CARRAGHER v Minister for Immigration

[2016] FCCA 3388

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARRAGHER v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3388

Catchwords:
MIGRATION – Judicial review of decision of delegate of the Minister for Immigration and Border Protection to cancel at airport eVisitor Subclass 651 visa (Visa) on the ground the applicant failed to comply with condition 8115 – whether in determining whether to cancel Visa the delegate directed his mind to “business visitor activity” as defined in the Migration Regulations 1994 (Cth) – whether the delegate misconceived meaning of “business visitor activity” – whether the delegate failed to fairly inform the applicant of the basis on which delegate proposed to cancel Visa and thus failed to comply with s.119 of the Migration Act 1958 (Cth) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.116(1)(b), 119

Migration Regulations 1994 (Cth), reg. 1.03, 1.03(a), 1.03(a)(iv), 1.03(b)(i)
Migration Regulations 1994 (Cth), Schedule 8, condition 8115

Cases cited:

Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

Applicant: CHANTAL CARRAGHER

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: CENGIZ DOGER IN HIS CAPACITY AS A DELEGATE OF THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

File Number: SYG 2737 of 2015

Judgment of: Judge Manousaridis

Hearing date: 16 September 2016

Delivered at: Sydney

Delivered on: 22 December 2016

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2737 of 2015

CHANTAL CARRAGHER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

CENGIZ DOGER IN HIS CAPACITY AS A DELEGATE OF THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a national of Ireland, seeks judicial review of a decision made on 2 September 2015 by the second respondent (delegate), as delegate for the first respondent (Minister), to cancel the applicant’s eVisitor Subclass 651 visa (Visa).

Background

1. On 14 May 2015 the applicant was granted the Visa. It was subject to condition 8115 that is specified in Schedule 8 to the Migration Regulations 1994 (Cth) (Regulations). Condition 8115 provides that the “holder must not work in Australia other than by engaging in a business visitor activity”. The expression “business visitor activity” is defined in reg.1.03 of the Regulations as follows:

   business visitor activity:

   (a)means any of the following activities undertaken by a person:

   (i)making a general business or employment enquiry;

   (ii)investigating, negotiating, entering into, or reviewing a business contract;

   (iii)an activity carried out as part of an official government to government visit;

   (iv)participation in a conference, trade fair or seminar in Australia unless the person is being paid by an organiser for participation; but

   (b)does not include either of the following activities:

   (i)an activity that is, or includes, undertaking work for, or supplying services to, an organisation or other person based in Australia;

   (ii)an activity that is, or includes, the sale of goods or services directly to the general public.

2. The applicant entered Australia on 2 June 2015 where she remained until 26 August 2015. On 1 September 2015 the applicant re-entered Australia from New Zealand. On that day, at 22.39 at Melbourne Airport, the applicant was interviewed by the delegate. The interview was suspended at 23.07 and resumed at 23.48 when the delegate notified the applicant of his intention to consider cancellation of the Visa. That notice (Notice) was issued under s.116(1)(b) of the Migration Act 1958 (Cth) (Act). The Notice stated that it had come to the delegate’s attention “that there appear to be grounds for cancellation of” the Visa. Under the heading “Possible grounds for cancellation”, the Notice stated:

   You arrived at Melbourne Airport as the holder of visa s/c 651 which is endorsed with condition 8115 – LIMITED ACTIVITIES. The purpose of the condition is to facilitate legitimate business visitor activity while precluding visitors from entering the labour market or undertaking work that might otherwise be undertaken by an Australian citizen, an Australian permanent resident or the holder of a temporary work visa.

   You initially arrived in Australia as the holder of this visa on 02/06/2015 and remained onshore until 26/08/2015.

   You stated to an Australian Border Force officer that during your previous stay, you worked for an Irish company doing demonstrations of their product to potential Australian clients and were sent here specifically for the purpose of this work.

   At interview, you stated that you work as a sales executive for CIRDAN Labs, and are paid 375GBP per week whilst in Australia to do demonstrations of their product at hospitals and clinics and other potential clients in Australia. You stated that your planned length of stay is 9 months (to March 2016) and that this is your sole purpose for returning to Australia now.

