LEE (Migration)

[2019] AATA 846

LEE (Migration) [2019] AATA 846 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chian Chuen Lee

CASE NUMBER:  1824728

HOME AFFAIRS REFERENCE(S):           CLD2018/42325567

MEMBER:Mary Urquhart

DATE:22 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

Statement made on 22 January 2019 at 3:42pm

CATCHWORDS
MIGRATION – cancellation – Electronic Travel Authority (Class UD) visa – Subclass 601 (Electronic Travel Authority) – ground for cancellation – no work requirement – observed by ABF officers to be cooking, running the counter and serving at aunt’s coffee shop – not remunerated – consideration of discretion – aunt’s medical conditions – compassionate purpose of assisting his aunt – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.03; Schedule 8, Condition 8115

CASES
Braun v MILGEA (1991) 33 FCR 152
Dib v MIMA (1998) 82 FCR 489
Kim v Witton (1995) 59 FCR 258
Zhao v MIMIA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116 of the Migration Act 1958 (the Act) on the basis that the applicant breached condition 8115, must not work in Australia.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 17 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Swee Chan Lee and Mr Chun Wei Tan.

5. 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

6. 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.

   Does the ground for cancellation exist?

   S.116 (1) (b) - non-compliance with conditions

7. A visa may be cancelled under s.116 (1) (b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8115 attached to the applicant’s visa. This condition requires the holder must not work in Australia other than by engaging in a business visitor activity.

8. The applicant was notified that a delegate of the Minister was considering cancelling his visa on 16 August 2018 and the decision to cancel the visa was made on 16 August 2018. The applicant was notified of the decision in person that day and the decision to cancel in writing together with his review rights were notified to him by letter dated 20 August 2018.

9. The applicant sought a review on 24 August 2018.

10. If the Tribunal is satisfied that the ground for cancellation exists, it must proceed to consider whether to cancel the visa. In certain circumstances the visa must be cancelled, in other circumstances the decision to cancel the visa is discretionary.

11. 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, the Tribunal has regard to any matters raised by the visa holder as to why the visa should not be cancelled, government policy guidelines contained in Migration Series Instruction (MSI) 368, and any other relevant considerations.

12. As a matter of policy, the following matters are regarded as “primary considerations” in the exercise of the discretion to cancel a temporary visa:

    ·     the purpose of the visa holder’s travel to and stay in Australia;

    ·     the extent of non-compliance with any conditions subject to which the visa was granted;

    ·     the degree of hardship which may be caused to the visa holder and any family members;

    ·     whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations;

    ·     the circumstances in which the ground for cancellation arose; and

    ·     the person’s behaviour in relation to the Department, now and on previous occasions.

13. Secondary considerations are identified in MSI 368 as any other matters the visa holder raises.

14. In the present case, the delegate in cancelling the visa was satisfied that the ground provided by s.116 (1) (b) existed because the applicant was observed working in breach of condition 8115.

15. Regulation 1.03 of the Regulations defines work as ‘an activity that, in Australia, normally attracts remuneration’. 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”: Braun v MILGEA (1991) 33 FCR 152 at 156 (which considered the definition in then r.2, in which work was also defined “as an activity that, in Australia, normally attracts remuneration”).

16. In Braun, however, the Court acknowledged that individuals do engage in activities of a domestic or social character. In such a case the activity should not be regarded as work. The assessment of whether an activity should be regarded as work is a “matter of evaluation and degree”: at 156.

17. In Kim v Witton (1995) 59 FCR 258, Sackville J stated (at 268): The test given is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason. The test to be applied is an objective one, namely, whether the ‘activity’ performed by the individual normally attracts remuneration in Australia. The test requires going beyond the nature of the activity in question to the particular context of the assistance provided. Commercial, social, domestic or altruistic motivations may, in the context of all the facts of a case, assist in determining whether a particular activity undertaken voluntarily is one that normally attracts remuneration: Dib v MIMA (1998) 82 FCR 489, at 495-496.

    CLAIMS AND EVIDENCE

18. The applicant most recently arrived in Australia on 23 July 2018 on a Subclass UD 601 visa. That visa was subject to conditions, including condition 8115.

19. The Department file indicates that a Notice of Intention to Consider Cancellation was given to the applicant on 16 August 2018. A copy of that Notice is held on the Department file. A decision to cancel the visa was made the same day and there is a record that the applicant signed for and received the decision on the same date.

20. According to information on the Notice, Australian Border Force (ABF) Officers on Christmas Island attended Poon Saan Coffee Shop and observed the applicant working on 15 August 2018. He was sighted serving, working in the kitchen and cooking meals. On 16 August 2018 ABF Officers observed the applicant manning the counter at the coffee shop when customers attended.

21. ABF Officers interviewed the applicant on 16 August 2018 regarding his activities on the premises. The applicant explained he was in Australia on a Tourist visa and was helping out his aunty who was sick. He said he helped out with heavy lifting. When asked about earlier sightings of him cooking, running the counter and serving at the coffee shop the applicant replied he had helped out when busy. He was informed he had been observed since 21 July 2018.

22. The Tribunal must determine whether the ground for cancellation under s.116 (1) (b) identified by the delegate has been made out.

23. The onus of establishing the facts which may lead to cancellation is on the Minister or, on review, the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: Zhao v MIMIA [2000] FCA 1235 at [25] and [32].

24. The applicant’s visa was cancelled on the basis of a failure to comply with a condition of the visa (s.116 (1) (b)). The relevant condition was identified by the delegate as 8115. The delegate found that the applicant had not complied with condition 8115 because ABF Officers had observed the applicant working. At interview the applicant admitted he had been helping out.

