Casaje (Migration)

The Administrative Appeals Tribunal considered the case of Mr Casaje, a citizen of the Philippines, whose Subclass 600 (Visitor) visa was subject to cancellation. The dispute arose from allegations that Mr Casaje had breached a condition of his visa by performing unpaid work at his brother's restaurant in Australia.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) was made out. This section permits the cancellation of a visa if the holder has failed to comply with a visa condition. In this instance, the relevant condition was 8101, which prohibits the visa holder from engaging in work in Australia. If the ground for cancellation was established, the Tribunal then had to consider whether, in all the relevant circumstances, the visa should be cancelled.

The Tribunal found that Mr Casaje had indeed engaged in activities that constituted "work" under condition 8101, despite his belief that it was permissible as it was unpaid assistance to his brother. He had worked in the kitchen, purchased supplies, and performed general duties at the restaurant. However, the Tribunal determined that while the ground for cancellation was made out, the mandatory cancellation provisions did not apply. Consequently, the Tribunal exercised its discretion and decided not to cancel the visa. This decision was based on a holistic consideration of the circumstances, including Mr Casaje's genuine belief that he was not breaching his visa conditions, his close family ties in Australia, the potential hardship of visa cancellation, and the Tribunal's confidence that he would not reoffend.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr Casaje's Subclass 600 (Visitor) visa.