   Based on the above information, it appears you have breached condition 8115 of your visa s/c 651.

3. The Notice also stated the applicant had the opportunity to comment on the intention to consider cancellation of the visa, and that such comments may include why grounds for cancellation do not exist, and why the Visa should not be cancelled. The Notice invited the applicant to provide her comments at an interview on 2 September 2015 beginning at 00.05 am.

4. The applicant was again interviewed at 00.05 am on 2 September 2015; and at 00.24 am the delegate provided to the applicant a document recording a decision by the delegate cancelling the Visa (Decision).

5. The Decision noted the applicant gave no reasons why she considered the grounds for cancellation did not exist; and, under the heading “Details of the evidence and findings about whether the delegate is satisfied GROUNDS for cancellation DO or DO NOT EXIST”, the Decision sets out the reasons for the cancellation which substantially repeated the passage from the Notice I have set out above.

6. The Decision also recorded the following:

   a)The applicant stated she did not realise what visa she was on; she thought her employer arranged everything for her.

   b)Under the heading “Delegate’s assessment of the reasons the visa should not be cancelled”, the Decision recorded the applicant stated the purpose of her travel to Australia was to work as a sales executive for her Irish employer, CIRDAN Labs, doing demonstrations of their products to local clients; she gets paid 375GBP per week; and she intended to continue working in this role up to March 2016. The Decision, however, records the delegate gave no weight to this factor because the Visa is endorsed with condition 8115 “which excludes such work”.

   c)Under the heading “Extent of compliance with visa conditions”, the Decision records the applicant breached condition 8115 “by working in Australia as a sales executive throughout the first three months of her initial stay and intended to continue this work up until March of 2016”. The delegate, therefore, gave this factor no weight.

   d)Under the heading which includes the words “The degree of hardship which may be caused to the visa holder”, the Decision records the applicant provided no reason why she or her family would be subjected to any hardship if the Visa were cancelled.

   e)Under the heading “Client circumstances in which the ground for cancellation arose”, the Decision records the applicant had completed her studies in Ireland; as part of that, she had been given a work placement with CIRDAN Labs; on commencement, her employer sent the applicant to Australia to work as a sales executive, meeting clients, and giving demonstrations of their products; the applicant’s employer asked her to remain in Australia in this role for the duration of her work placement of nine months, until March 2016; the applicant said she was sent a link by email to apply for a visa for this purpose, and she followed the instructions without questioning conditions that applied to the Visa. The delegate gave these matters no weight because he considered it was the applicant’s responsibility to be aware of the conditions of her visa.

Grounds of application

1. The amended application states three grounds.

Ground 1 - failure to ask right question or apply or correctly apply definition of “business visitor activity”

1. The first ground is really three grounds.

   a)First, it is said the delegate, when deciding to cancel the Visa on the ground the applicant failed to comply with condition 8115, did not direct his mind to the definition of “business visitor activity” contained in reg.1.03(a) of the Regulations, and therefore failed to ask himself whether the work he found the applicant had engaged in met that definition.[1]

   b)Further, and in the alternative, the delegate incorrectly interpreted condition 8115 as precluding the applicant from engaging in any form of work, when condition 8115 precluded the applicant from engaging in any form of work that did not meet the definition of “business visitor activity” set out in reg.1.03(a) of the Regulations.[2]

   c)Further, and in the alternative, the delegate misconstrued the applicable law because he assumed rather than ask himself, whether the activities in which the applicant had engaged in Australia were prohibited by condition 8115.[3]

   [1] Grounds of application, [1], particular (a)

   [2] Grounds of application, [1], particular (b)

   [3] Grounds of application, [1], particular (c)

2. In support of these three grounds, the applicant, in her written submissions, relied on the following matters. First, the delegate did not refer to reg.1.03 of the Regulation, or to the expression “business visitor activity”.[4] Second, there is no reference anywhere in the Decision to the concepts prescribed by the definition in reg.1.03 of the Regulations of “business visitor activity”. In particular, the applicant submits, the Decision does not refer to any of the four activities permitted by the definition, or to the two activities excluded by that definition, or use language similar to that used in the regulation, or otherwise provide some hint the delegate was aware of the content of the definition of “business visitor activity”. [5]

