Doan (Migration)

[2024] AATA 3101

Doan (Migration) [2024] AATA 3101 (22 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Kim Cuong Doan

REPRESENTATIVE:  Ms Ngoc Anh Donald

CASE NUMBER:  2402600

HOME AFFAIRS REFERENCE(S):          BCC2023/4372812

MEMBER:Margie Bourke

DATE:22 July 2024

PLACE OF DECISION:  Melbourne

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 22 July 2024 at 2:01pm

CATCHWORDS
MIGRATION – cancellation – Visitor (Class FA) visa – Subclass 600 (Visitor) – ground for cancellation – no work condition – notification requirements – not given a copy of the written Notice of Intention to Consider Cancellation (NOICC) – no authorised interpreter – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 119

Migration Regulations 1994 (Cth), Schedule 8, Condition 8101

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 February 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 600 (Visitor) visa under s.116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b), non-compliance with a condition of visa, on the basis that the applicant was the holder of a visitor visa, that was subject to condition 8101 which states the visa holder must not engage in work in Australia. The delegate was satisfied the applicant had been working at a nail salon and therefore was in breach of condition 8101. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, and the nature of the review. The Tribunal is of the view that the conduct of the hearing by video would allow the review applicant to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and to properly assess the evidence before it. The review did not involve the Tribunal putting a large amount of documents to the review applicant during the course of the hearing. The review was constituted to a member in the Melbourne registry, and the review applicant and her representatives were based in Queensland. For all these reasons the Tribunal considered it appropriate that the review hearing be conducted by way of video connection.

4. The applicant appeared before the Tribunal on 3 July 2024 by video with her representative to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant son, Doan Thanh Tan Nguyen, who attended on the same device as the review applicant. The Tribunal received oral evidence by telephone from a witness Thi Thuy Hang Phan. A further witness was available to give evidence by telephone but the Tribunal ran out of time. The hearing was not concluded on 3 July 2024 as the time scheduled for the interpreter to assist the hearing had expired and the interpreter had to leave. A further hearing was then scheduled for 22 July 2024.

5. The applicant appeared before the Tribunal on 22 July 2024 by video with her representative to give evidence and present arguments. The hearing was also attended by the witnesses Doan Thanh Tan Nguyen, and Thi Thuy Hang Phan, who both attended the hearing by video with the applicant.

6. The hearings were conducted with the assistance of an interpreter in the English and Vietnamese languages. The interpreter attended the hearings on 3 and 22 July 2024 by video.

7. The applicant was represented in relation to the review. The representative attended the hearings by video with the applicant.

8. 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

   Background information

9. The applicant came to Australia in September 2023 as the holder of a subclass 600 sponsored family visitor visa. The applicant has adult two children who reside in Australia, a daughter in Victoria and a son in Queensland. The applicant stated that the purpose of the visit was to travel and to visit family, namely her children. The Tribunal accepts that the visitor visa was granted for a period of three years, with multiple entries, and the applicant cannot remain in Australia for a period in excess of 12 months.

10. The applicant stated she arrived in Victoria in September and stayed with her daughter before travelling to Queensland. The applicant stated that she was not staying with her son in Queensland but was staying with her ex-husband’s brother and his family. The applicant stated that she wished to assist her son by supporting his family when he was working, but his wife and child were still in Vietnam in January 2024, and did not arrive until March 2024.

11. The applicant stated that her brother-in-law (the brother of her ex-husband) was in Vietnam, and she agreed to assist look after his two children while his wife was working. The applicant resided at her brother-in-law’s home.

    Notice of proposed cancellation

12. Under s.119 of the Act, the Department must notify a visa holder if the Department is considering cancelling a visa under s.116. The Act sets out that notification must either be in the prescribed way (although the regulations do not set out prescribed methods of notification) or in a way that the Department considers to be appropriate.

13. In the notification the visa holder must be informed that there appear to be grounds for cancelling the visa, and must be given the particulars of the grounds for cancelling the visa and the information which is the basis for which the grounds appear to exist. The visa holder must also be invited to show within a specified time that those grounds do not exist or why the visa holders visa should not be cancelled.

14. In the review applicant’s submission from her representative dated 9 February 2024 provided to the Tribunal, the representative submitted that the review was based on the lack of valid notification of the intention to consider cancellation of the visa, and specified that no evidence was ever shown to the applicant to explain the basis for its decision to cancel the visa.

15. The representative provided a submission to the Tribunal dated 24 June 2024, in which she submitted the applicant did not receive the notice of intention to consider cancellation of the visa, and further did not receive the decision record, and only received Part C, the notification of the decision to cancel the visa under s.116 of the Act.

