Ouriaghli Zefzafi (Migration) - [2023] AATA 4808

Ouriaghli Zefzafi (Migration) [2023] AATA 4808 (5 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Omar Ouriaghli Zefzafi
REPRESENTATIVE:  Mrs Elyse Trotter
CASE NUMBER:  2313612
HOME AFFAIRS REFERENCE(S):          BCC2023/1322108
MEMBER:Louise Nicholls
DATE:5 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 05 April 2024 at 2:01pm
CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – applicant convicted of several offences – plans to study in Australia – visa already ceased – labour shortage in skilled occupation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140, 501
Migration Regulations 1994, r 2.43
CASES
Minister for Home Affairs v Brown (2020) 376 ALR 133
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been convicted of several offences while in Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
The applicant was represented in relation to the review. 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 affirmed.
Material before the Tribunal
The applicant provided the following documents held on the Department’s file no BCC2023/1322108:
·Applicant’s submission dated 5 August 2023.
·Representative’s submissions dated 8 August 2023.
·Copy of applicant’s Belgian passport issued on 18 October 2022.
·Bail decision made by police officer dated 24 January 2023.
·Weekly time sheet issued from the applicant’s employer.
·Applicant’s statutory declaration made on 9 August 2023.
·Untranslated Belgium police check dated 25 October 2022.
·Letter of support from the applicant’s employer dated 9 August 2023.
The applicant provided the following documents to the Tribunal held on the Tribunal’s file no 2313612:
·Delegate’s decision record dated 28 August 2023.
·Representative’s submissions dated 12 December 2023.
·Applicant’s statutory declaration made on 11 December 2023.
·Copy of applicant’s passport biodata page.
·Belgium police check (no convictions).
·Employment timesheets.
·Statutory declarations made by the applicant’s employers and the applicant’s mother.
·Reasons for bail decision by police officer dated 24 January 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 4808
Decision Date: 5 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by Ouriaghli Zefzafi against the cancellation of his Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The Minister had cancelled the visa under section 116 of the Migration Act 1958 (Cth), specifically relying on the ground set out in section 116(1)(g). The applicant, a Belgian national, arrived in Australia on 30 October 2023 and had been working as a roofer. A preliminary issue involved a certificate restricting the disclosure of certain information in the Departmental file, which the Tribunal found to be valid but not relevant to the cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(g) of the Act was established, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider all relevant circumstances, including government policy, the applicant's personal circumstances, his compliance with visa conditions, and the nature of the offences that led to the cancellation consideration. The applicant's representative argued that the offences were not severe enough to warrant cancellation and that the applicant had otherwise complied with his visa conditions and had strong community ties.

The Tribunal found that the ground for cancellation under section 116(1)(g) was satisfied. In exercising its discretion regarding cancellation, the Tribunal acknowledged the applicant's cooperation with the Department, his general compliance with visa conditions, and the support from his employer. However, the Tribunal weighed these factors against other considerations. It noted that the applicant had not made concrete plans for his future in Australia beyond his working holiday visa and had not made significant inquiries about obtaining a student visa. The Tribunal also distinguished the applicant's situation from the case law cited by his representative, finding those precedents not analogous to the present circumstances.

Ultimately, the Tribunal concluded that the visa should be cancelled. Despite accepting that the applicant had been a hardworking employee and had not committed criminal offences in Belgium, the Tribunal found that other factors weighed heavily in favour of cancellation. The Tribunal ordered that the cancellation of the applicant's visa be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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)(g) of the Act. 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 gave evidence at the hearing that is 31 years old and was born in Belgium. He attended school in Belgium and when he finished school he was apprenticed as a plumber. He worked as a plumber before he came to Australia. The applicant speaks French, Arabic and Dutch. His parents, brother and sister live in Belgium. His mother works in a hospital, his father works as a labourer, his sister works in a preschool and his brother is an electrician. The applicant arrived in Australia as the holder of a working holiday visa on 30 October 2023. He has a friend who is living in Sydney and the applicant found work as a roofer after he arrived in Australia. Non-disclosure certificate A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 375A of the Act. The Tribunal advised the applicant at hearing that the Department has the power to restrict information on its file in certain circumstances. In this matter the Department has restricted information relating to enquiries made by the Department to different government agencies to ascertain the applicant’s address for the purpose of sending a Notice of Intention to Consider Cancellation (NOICC). The reason given for the restriction of information in certain folios is because the disclosure would enable a person to ascertain the existence of a confidential source of information and disclose lawful methods of preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. The Tribunal explained it had an obligation to tell the applicant about the existence of the certificate and ask him if he wished to make submissions on the validity of the certificate. The Tribunal told the applicant that while it was of the view that the certificate was a valid certificate, it did not consider the restricted material was relevant to its consideration of the cancellation as the material appeared to be only relevant to discovering the applicant’s address for notification. The applicant and his representative did not make submissions on the validity of the notice, but the applicant’s representative requested a copy of the certificate for their records. The Tribunal is of the view that the certificate is a valid certificate as it covers documents and information given to the Department in confidence by third party agencies. However, the Tribunal considers the material in the documents is not relevant to the outcome of the review and the material does not prejudice the interests of the applicant and does not undermine the prospects of a favourable decision.Does the ground for cancellation exist?