   [4] Applicant’s Outline of Submissions, [24(a)]

   [5] Applicant’s Outline of Submissions, [24(b)]

3. Third, rather than referring to “business visitor activity” or to the matters covered and excluded by the definition of that expression, the delegate referred to what he considered to be the purpose of condition 8115, namely, “to facilitate legitimate business visitor activity while precluding visitors from entering the labour market or undertaking work that might otherwise be undertaken by an Australian citizen, an Australian permanent resident or the holder of a temporary work visa”.

4. Fourth, the applicant relies on what occurred when the delegate gave the applicant notice of intention to consider the cancellation of the Visa. After reciting information the delegate understood the applicant had conveyed to him during the first interview, the delegate said “[b]ased on the above information, it appears you have breached 8115 of your Visa subclass 6”, and the following exchange occurred:

   APPLICANT: Well, it says, 8115 business activities. That don’t mean you’re allowed to do business activities?

   DELEGATE: That’s not business, pl-l-let me finish this. . . .

5. The applicant submits the applicant’s statement was a submission to the effect that her work was capable of meeting the definition of condition 8115. The applicant further submits this passage indicates the delegate had disregarded the applicant’s submission and “dismissed this out of hand”; she submits the delegate’s not referring to the applicant’s submission suggests the delegate pre-emptively assumed without any consideration of the relevant criteria that the applicant’s work had breached condition 8115.[6]

   [6] Applicant’s Outline of Submissions, [24(e)]

6. Fifth, the applicant submits that the delegate’s question during the first interview, “So, did you not see the condition that said no work?” reveals the delegate was under a misconception of condition 8115.

7. The Minister, on the other hand, submits the applicant bears the onus of showing the delegate did not consider the definition of “business visitor activity”, and it is a difficult onus to discharge “simply on the basis of the lack of explicit reference to the definition when the Act does not in terms require that the delegate give reasons beyond specification of the ground of cancellation”.[7]

   [7] First Respondent’s Written Submissions, [6]

8. On the applicant’s case, the delegate did no more than consider whether the applicant worked or intended to work in Australia, and that, instead of considering whether the work the applicant claimed she did or proposed to do came within the meaning of “business visitor activity”, the delegate made his decision to cancel the Visa by applying his understanding of the policy that underlies condition 8115. If that is all he had in fact done, it is reasonable to expect the delegate would simply have asked the applicant whether she worked or intended to work in Australia. But that is not what the delegate did.

9. The delegate began the first interview by asking the applicant some questions, including questions about who had arranged her ticket to travel to and from New Zealand. He then asked the applicant questions about the circumstances in which she applied for and was granted the Visa. The delegate suggested that, if she had filled out the application for a visa, the applicant would have read the questions and would have understood the conditions. In response to the applicant’s answer “I didn’t really go over it”, the delegate said “So, did you not see the condition that said no work?”[8] That by itself does not, as the applicant submits, suggest the delegate misconceived condition 8115. The delegate’s question is reasonably capable of being read as a shorthand description of condition 8115. That condition states the visa holder must not work in Australia, subject to an exception. In any event, whether or not the delegate’s question suggests a misconception of condition 8115 must be considered in the context of the delegate’s interviews of the applicant as a whole, and what he stated in the Decision.

   [8] Transcript, T5.3. The transcript (Transcript) is annexure “A” to the affidavit of Amelia Whalley

10. After asking some questions about whether the applicant had relatives or friends in Australia, the delegate asked the applicant why she has returned to Australia, how long she intended to stay, and what her plans were in relation to work. The following exchange then took place (emphasis added):[9]

    APPLICANT: Well, just sort of, um, past      [inaudible] it’s been just sort of emails really. Umm, yeah, work will um…

    DELEGATE: Do they send you leads and say get in touch with these people, see if you can arrange an appointment, something like that.

