Casaje (Migration) - [2017] AATA 1185

Casaje (Migration) [2017] AATA 1185 (30 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Christian Casaje
CASE NUMBER:  1701198
DIBP REFERENCE(S):  BCC2017/229324
MEMBER:Louise Nicholls
DATE:30 June 2017
PLACE OF DECISION:  Sydney
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 30 June 2017 at 5:33pm
CATCHWORDS
Migration – Cancellation – Visitor visa – Subclass 600 – Performed unpaid work in sponsor’s business – Good family migration history
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 2, r 1.03, Condition 8101
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of the Philippines and is 30 years of age. He arrived in Australia as the holder of a visit visa on 17 November 2016. His visit visa was cancelled on 18 January 2017.
The applicant was visiting his Australian citizen brother when his visa was cancelled. The applicant has previously visited Australia on 2 occasions in 2012/2013.
A delegate of the Minister for Immigration cancelled the applicant’s Subclass 600 (Visitor) visa under s.116 of the Migration Act 1958 (the Act) on 18 January 2017. The delegate cancelled the visa under s.116(1) (b) of the Act on the basis that the applicant had breached condition 8101 which provides that the visa holder must not engage in work in Australia.
On 24 January 2017 the applicant applied for review of the cancellation decision. He provided a large number of documents to support his application, including;
·A copy of the delegate’s cancellation decision dated 18 January 2017.
·A copy of the bio data page of the applicant’s Philippines passport.
·Statement made by the applicant regarding the circumstances of the cancellation 23 January 2017.
·Statutory declaration made by the applicant 17 May 2017.
·Corporate documents relating to Kerygma Apostolic and Little Lights Ministry Asia Inc. 2016.
·Photographs of the applicant engaged in charity work for the Little Lights Ministry in the Philippines.
·Statutory declaration made by the applicant’s mother on 15 May 2017.
·Statutory declaration made by the applicant’s brother Jimini Casaje on 15 May 2017.
·Bank statements in the name of the applicant’s brother and business documents.
·A copy of the bio data page of the applicant’s mother’s Philippines passport and her bank statements.
·Extracts from Facebook 21 February 2017 and various other social media sites.
·Photograph of Burger Point at Marsden Park.
·Sightseeing photographs taken by, and of, the applicant from 2016 to 2017.
·Philippines bank statement and bankcard in the name of the applicant.
·Visa grant notice.
·Submissions made by the applicant’s representative.
The applicant appeared before the Tribunal on 22 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and the applicant’s brother.
The applicant and witnesses were able to give evidence in English but an interpreter in the Tagalog and English languages was present during the hearing to ensure that the applicant had no difficulties in giving evidence.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
Background
The applicant is 30 years of age and is a Philippines citizen. His parents are living and working in the Philippines; they operate a real estate agency and his father is also a full-time pastor with an Apostolic Ministry. He has 3 siblings; his 36 year old married brother who lives in the Philippines and works in a call centre and his 35-year-old married sister who also lives and works in the Philippines. His brother Jimini Casaje is 34 years of age and is an Australian citizen.
The applicant attended school in the Philippines and completed a 3 year course in culinary arts in the Philippines. He has not worked as a chef but has generally helped his parents in their real estate agency.
The applicant’s brother Jimini arrived in Australia in 2007 as the holder of a temporary business visa. He obtained a permanent visa and then became a citizen and married in Australia. He has worked as a chef and is now operating his own restaurant, Burger Point cafe in Marsden Park, Sydney.
The applicant has visited Australia twice in 2012/2013 and during those visits stayed with his brother.
The applicant was granted a visit visa on 30 September 2016. The applicant arrived in Australia as the holder of that visa on 17 November 2016.
Does the ground for cancellation exist?
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 8101 attached to the applicant’s visa. This condition provided “the holder must not engage in work in Australia.”
At the hearing the Tribunal put it to the applicant that on 16 and 17 January 2017 he had been found working in his brother’s Burger Point café and when compliance officers interviewed the applicant on 17 January 2017 he admitted that he had been assisting his brother but did not consider he was in breach of condition 8101 because he was not engaged in paid work.
He told the Tribunal that he had assisted his brother as a favour when his brother’s staff members had taken emergency leave or had not turned up for work. At the time he did not fully appreciate the meaning of work in Condition 8101. He had worked in the kitchen, he had purchased supplies and did general duties around the café.
He agreed that he had been interviewed by compliance officers who had put it to him that he had been working in breach of the condition attached to his visa. In his response to the officers at that time he stated that he was not engaged in paid work and that he had checked the meaning of work on the internet and he had read that voluntary work was acceptable. He stated he did not go to the restaurant to work but mainly to see his brother and help him if he needed help.
