Benjaber (Migration)

[2021] AATA 1200

Benjaber (Migration) [2021] AATA 1200 (26 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohssine Benjaber

CASE NUMBER:  1930473

HOME AFFAIRS REFERENCE(S):          BCC2019/2891965 CLF2019/39180

MEMBER:Nicole Burns

DATE:26 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

Statement made on 26 February 2021 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Visitor (Class FA) visa – Subclass 600 (Visitor) – validity of the notice to cancel – irregularities in the notice – ground for cancellation – compliance with visa conditions – no work requirement – merely showcasing a hair style on one occasion – mere coincidence – miscommunication with ABF officers – no interpreter – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 120

Migration Regulations 1994 (Cth), r 1.03; Schedule 8, Condition 8101

CASES
Chen, Wei Tung [2004] MRTA 7051
Schwart v MIMIA [2003] FCA 169

Singh v MIMA [2003] FCA 52
SZEEM v Minister for Immigration [2005] FMCA 27
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 600 (Visitor) 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 they were satisfied the applicant was working whilst holding a Subclass 600 (Visitor) visa in breach of a condition of that visa (condition 8101). 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 gave oral evidence in his case via teleconference on 15 February 2021.  The Tribunal also received oral evidence from Ibrahim El Osman, owner of AB’s Barber Shop.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

   Relevant background

6. The applicant is a 39-year-old married man from Morocco.  He and his wife – who is from the Philippines – arrived in Melbourne on 3 September 2019 as holders of visitor visas (Subclass 600).  The main reason for their visit was purportedly to take a break from undergoing fertility treatment (in the Philippines), and visiting his wife’s relatives who live on a farm in Victoria. 

7. On 10 October 2019 the applicant was issued a ‘Notice of intention to consider cancellation’[1] (NOICC) by the Department after Australian Border Force (ABF) officers witnessed the applicant cutting a customer’s hair at AB’s Barber Shop in Melbourne’s CBD. After interviewing the applicant, on 18 October 2019 a delegate for the Minister cancelled the applicant’s visitor visa under s.116(b) of the Act, satisfied that he had breached a condition of his visa not to engage in work. This is the subject of this review.

   [1] Form 1099

8. The applicant has held several bridging visas since his visitor visa was cancelled.  At hearing he told the Tribunal his wife currently holds a student visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

   Validity of the notice to cancel

10. In this case a question arises as to the validity of the NOICC. 

11. The representative submits that the NOICC and cancellation decision is ‘defective’ and has no legal effect because the delegate entered the wrong visa subclass on the NOICC.  Specifically, it is recorded as a Subclass 601 visa whereas the applicant was holding a Subclass 600 visa at the time.   She referred to another case where the representative argued that the visa cancellation was defective as the delegate wrote the wrong visa condition in the NOICC: Chen, Wei Tung [2004] MRTA 7051.

12. The Tribunal has considered whether the NOICC is defective, as submitted, which is a mandatory precursor to cancellation. It notes that under s.119 of the Act, if the Department is considering cancelling a visa under s.116, it must notify the visa holder in the prescribed way, or in a way that the Department considers to be appropriate: s.119(2). No methods of notification have yet been prescribed in the Migration Regulations 1994 (the Regulations) under this subsection. The s.119 notification must inform the visa holder that there appear to be grounds for cancelling the visa; give particulars of those grounds and of the information because of which the grounds appear to exist; and invite the holder to show within a specified time that those grounds do not exist or why the visa should not be cancelled.

13. In addition, under s.120 of the Act, if the decision-maker has relevant adverse information about the visa holder or another person that was not provided by the visa holder and is not included in the s.119 notice, it must give the visa holder particulars of the information, and invite him or her to comment (and specify how the response may be given).

14. The requirement in s.119(1)(a) to give particulars of the grounds requires more than simply stating the ground of cancellation.[2]

    [2] Alam v MIMIA [2004] FMCA 583 at [27]. An appeal was dismissed: MIMIA v Alam (2005) 145 FCR 345.

15. Minor irregularities in the notice of intention to cancel a visa under s.119 will not generally invalidate the notice. For example in Singh v MIMA[3] a notice under s.119 was found to be valid even though it incorrectly referred to s.116(1)(a) rather than s.116(1)(b), as it was clear that the Tribunal did not rely on s.116(1)(a) but on s.116(1)(b).

    [3] Singh v MIMA [2003] FCA 52.

16. Generally, however, strict compliance is required and failure to give adequate particulars or failure to give the visa holder an opportunity to give a meaningful response to the substance of the matters of concern would involve a failure to meet a jurisdictional prerequisite to the exercise of the delegate’s power.[4] Further, if the irregularity results in uncertainty as to whether the decision-maker has properly understood the facts and applied the relevant law, then this may result in a finding of invalidity. For example, in Schwart v MIMIA[5] the cancellation notice mistakenly referred to a temporary rather than a permanent visa. The Court was of the view that it was not clear when the Minister exercised his discretion that he understood the visa he was considering. As a result, the Minister could not form a view as to the nature and consequence of the decision he was engaged in because the material he relied upon did not enable him to do so.