    APPLICANT: Like, we’re already in touch with all of them, so sort of just, umm, email them,  [inaudible] um, I am sort of just new in, on the, on work, umm, just here, just here like if you need any, if you have any problems or anything, um, I did ah, I did a conference over in Brisbane, um, and, and just sort of keep in contact with people who, who met there. Um, and if anyone wants to like see the product, then I, ah, show them what it is really. But past months it hasn’t really been, like …

    DELEGATE: Not much interest?

    APPLICANT: No it’s not interest, the way the lab hassles work they you know they mightn’t reply for six weeks, so they’re not going to need, suppose there yeah, isn’t many leads.

    DELEGATE: Ah, okay.

    APPLICANT: As such.

    [9] T6.20-T7.11

11. The delegate then returned to the emails the applicant mentioned, and asked whether they are “to and from p-potential clients . . . asking more questions . . . [a]bout the product”.[10] At that point the applicant mentions the names of three businesses, one of which runs “all hospitals”, and the other two “are like big massive labs”.  The delegate then asked “what would a typical email be”, to which the applicant answered (emphasis added):[11]

    Er, I’ve gotta think. Like a woman we met at conference was really interested in um the product and they do more treatable and I’m sort of thinking of collaborating with them, um and then people most of them who run the IT systems, like we have been with them for years um they’re sort of indicated they like to see a demo unit to try it out and then I sort of maybe arrange that, um …

    [10] T7.10-T7.18

    [11] T7.23

12. The Delegate interrupted the applicant at this point, and the following exchange occurred (emphasis added):[12]

    DELEGATE: Ah okay, so will the emails be, er, will they originate from, from your clients to you saying ‘hi, I’ve heard about your products, and I’d like a demo’ – or …

    APPLICANT: Er, well usually it’s sort of from, more like my, like you know we have this new demo out whatever and, then they say oh yeah sure, you and me and we can arrange something if they want it or not.

    DELEGATE: So okay, initiation is from your employer, but they send off these emails to …

    APPLICANT: Yeah.

    DELEGATE: The clients and, and wait for potential response and then that’s when you would go out and do a demo.

    APPLICANT: Yeah, I’ve only done like one of them, so far.

    DELEGATE: Okay.

    APPLICANT: Um. It’s more like just sort of meeting them and talking and see if they’re interested.

    [12] T8.1-T8.14

13. After asking the applicant how many demonstrations she had done in the three months she was in Australia, the delegate asked the applicant the name of her employer (the answer was “CIRDAN Imaging” (CIRDAN), and whether her employer operated out of Ireland and whether the applicant’s employer has an office or branch in Australia. The applicant said “I think there’s, is there an office based in Ballarat? I’m not sure, I just work from home”.[13]

    [13] T9.12

14. After asking the applicant questions about how long she had been working for CIRDAN, how she obtained her employment with CIRDAN, where CIRDAN was located, and how many people work for CIRDAN at that location, the delegate asked the applicant what her title was, and what salary she was being paid. The applicant said she was a “Sales Executive”, and that she was being paid 375GBP a week.[14]

    [14] T10.25-T11.3

15. After asking questions on a number of other matters, the delegate returned to the nature of the work the applicant did. The delegate said he was “just trying to figure what it is exactly that you do”.[15] The delegate asked the applicant to describe the relevant product, and how CIRDAN came to send the applicant to Australia. The applicant claimed she had been placed with CIRDAN by a government graduate program for nine months and CIRDAN decided that “since you’re doing a placement with us, we’ll, would you like to go to Australia”.[16] The applicant also said “I didn’t actually like, see them”.[17] The following exchange occurred (emphasis added):[18]

    [15] T12.10

    [16] T15.8

    [17] T15.12

    [18] T15.14-T16.1

    DELEGATE: Would you think a company who’s doing serious business, would they give someone, if, if they were serious about selling products in in Australia, would they be sending someone who they don’t even know?

    APPLICANT: I, um..

    DELEGATE: Who, who’s doing a job, who was…

    APPLICANT: …was…cos…I’m, I’m not…

    DELEGATE: …coming out for placement.

