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

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).
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.
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.
The applicant was represented in relation to the review by his registered migration agent. He participated in the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant background
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.
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…

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.

Continue reading Benjaber (Migration)

Details

AGLC: Benjaber (Migration) [2021] AATA 1200
Case: [2021] AATA 1200
Decision Date: 26 February 2021

CaseChat Overview and Summary

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 600 (Visitor) visa. The applicant, a citizen of Morocco, arrived in Australia with his wife in September 2019. The delegate's decision to cancel the visa was based on the applicant allegedly breaching a condition of his visa by engaging in work, specifically by showcasing a hairstyle at a barber shop. The applicant contended that the notice of intention to cancel the visa was defective and that the cancellation decision was invalid.

The Tribunal was required to determine two primary legal issues: first, whether the notice of intention to consider cancellation (NOICC) was valid, given that it incorrectly stated the applicant's visa subclass as Subclass 601 instead of Subclass 600; and second, whether the applicant had, in fact, breached the condition of his visa by engaging in work. The Tribunal considered the requirements for a valid NOICC under section 119 of the Migration Act 1958 (Cth), which mandates notification of the grounds for cancellation and particulars of the information supporting those grounds. It also considered section 120 of the Act regarding the disclosure of adverse information.

The Tribunal reasoned that while minor irregularities in a NOICC might not always invalidate it, the incorrect identification of the visa subclass was a significant defect. Furthermore, the Tribunal found that the applicant's actions did not constitute engaging in work. The act of showcasing a hairstyle on one occasion was considered a mere coincidence and not a deliberate engagement in employment. The Tribunal was not satisfied that the ground for cancellation under section 116(1)(b) of the Act had been made out.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Subclass 600 (Visitor) visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.Relevant background 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. 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 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 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 In this case a question arises as to the validity of the NOICC. 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. 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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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