25. For the following reasons, the Tribunal is satisfied that the applicant has not complied with condition 8115 of the visa.

26. At the hearing the applicant said that he had not been working in Australia. Rather he explained he had been helping out his aunt who was the owner of the coffee shop and who was unwell. He produced a medical report regarding the medical condition of his aunt Ms Lee to the Tribunal.

27. The Tribunal notes the evidence that ABF Officers confirmed that the applicant had been observed working.

28. The applicant was given the opportunity to explain the circumstances. He gave evidence that he was helping his aunt with heavy lifting at the shop which she was not able to do. He said she had a paid employee to work for her and that person was not him. His evidence was to the effect that he would hang out at the shop and lend a hand if his aunt could not do something.

29. The Tribunal has evidence of the interview with the applicant and an admission by the applicant that in its view indicates that he was involved in work. Whilst the applicant gave evidence that he had not been paid, the Tribunal formed a view that the activity he was observed doing is an “activity” that normally attracts remuneration in Australia. The Tribunal considers that it constitutes “work” for the purposes of 8115.

30. The Tribunal considers that the evidence that the applicant was engaged in working has not been refuted.

31. Accordingly, the Tribunal is satisfied that the applicant has not complied with condition 8115 of the visa. As the circumstances specified in r.2.43 (2) (above, paragraph 8) do not apply in the current circumstances, cancellation of the visa is not mandatory.

    Consideration of discretion to cancel the visa

32. Having found that the applicant has not complied with condition 8115 of the visa the Tribunal must next consider whether to exercise its discretion under s.116 (1) to cancel the visa.

33. The applicant was invited to provide information as to why the visa should not be cancelled. As indicated the applicant produced a document on Indian Ocean Territories Health Services Christmas Island dated 21 August 2018 which is signed by Doctor Ai-Lene Chan. The document certifies that Ms Swee Chan Lee has been seen and is a regular patient of the clinic. It refers to a chronic neck condition she has with radiation to the left arm and numbness in the elbow and thumb. It refers to a suspected foraminal encroachment at the C4/5 (left) and C5/6 (bilateral) at the spinal cord (neck). The document indicates Ms Chan is waiting for a neurological review. The report goes on to indicate that she has difficulties performing her duties as a chef and business owner for her coffee shop.

34. Ms Lee gave evidence confirming her medical condition.

35. The Tribunal takes the evidence regarding Ms Lee’s health into consideration.

36. The Tribunal takes the evidence of Mr Chun Wei Tan regarding his sister’s relationship with the applicant into consideration.

37. The Tribunal has had regard to the policy guidelines that set out the matters that should be taken into account considering whether to cancel a visa.

    The purpose of the visa holder’s travel to and stay in Australia;

38. The Tribunal asked the applicant about the purpose of his travel to Australia. The applicant claimed that he came to Christmas Island and stayed as he had a girlfriend on Christmas Island. As well he has two aunts and is close to his aunt who owns the Poon Saan coffee shop. The Tribunal accepts the applicant wanted to spend time with his girlfriend and visit his two aunts. He also stated that he liked the Island and wanted to continue to holiday on it. The Tribunal has considered whether the nature of the applicant’s reason for travel contains compassionate reasons. The applicant stated that he and his family knew his aunt Ms Swee Chan Lee had been very unwell before he travelled to Australia.

39. The Tribunal places some weight against cancellation on the reasons for the applicant’s visit to Australia to check on his aunt’s health and to meet up with his girlfriend.

    The degree of hardship that may be caused to the visa holder and any family members

40. Mr Lee gave evidence that he has no dependents in Australia. There is evidence however that he stays with his aunt Ms Lee which is helpful to her. Both the applicant and Ms Lee gave evidence of the close relationship they have shared since the applicant was a young boy. Ms Lee is the sister of the applicant’s father.

41. The Tribunal has carefully considered the evidence of Dr Ai-Lene Chan and places some weight on the applicant’s claimed compassionate purpose of assisting his aunt in many ways due to her current health issues.

    The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa);

42. There is evidence supported by Dr Ai-Lene Chan that the applicant’s aunt is suffering a severe medical condition. The Tribunal considers that there are extenuating or compassionate circumstances in all the circumstances that should be given weight in determining whether to cancel the visa.

    The visa holder’s past and present behaviour towards the Department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions)

43. The record of the decision to cancel the applicant’s visa refers to him being co-operative. The Tribunal gives weight to this.

    Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation,

44. There is no information available to the Tribunal in regard to this issue. This consideration is therefore neutral and does not weigh for or against cancellation.

    Extent of compliance with visa conditions

45. The applicant had only been in Australia a number of weeks when confronted by ABF Officers. Regarding compliance with the no work condition, the Tribunal notes the applicant stated at interview that he had been helping his aunt for 2 weeks and that he had helped with various things depending on the business of the business. At the hearing he also said he had “helped out” for some two weeks. The Tribunal gives weight against cancellation to the short length of time the applicant “helped out” in breach of his visa conditions.

    Any other matters raised by the visa holder.

46. The Tribunal accepts the applicant has family being his two aunts on Christmas Island as well as a girlfriend that he is building a stronger relationship with. The Tribunal notes the applicant would have a 3 year exclusion period if his visa was cancelled which would affect his ability to maintain his relationship.  The Tribunal considers that this consideration weighs against cancellation in all the circumstances.

47. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

48. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 601 (Electronic Travel Authority) visa.

    Mary Urquhart
    Member