    APPLICANT … not doing, like, mean much, sort of, that’s the …

    DELEGATE: They pay you an awful lot for it.

    That’s just my opinion, but, but…

    APPLICANT: I’m probably just survive here as well, look, um, but, like there’s not really, the other side of the business is much more advanced, like I just sort of email people and it’s just someone to be sort of here on the ground, so …

    DELEGATE: Okay, so, they, them looking at you within this final period, to be their contact in Australia.

    APPLICANT: Yeah, I guess so.

1. The delegate then asked the applicant whether she had received “any money or any reimbursement here in Australia for anyone in Australia for . . . doing this sort of work” (the applicant answered: “No”).[19] The delegate also asked:[20]

   And they [sic] pay that you are getting, it, it’s paid into your account on a regular basis? It’s not just because you’ve done this or because you’ve done that here we pay your [sic] for it?

   to which the applicant answered:[21]

   [19] T16.12

   [20] T16.17

   [21] T16.20

   No, it’s not commission based or anything no.

2. In my opinion, many, if not most of the questions the delegate asked the applicant were directed to obtaining information that was relevant to those aspects of the definition of “business visitor activity” as defined in reg.1.03 of the Regulations that could conceivably have applied to the work the applicant claimed she did.

   a)First, the delegate asked questions about who initiated contact with potential customers in Australia. The delegate particularly asked whether the applicant’s employer sent her “leads and say get in touch with these people, see if you can arrange an appointment”. This question is relevant to whether the work the applicant did constituted the “making of a general business or employment enquiry”, this being the first activity included in the definition of “business visitor activity”.

   b)Second, the delegate asked the applicant whether she had received any money or any reimbursement in Australia from anyone in Australia for doing the work the applicant claimed she did. That question is relevant to whether the applicant’s claimed participation in the conference was an activity described in paragraph (a)(iv) of the definition of “business visitor activity”. That paragraph describes “participation in a conference . . . in Australia unless the person is being paid by an organiser for participation”. It is also relevant to whether the applicant came within the exclusion contained in paragraph (b)(i) of the definition of “business visitor activity”, namely, whether the applicant’s work was “an activity that is, or includes, undertaking work for . . . an organisation or other person based in Australia”.

   c)Third, the delegate asked the applicant whether her employer had a presence in Australia. That question was relevant to the exclusion contained in paragraph (b)(i) of the definition of “business visitor activity”, namely, whether the applicant’s work was “an activity that is, or includes, undertaking work for . . . an organisation or other person based in Australia”.

3. Given I have found the questions the delegate asked were relevant to whether the applicant’s work constituted “business visitor activity” as that expression is defined in reg.1.03 of the Regulation, it follows I do not accept the applicant’s submission that the delegate did not direct his mind to the definition of “business visitor activity” when he interviewed the applicant, and when he decided to cancel the Visa. If anything, the questions the delegate asked the applicant satisfy me the delegate did have in mind the definition of “business visitor activity”.

4. That the delegate turned his mind to the definition of “business visitor activity”, and the delegate did not simply assume condition 8115 prohibited the applicant from working in Australia, is supported by other matters. First, in the Decision, the delegate referred to the applicant being the holder of the Visa “which is endorsed with condition 8115 – LIMITED ACTIVITIES”. That suggests the delegate was aware the Visa permitted the applicant to undertake some activities. Second, the delegate stated the purpose of condition 8115 was to facilitate “legitimate business visitor activity” while precluding visitors from entering the labour market or undertaking work that might otherwise be undertaken by an Australian citizen, an Australian permanent resident, or the holder of a temporary work visa. This indicates the delegate was aware of the notion of “business visitor activity”. That is so even though the delegate prefaced the expression with the word “legitimate”. In my opinion, that may reasonably be interpreted as the delegate’s way of stating that it is “business visitor activity” within the meaning of the law, that is the Regulations. Third, in the Decision, after describing the work the applicant undertook and proposed to undertake in Australia, the delegate said he gave no weight to that work because the Visa is endorsed with condition 8115 “which excludes such work”. Thus, the delegate did not say he gave no weight to the work the applicant undertook or proposed to undertake because condition 8115 prevented the applicant from working; the delegate concluded the condition excluded such work. That indicates the delegate gave thought to the nature of the work the applicant said she undertook and proposed to undertake. That, in turn, indicates the delegate did so because he was aware that condition 8115 permitted some work; and that the most likely inference that can reasonably be drawn about the work the delegate was of the view condition 8115 permitted the applicant to undertake was the work covered by the definition of “business visitor activity”, being an expression the delegate had already used.