At the hearing he stated that at the time he helped his brother he genuinely thought that he was not in breach of this condition but since his visa was cancelled and he has obtained legal advice he clearly understands that work may involve both paid and unpaid work.
Condition 8101 restricts a visa holder’s capacity to engage in work in Australia. Regulation 1.03 of the Regulations defines work as ‘an activity that, in Australia, normally attracts remuneration’. Whilst the construction of that definition is a question of law, the question of whether a visa holder’s activities fall within the definition is a question of fact to be determined by the Tribunal.[1]
[1] Al Ferdous v MIAC [2011] FCA 1070 (Stone J, 20 September 2011) at [25; Bhatia v MIBP [2015] FCCA 409 (Judge Driver, 20 March 2015) at [31].
The definition provided in r.1.03 may include an activity for which an individual visa holder is not remunerated. It is sufficient that it ‘be an activity that normally attracts remuneration’.[2]
[2] Braun v MILGEA (1991) 33 FCR 152 at 156. Braun considered the definition in then r.2, in which work was also defined ‘as an activity that, in Australia, normally attracts remuneration’.
The applicant admitted that he assisted his brother in his café business by working in the kitchen, buying supplies and general work around the café. He also admitted that he did this work in place of employees who had taken leave or not turned up for work. The Tribunal finds from time to time he was engaged in activities in his brother’s café which would normally attract remuneration.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The applicant provided a large amount of material relating to whether his visa should be cancelled. His mother and brother also gave oral evidence on his behalf at the Tribunal hearing. The Tribunal has considered all the evidence provided on his behalf and has decided that his visa should not be cancelled. It notes the following;
·     The applicant travelled to Australia in 2016 to visit his married brother. He visited on two previous occasions in 2012 and there is no evidence of non-compliance during those visits.
·     Other members of the applicant’s immediate family have visited regularly and complied with the conditions of their visit visas. The evidence indicates that the family are a close knit family and derive significant emotional support from each other during family visits. The applicant gave evidence that he would like to visit in the future and that he wanted to clear his name.
·     If the applicant’s visa is cancelled he may be excluded from applying for further visas and will be unable to visit his brother for a number of years. The Tribunal considers that this will cause him and his brother some emotional hardship as they have a strong fraternal relationship.
·     The applicant claimed, and the Tribunal accepts, that the applicant did not believe that the assistance he was providing to his brother was in the nature of “work”. He explained that the family provide significant assistance to each other and whilst he is now aware that he is not able to provide this type of assistance, at the time he was interviewed he did not think he was in breach of his conditions. He has tried to minimise the amount of assistance he gave, but the Tribunal considers that he helped his brother on a number of occasions before his visa was cancelled. However, the Tribunal is confident that the applicant has not provided any assistance since his visa was cancelled and would not do so in the future if he was granted further tourist visas. The Tribunal considers that the family is a generally law abiding family and that they have been quite significantly affected by the applicant’s visa cancellation.
·     In the delegate’s decision it was noted that the applicant tried to abscond but then complied with officers and attended an interview at the café premises. He explained the Tribunal that when the officers came to the café to speak to him he became he was highly distressed when he realised he was being interviewed in relation to an alleged breach of his visa conditions. His anxiety caused him stomach and bowel problems and he had to run to the toilet. He returned from the toilet to speak to officers and had no intention to abscond.
·     The applicant and his brother gave evidence that the applicant’s brother has been subject to a malicious campaign involving the applicant and his brother. It was explained that this appeared to relate to a dispute between the applicant’s brother and his former work colleagues. The applicant was accused of a number of things in a series of defamatory and malicious comments on Facebook and other websites. These included false allegations that the applicant had AIDS and hepatitis, that the applicant’s brother was employing illegal workers and that the applicant’s brother stole items from his former employer. The applicant provided copies of these entries. They both denied these allegations.
·     The applicant gave evidence that he had been sightseeing and touring around Australia and provided photographs to confirm this evidence.
The Tribunal has taken into account the breach of the “No Work” condition by the applicant and the fact that the applicant’s brother has gained some advantage over other employers by using his brother’s unpaid services to cover a gap in his business. However, the Tribunal has also taken into account that the applicant did not consider he was in breach of the condition at the time, that he and other family members have a good migration history, the possible exclusion period the applicant may experience if the visa is cancelled, that the family gain significant emotional support from visits, that the applicant was not engaged in paid work and that the circumstances in which the non-compliance was brought to the attention of the Department appears to have been motivated by malice and a desire to harm the applicant’s brother. These factors outweigh other factors which might suggest the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.
Louise Nicholls
Senior Member