    [4] Alam v MIMIA [2004] FMCA 583 at [34]– [36].

    [5] Schwart v MIMIA [2003] FCA 169, affirmed: MIMIA v Schwart [2003] FCAFC 229.

17. Whilst this case concerned the exercise of the Minister’s discretion to cancel a visa pursuant to s.501 of the Act; however, the principles are equally applicable to notices issued pursuant to s.119.

18. Having regard to the NOICC in this case, the Tribunal is satisfied that although the delegate recorded the incorrect visa subclass – 601 instead of 600 – they referred to the applicant’s ‘visitor visa’, gave the correct date it was granted[6], and identified the correct visa condition – 8101 – attached to that visa which the applicant had allegedly breached by ‘working’.  It appears to be a typographical and/or administrative error by the delegate.  Nonetheless, the grounds for possible cancellation and the basis for reaching that conclusion is clear, thus giving the applicant a meaningful opportunity to respond. 

    [6] On 17/06/19

19. This case is distinguishable from Chen, Wei Tung [2004] MRTA 7051, which identified the wrong visa condition (not subclass).

20. For these reasons the Tribunal is satisfied the NOICC is valid.

    Does the ground for cancellation exist?

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

21. As noted, a visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8101 attached to the applicant’s visa. This condition requires that the applicant not engage in work in Australia.

22. In this case, as recorded in the NOICC and decision record (a copy of which was provided to the Tribunal by the applicant on review), on 10 October 2019, ABF officers witnessed the applicant cutting a customer’s hair on visiting AB’s Barber Shop on William Street, Melbourne CBD.  The applicant said he was working there on a trial for the last two weeks, which was purportedly confirmed by the manager.  During an interview with an ABF officer on 18 October 2019, the applicant said he was not working, was not getting paid, had only cut hair three times, and was not there to work but to talk with friends in Arabic.

23. In a pre-hearing submission provided to the Tribunal the representative argues that there was no non-compliance in the applicant’s case because he was not working at his friend’s hair salon, only ‘showcasing’ a hair style popular overseas, where he worked as a hairdresser.  She submits that showcasing a hairstyle to a friend should not be regarded as ‘work’ as this would not normally attract remuneration in Australia, referring to the definition of work in r.1.03 of the Regulations and Departmental policy guidelines in this respect.  The applicant did not get paid and he refuted that he told the officers that he had been on trial for two weeks.  The representative submitted further that the applicant’s English is limited. 

24. In support of the review the representative provided a signed statement (undated) from Ibrahim El Osman, the owner of AB’s Barber Shop.  In it he confirmed that the applicant visited the barbershop three times including the day the immigration officer came; the applicant has never worked at the barbershop under his ownership and he did not receive any compensation, or salary from the barbershop; and he disagrees with the statement written by the officer that he had confirmed that the applicant was working on trial for the last two weeks.   

25. At hearing the applicant denied that he was working at a barber shop as alleged in the notice.  He explained that he and his wife, who is Filipino, were visiting from the Philippines, staying with some of his wife’s relatives on a farm in Somerville.  One day whilst in Melbourne CBD he walked past a barber shop and decided to get his beard shaved.  Whilst there he started talking to the owner, Ibrahim, who spoke Arabic (he is originally from Lebanon).  He shared with Ibrahim that he was also a barber, having worked in Morocco (where he is from) and then eight years in Dubai, before moving to the Philippines around a year before he visited Australia.  The applicant said he returned to the barber shop twice over the next two weeks, primarily to talk to Ibrahim in Arabic: they had struck up a friendship. 

26. The applicant said on his third visit, on 10 October 2019, he was showing Ibrahim a certain style, using Ibrahim’s son as a hair model when two ABF officers entered the shop.  They accused him of working, in breach of a condition of his visitor visa.  He said he was not working, just sharing barber tips, and had no plans of working.  He said he did not mean to say he had been on a two week ‘trial’, more that he was showing a hair style at that time, as recorded in the NOICC.  He said his English is not strong and there was no interpreter.  Nor was there an interpreter present when he was interviewed around a week later.  The applicant said he recalls the officers at that interview ask him how many times he visited the shop (or so he thought) to which he replied ‘three’; however they wrote that he had stated he had cut hair three times, which was incorrect.  

27. The applicant said he and his wife ran a small Moroccan restaurant in Manilla before they came to Australia in September 2019.  They had been trying to conceive a child and after unsuccessful treatment were advised by their doctor to take a break, which is why they decided to visit Australia.  They only planned to stay for a holiday then return to the Philippines; however, his visitor visa was cancelled, and the review has taken some time.  The applicant said both he and his wife have spent many years working overseas (they met in Dubai) and plan to do so in the future: it was therefore important for him to have the visa cancellation set aside, so as not to have an adverse immigration history in Australia which might impact on future visa applications in other countries.

