items (including the notebook) belong to a different person and not the applicant. That the applicant has previously visited Australia for a 12 day period and returned without undertaking work or overstaying, together with the evidence that he is employed in the family business as a supervisor in a travel consultancy to which he is keen to return to, persuades the Tribunal that the applicant was not undertaking work while in Australia, but here to visit and tour. The Tribunal places weight on and accepts the applicant’s evidence that his purpose for the travel was to visit his father who was undertaking studies in Perth from February 2015 and to visit other places of interest in Perth as well as exploring the possibility of undertaking study and making an application for a study visa in this regard.  The Tribunal places substantial weight on the evidence of the applicant’s 26 May 2015 Letter of Offer in the General English (ELICOS) course which predates the section 251 search undertaken by search warrant on the morning of 27 May 2015 targeting unlawful non-citizens.

16. Having considered all the available evidence before it discussed and the finding of credibility of the applicant as a witness of truth, the Tribunal is satisfied that the applicant was not unlawfully working during his stay in Australia as a holder of his Subclass 601 visa. Given the above findings, the Tribunal is satisfied that the applicant has not breached condition 8115 of the visa.

17. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

    Steve Georgiadis
    Member