5. It follows, therefore, that I also do not accept the applicant’s claim that the delegate incorrectly interpreted condition 8115 as precluding the applicant from engaging in any form of work,[22] or that the delegate simply assumed that the activities in which the applicant engaged in Australia were prohibited by condition 8115.[23] As I have already found, the delegate’s questions indicate he was aware of the definition of “business visitor activity”. Had the delegate, as the applicant claims, misunderstood condition 8115 to mean it precluded the applicant from undertaking any form of work, or simply assumed the applicant’s activities were prohibited by condition 8115, he would not have asked many of the questions he did ask, and in particular, questions about who initiated contact with the applicant’s employer’s potential customers, whether the applicant had received money from anyone in Australia, and whether her employer had a presence in Australia. As I have also already found, the delegate was aware that condition 8115 permitted the applicant to undertake some work, and that the most likely inference that can reasonably be drawn about the work the delegate was of the view the applicant could undertake was the work covered by the definition of “business visitor activity”.

   [22] Grounds of application, [1], particular (b)

   [23] Grounds of application, [1], particular (c)

6. Further, the applicant does not submit that, applying a proper construction of “business visitor activity”, it was not reasonably open to the delegate to conclude that the work the applicant said she did and proposed to do was not “business visitor activity”. Given I am not satisfied the delegate did not direct his mind to the meaning of “business visitor visa”, and the applicant does not submit that the delegate’s finding that the applicant did not engage in “business visitor activity” was not one that was not reasonably open to the delegate, it follows I am not satisfied the delegate applied an incorrect understanding of “business visitor visa”.

7. Ground 1, therefore, fails.

Ground 2 – failure to take into account relevant considerations

1. The second ground claims the delegate failed to take into account relevant considerations, those considerations being the “legislative meaning of “business visitor activity”, being a mandatory relevant consideration”, and whether the activity engaged in by the applicant met the definition of “business visitor activity”. The applicant submits the delegate’s reasoning appears to have turned either on the delegate’s own subjective view or some unsourced purpose as to what a “business visitor activity” was, uninformed by the regulation.

2. I have already concluded I am not satisfied the delegate did not direct his mind to the definition of “business visitor activity” or that he did not consider whether the applicant’s work constituted “business visitor activity”. I am therefore also not satisfied the delegate failed to take into account the “legislative meaning of “business visitor activity”, and whether the activity engaged in by the applicant met the definition of “business visitor activity”. I am also not prepared to find, therefore, that the delegate applied an incorrect understanding of “business visitor activity”.

3. Ground 2, therefore, also fails.

Ground 3 – denial of procedural fairness

1. The third ground is as follows:

   The Delegate engaged in jurisdictional error by failing to comply with legislative scheme or by otherwise denying the Applicant procedural fairness.

   Particulars

   If in fact the Delegate took into account the correct content of condition 8115 and the legislative definition of “business visitor activity” as defined in r 1.03(a) of the Regulations, then the Delegate failed to give the applicant:

   a.adequate particulars of the grounds of the proposed cancellation;

   b.an opportunity to respond to these issues at the interview he conducted.

2. The applicant accepts that whether or not the delegate accorded the applicant procedural fairness must be assessed in the context of s.119 of the Act, which provides:

   (1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

   (a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

   (b)invite the holder to show within a specified time that:

   (i)     those grounds do not exist; or

   (ii)     there is a reason why it should not be cancelled.

