Benjaber (Migration)

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.