Evidence

Evidence Before The Court

The applicant provided the following documents to the Tribunal held on the Tribunal’s file no 2313612:·Delegate’s decision record dated 28 August 2023.·Representative’s submissions dated 12 December 2023.·Applicant’s statutory declaration made on 11 December 2023.·Copy of applicant’s passport biodata page.·Belgium police check (no convictions).·Employment timesheets.·Statutory declarations made by the applicant’s employers and the applicant’s mother.·Reasons for bail decision by police officer dated 24 January 2023.CONSIDERATION OF CLAIMS AND EVIDENCE 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)(g) of the Act. 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 gave evidence at the hearing that is 31 years old and was born in Belgium. He attended school in Belgium and when he finished school he was apprenticed as a plumber. He worked as a plumber before he came to Australia. The applicant speaks French, Arabic and Dutch. His parents, brother and sister live in Belgium. His mother works in a hospital, his father works as a labourer, his sister works in a preschool and his brother is an electrician. The applicant arrived in Australia as the holder of a working holiday visa on 30 October 2023. He has a friend who is living in Sydney and the applicant found work as a roofer after he arrived in Australia. Non-disclosure certificate A preliminary issue for consideration concerns the issue of the certificate restricting disclosure of certain information in the Departmental file pursuant to s. 375A of the Act. The Tribunal advised the applicant at hearing that the Department has the power to restrict information on its file in certain circumstances. In this matter the Department has restricted information relating to enquiries made by the Department to different government agencies to ascertain the applicant’s address for the purpose of sending a Notice of Intention to Consider Cancellation (NOICC). The reason given for the restriction of information in certain folios is because the disclosure would enable a person to ascertain the existence of a confidential source of information and disclose lawful methods of preventing, detecting and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods. The Tribunal explained it had an obligation to tell the applicant about the existence of the certificate and ask him if he wished to make submissions on the validity of the certificate. The Tribunal told the applicant that while it was of the view that the certificate was a valid certificate, it did not consider the restricted material was relevant to its consideration of the cancellation as the material appeared to be only relevant to discovering the applicant’s address for notification. The applicant and his representative did not make submissions on the validity of the notice, but the applicant’s representative requested a copy of the certificate for their records.

Decision

Reasons for decision

She submitted that if his visa was cancelled that he faced a three-year exclusion period and could not apply for a student visa and study English.Conclusion Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The Tribunal has considered the evidence provided by the applicant and submissions made by his legal representative in determining whether the applicant’s visa should be cancelled. The Tribunal accepts that the applicant has been cooperative with the Department and that he has generally complied with the conditions of his working holiday visa. It accepts the submissions of the applicant’s representative that the requirements of condition 8547 were relaxed during the period of the COVID 19 pandemic and he was generally compliant with the other conditions attached to his visa. It also accepts that he has not committed any criminal offences in Belgium and, other than for the offences which are the subject of this decision, he has not committed any other offences in Australia. It accepts that his employer and two other persons have provided him with letters of support. It accepts he has been a hardworking employee and that his employer may find it difficult to replace him. However, with respect to his employment there is nothing which indicates that he could have remained working for his employer after his working holiday visa was due to cease in October 2023 even if his visa had not been cancelled. The applicant did not hold, nor had he applied for, a substantive visa which would have given him permission to work. Despite the factors set out above, the Tribunal considers there are other factors which weigh heavily in favour of the cancellation of his visa. The applicant’s representative made submissions on the nature of the applicant’s convictions, referring to one Federal Court authority[1] and two AAT decisions. He submitted:That the offences committed by the Applicant are in no way severe enough for the Review Applicant to be considered ‘criminal’ and to ultimately have his visa cancelled. In support of this, we also refer to recent decisions by the Tribunal where the applicants were convicted of offences similar to that of the Review Applicant, and the Tribunal Member still set the decision to cancel aside. [1] Minister for Home Affairs v Brown (2020) 376 ALR 133; [2020] FCAFC 21 With respect to the Federal Court authority the Tribunal does not consider it is analogous to the present matter. The subject of the cancellation in that matter was the holder of a permanent visa who had lived in Australia since he was 7 years of age and had an entirely different history of engagement with the Department. In relation to the first AAT decision the applicant’s conviction for sexual touching had been quashed and he was found guilty of a drug offence but the court did not proceed to a conviction. In the second AAT decision the subject of the decision was a traffic offence which was found to be at the lower end of offending.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. As set out below the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia. In the applicant’s representative’s submissions to the Tribunal he stated the applicant had never lived overseas and chose to apply for an Australian visa in terms of landscape and culture. He submitted the applicant is a roofer tiler/plumber by trade, and in line with the purpose of his visa, has successfully gained employment in Australia and acquired additional specialist skills and knowledge of work safety and practices. At the hearing the applicant stated that he wanted to leave Belgium and hoped to improve his English skills while he lived and worked in Australia. The Tribunal put it to him that the working holiday visa ceased after 12 months, and the purpose of the visa was to enable persons to holiday and work during that 12 months. He stated that during his time in Australia he has worked as a roofer for his friend, and he has travelled for work to Dubbo, Taree and the Gold Coast. The applicant provided a letter of support from his employer. His employer confirmed he had been working as a roofing contractor and that he had become friends with the applicant. His employer was aware that the applicant’s visa could be cancelled and asked that some leniency be exercised. He believed that the applicant had made some bad decisions which resulted in the charges against him. He stated that the applicant was remorseful and had stopped drinking since the incident. The applicant could not explain what he had planned to do when his 12-month working holiday visa ceased. He said he had no particular plans; he would just keep working and travelling. The Tribunal pointed out that his visa was due cease after 12 months and he would have had to apply for another visa or make arrangements to depart. He stated he was hoping to apply for a student visa. When asked what enquiries he had made about his eligibility for a student visa he stated he had heard about a school in Bankstown but did not know the name. He was hoping to study English language. However, he had not sought any advice about his options. He was focussing on his roofing work. The extent of compliance with visa conditions. In the applicant’s representative’s submissions to the Tribunal he stated that the applicant has complied wholly and substantially with visa conditions in relation to his visa, including conditions 8547 and 8548. Furthermore, there is no evidence that the applicant has been uncooperative with the Department.