   (2)The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

3. The applicant submits the delegate was required to inform the applicant that “business visitor activity” was permitted. The applicant further submits the delegate was required to inform the applicant of the legislative definition of “business visitor activity”, and to inform the applicant “why her business activities did not appear to meet the definition”.[24] The applicant particularly relies on the following passages from the judgment of the Full Federal Court in Zhao v Minister for Immigration and Multicultural Affairs (applicant’s emphasis):[25]

   [25] Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. . . .

   [26] . . . . The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section.

   [24] Applicant’s Outline Submissions [35]

   [25] [2000] FCA 1235 at [25] and [26] (French, Hill, and Carr JJ)

4. The question that arises is whether the information the delegate gave the applicant was of sufficient particularity to have fairly informed the applicant of the basis on which the delegate was considering cancelling the Visa so that the applicant was adequately equipped to provide such relevant information as may have been available, and to make such submissions as may have been open to her. The answer to that question turns on what the delegate said and did.

   a)First, the delegate described the Visa as having been endorsed with “condition 8115 - LIMITED ACTIVITIES”. That ought reasonably to have alerted the applicant that the question the delegate was considering was whether the applicant had engaged in or proposed to engage in activities beyond the limited activities permitted by condition 8115.

   b)Second, the delegate informed the applicant that the purpose of condition 8115 was to facilitate “legitimate business visitor activity”, while precluding visitors from entering the labour market or undertaking work that might otherwise be undertaken by Australian citizens, or Australian permanent residents, or the holders of temporary work visas. That ought reasonably to have alerted the applicant that the question the delegate was considering was whether the applicant’s activities in Australia constituted business visitor activity, and if so, whether it was legitimate. The applicant, therefore, was given the opportunity to provide all information available to her about the activities she undertook in Australia and which she proposed to undertake in Australia, and to make submissions that were open on that information about whether they constituted legitimate business visitor activities.

   c)Third, as I have already noted, the delegate asked specific questions about the nature of the work the applicant claimed she did or proposed to do in Australia. That ought reasonably to have alerted the applicant that the delegate was inquiring into what the applicant did or proposed to do in Australia; and that the delegate was making that inquiry for the purpose of determining whether the applicant had engaged or was proposing to engage in legitimate business visitor activity.

5. Not only did the delegate make statements and ask questions that ought reasonably to have alerted the applicant that the question the delegate was inquiring into was whether the applicant had engaged or was proposing to engage in business visitor activities; the evidence shows the applicant was aware that that was one of the issues the delegate was inquiring into. As the delegate was giving the applicant notice of his intention to cancel the Visa, the applicant said “[w]ell, it says, 8115 business activities. That don’t mean you’re allowed to do business activities?”. That indicates the applicant was aware that whether or not the work she conducted and proposed to conduct in Australia was business visitor activity was relevant to whether she had breached condition 8115.

6. The applicant submits the applicant was “cut off and told “That’s not business” which was pre-emptive and nonresponsive”.[26] The applicant also submits that when the applicant did allude to the possibility that the work she engaged in was permitted, she was dissuaded from proceeding in that regard, and in that circumstance was denied an opportunity to present evidence and argument going to the possibility she did satisfy the definition of reg.1.03.

   [26] Applicant’s Outline Submissions [35]

7. There are a number of points to make about these submissions. First, I do not agree the delegate “cut off” what the applicant was trying to say. The transcript records the applicant uttered a complete sentence and a question, and the delegate responded, although (as I find) not fully, to the question.

8. Second, I do not accept the delegate’s answer was not responsive. Although the delegate appears not to have completed his answer to the applicant’s question, what the delegate said directly responded to the applicant’s question. It appears, however, that the delegate stopped himself from answering the question in full; and he did so because he was part of the way through notifying the applicant of his intention to consider the cancellation of her visa, and inviting the applicant to make comments about why grounds for cancelling the Visa did not exist, and whether the Visa should be cancelled; and the delegate wanted to complete what he intended to say about these matters.