    Findings on alleged non-compliance

28. The Tribunal has considered the information contained in the NOICC, the applicant’s comments at interview and his oral evidence to the Tribunal, the representative’s submission to the Tribunal, and the oral and written evidence to the Tribunal of the owner of the barber shop in question to assess whether the grounds for cancelling the visa are made out.

29. In doing so, the key question to consider is whether there is sufficient evidence to reach a real state of satisfaction that the grounds are made out. It is well established that civil law concepts such as onus and standard of proof are generally inappropriate in the administrative law context.  However, where, as in visa cancellation cases, the existence of facts grounds the exercise of a statutory power, the onus of establishing those facts is on the Minister (or on review, the Tribunal). In Zhao v MIMA (Zhao), the Court stated:

    The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show because why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.[7]

    [7] [2000] FCA 1235 (French, Hill and Carr JJ, 1 September 2000) at [25] and [32].

30. The Tribunal must rely on grounds referred to in the NOICC and is restricted to consideration of whether there was non-compliance in the manner particularised in the notice: SZEEM v Minister for Immigration.[8]  In this case the NOICC particularises the basis on which the suspicion that the applicant was working in breach of a condition of his visitor visa (8101) arose: being witnessed cutting the hair of a customer when two ABF officers visited the barber shop in question.  The delegate concluded he was working based on this visit and on information the applicant and the owner of the barber shop allegedly told the officers that day – specifically, that the applicant was working on a trial basis for two weeks ­– and on the applicant’s evidence at interview a week later that he had cut hair three times at the barber shop.

    [8] SZEEM v Minister for Immigration [2005] FMCA 27, relying on Allsop J in Saleem v Migration Review Tribunal [2004] FCA 234.

31. The applicant submits he was not working as alleged, nor was he on a two-week trial, attributing this confusion to miscommunication between himself and the ABF officers given his English is limited and there was no interpreter at the time.  At interview – also without an interpreter – the applicant said he did not say he had cut hair three times (as recorded in the decision record) but that he had visited the barber shop three times.  He has explained that he met the owner of the barber shop when he walked in off the street one day for a shave. As noted earlier, he said they began talking in Arabic and the applicant shared that he is also a barber, who had worked in Morocco and the UAE.  On the third visit (in a two-week period) he showed a style to Ibrahim by practising on his son, which is what the ABF officers witnessed.

32. The Tribunal has carefully considered the evidence before it to determine whether the applicant was working in breach of a condition of his visitor visa or merely showcasing a hair style on one occasion, which would not constitute work.  On the one hand it appears quite a coincidence that the applicant happened to be showcasing a hair style at the same time ABF officers visited the barber shop, which raises doubts about whether the applicant was working or not.  However, it cannot be ruled out.  Furthermore, the Tribunal found the evidence of the barber shop owner to be credible and gives it significant weight.  Mr El Osman corroborated the applicant’s account of how they met and the circumstances leading to the cancellation.  He was clear that the applicant was not working for him, on a trial basis or otherwise.  The Tribunal notes the Member telephoned Mr El Osman during the hearing, which he was not expecting. 

33. In terms of the allegation that the applicant told the ABF officers on 10 October 2019 that he was on a two-week trial, the Tribunal considers it plausible this was not what the applicant meant to convey, particularly without an interpreter present and given his limited English, and similarly, with respect to the applicant claiming he told the delegate at interview that he had visited the barber shop three times – confirmed by Mr El Osman in his evidence to the Tribunal – not cut hair three times.  There is no indication on the Departmental file in relation to the cancellation that an interpreter was used during this time, or at the interview a week later.  The Tribunal contacted the Department after the hearing to ask about whether an interpreter was used on these two occasions. In response a Departmental officer stated that she cannot confirm that an interpreter was used on either occasion and that she has gone through all their records and there is no mention of an interpreter.  This lends weight to the applicant’s assertion that no interpreter was used which resulted in some miscommunication. The Tribunal accepts no interpreter was used and therefore mistakes in communication are plausible. 

34. The Tribunal notes there is otherwise no further evidence indicating that the applicant had worked in breach of a condition of his visitor visa.

35. Taking into account these considerations, the Tribunal is not satisfied that the applicant was working in breach of a condition of his visitor visa.  Clearly some doubts have been raised in this case given he was found to be cutting someone’s hair at a barber’s shop on 10 October 2019; however, as noted earlier, a positive state of satisfaction is required for cancellation.  Based on the evidence in the case, the Tribunal is not satisfied that was the case to the requisite level as per Zhao. 

36. 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

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

    Nicole Burns
    Member