9. Third, I do not accept the delegate’s response to the applicant’s question was “pre-emptive”. It is true the delegate requested the applicant not to interrupt; but that was a reasonable request, given the applicant stated that condition 8115 referred to allowing one to undertake business activities as the delegate was reading out the notice of intention to cancel the Visa. It is also true the delegate said: “That’s not business”. Given I have found the delegate had in mind the notion of “business visitor activity”, I find that by making this statement, the delegate intended to express the view that the applicant’s past and expected work in Australia did not constitute business visitor activity. That, however, was not an unlawful state of mind for the delegate to have had at that stage of the process. The delegate made the statement in the course of his giving a notice under s.119 of the Act that there appeared to be grounds for cancelling the Visa. By stating “That’s not business”, the delegate indicated that part of the ground that appeared to exist for cancelling the Visa was that the work the applicant did and proposed to do in Australia was not business visitor activity.

1. In any event, the delegate, as he was obliged to do, expressly gave the applicant an opportunity to make comments about why grounds for cancellation of the Visa did not exist. The applicant did not claim that the work she did was business activity. Instead, when the delegate asked whether she had a response to the notice the delegate gave, the applicant said she did not “know what visa it was”, and she did not know what else to say.[27] When the delegate asked which visa the applicant thought she was on, the applicant said: “I thought I was just on a like you could work”.[28] And when asked whether the applicant thought she was on a different visa, the applicant said: “I didn’t really, have much time, I thought work sorted it all out”.[29] In my opinion, the applicant gave these answers, not because the delegate, as the applicant submits, “pre-empted” discussion about whether condition 8115 permitted the applicant to engage in business activities, or because she was otherwise dissuaded from making any submissions she wanted to say about that. The more likely explanation is the applicant gave these answers because she must have indeed thought she was on a visa that permitted her to work in Australia, and that the work she undertook was not business visitor activity.

   [27] T18.17

   [28] T18.20

   [29] T18.25

2. In my opinion, the delegate fairly informed the applicant of the basis on which the delegate considered the Visa would be cancelled, namely, that her activities in Australia did not amount to business visitor activity, such as to have equipped the applicant to provide relevant information and to make submissions to the delegate to the effect that she did engage in activities that amounted to business visitor activity and thus did not breach condition 8115. The delegate was not required to inform the applicant of the legislative definition of “business visitor activity”, or to inform the applicant “why her business activities did not appear to meet the definition”. That is so because, even without such information, the delegate had given sufficient information to the applicant to have put her on notice that whether or not the applicant had breached condition 8115 depended entirely on the work she carried out in Australia and which she proposed to carry out in Australia. The delegate also put the applicant on notice that whether or not the work the applicant carried out or proposed to carry out meant that she had breached or not breached condition 8115 depended on whether the work fell within the activities permitted by condition 8115 and, in particular, whether it constituted legitimate business visitor activity. The applicant was given a fair opportunity to state to the delegate the nature of the work she performed and was expected to perform in Australia, to explain what the nature of that work was, and to make submissions that were available to her that the work she did constituted legitimate business visitor activity. The end result of the opportunity the applicant was given was the applicant’s acknowledging she did not know the conditions of the Visa, and stating she thought the Visa was one under which “you could work”.

1. There is one final matter to note. In her written submissions in support of ground 1, the applicant submits the delegate “appears to have disregarded the Applicant’s assertion at the interview that her work was capable of meeting the definition of condition 8115”.[30] That invitation invites two observations. First, I am not satisfied that the applicant’s statement “[w]ell, it says, 8115 business activities. That don’t mean you’re allowed to do business activities?” made in the course of the delegate’s giving the applicant notice of intention to cancel the Visa could reasonably be characterised as a submission that her work was capable of meeting the definition of condition 8115. Second, as I have already noted, by the terms of the notice of intention to cancel the Visa, the applicant was invited to comment on why grounds for cancellation do not exist. The applicant made no submission to the effect that her work was capable of meeting the definition of condition 8115.

   [30] Applicant’s Outline of Submissions, [24(e)]

2. Ground 3, therefore, also fails.

Disposition

1. The applicant has failed on each of the grounds stated in the amended application. I propose, therefore, to order that the application be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 22 December 2016