16. The applicant provided a statutory declaration with a translation of the statutory declaration dated 21 June 2024. The applicant declares that on 31 January 2024 the officers from the Department came to her brother-in-law’s salon when she was present. The applicant declares that at the time, with other people, she was cleaning up in preparation to close the shop. The applicant called her son to assist her to communicate with the Department officers because she had difficulty with the English language, and her son attended the salon. The applicant declares that on 31 January 2024 she was advised by the officers to attend an interview in Brisbane, and that her visa would be cancelled. The applicant declares that she attended an interview on 8 February 2024 and explained she was only helping clean the shop and was not working for money. The applicant declares that following the interview she was provided with a decision to cancel her visa, and only received Part C which is the notification of the decision.

17. The applicant’s son also provided a statutory declaration dated 21 June 2024. The applicant’s son declares that his mother called him on the phone to say that three officers from the Department of Home Affairs were at the salon on 31 January 2024, and he attended there at her request. The applicant’s son declares the officers told him they were considering cancelling his mother’s tourist visa because she was in breach of the no work condition. He declared they had observed seeing her with a broom in her hands and that constituted work. The applicant’s son declared the officers said they wanted to interview his mother and gave him a telephone number to contact about the arrangements for the interview.

18. The applicant and her son gave evidence in the hearing that at the time the officers attended on 31 January 2024 they were told that the officers considered the applicant had been working and was in breach of condition 8101, that she was not to work while the holder of her visitor visa. The applicant and her son gave evidence in the hearing that the officers gave the applicant’s son a business card with a contact number on it, and requested they attend an interview.

19. The evidence of the applicant and her son is consistent with the notes on the Department file made by the officers who attended the Rose Nail and Beauty salon on 31 January 2024. The case notes disclose that when the officers attended the salon there were four workers, and that the applicant had been seen sweeping the floors when they entered. The case notes record that the applicant left of the salon, was followed by one officer, and advised she was required to provide some identification. The applicant returned to the salon with the officer. The applicant stated to the officer that she had left the salon to go to the toilet. The applicant contacted someone on her mobile phone, and afterwards the applicant’s son, Mr Nguyen, attended the salon.

20. In the notes on the Department file made by the officers, it is recorded that the applicant had a conversation with the officers, and her son assisted with some translation. A Notice of Intention to Consider Cancellation (referred to as NOICC in the notes) was completed in the salon. Two of the workers identified as Australian permanent residents had left the salon with the permission of the Department officers, and Thi Thuy Hang Phan, an Australian citizen remained in the salon. The officers record that the applicant had been located working in non-compliance with her visa condition, and that there appeared to be grounds for cancelling her visa, and she would be interviewed. The details of the interview date time and location were filled in on the NOICC.

21. The case notes record that the NOICC was completed, and was signed by the applicant, and by her son as the interpreter. The applicant also completed and signed another form ( Form 929) in relation to her contact details. The case notes state that the appointment details for the interview, namely the time, date and location were written on the back of a business card and provided to the applicant. There is no note that the applicant was provided with a copy of the NOICC.

22. After the hearing which was not concluded on 3 July 2024, the Tribunal wrote to the applicant, inviting the applicant to comment or respond to information pursuant to s.359 of the Act. The Tribunal advised in the hearing on 3 July 2024 both the applicant and her son gave oral evidence that they did not receive any written notification from the Department at the salon on 31 January 2024, and both stated they received a business card from the officers which had the interview details or telephone contacts to arrange the interview. The Tribunal attached to the email sent to the applicant the Notice of Intention to Consider Cancellation of the applicant’s visa dated 31 January 2024 which had the signature of the applicant and the applicant’s son recorded as signed on 31 January 2024 at 18.02pm.

23. The Tribunal explained in the invitation to comment or respond, that the relevance of the notice is that it records the information of intention to consider cancelling the applicant’s visa was recorded at the salon on 31 January 2024, the notice records there appear to be grounds for cancelling the visa, records the particulars of the grounds, provides the information on which those grounds appear to exist, and invites the applicant to attend an interview on 8 February 2024 at 10am, at an address provided in Brisbane and the notice which had been signed by the applicant and by her son who had acted as interpreter. The Tribunal advised that the Notice may be considered as evidence that the applicant had been properly advised the Department was considering cancelling the applicant’s visa, the applicant had been given grounds of the reason for cancelling the visa, and the information on which the grounds appeared to exist, and the applicant was invited to an interview to show the grounds do not exist or why the applicant’s visa should not be cancelled.

24. The Tribunal further explained in the invitation to comment that the consequences of the Tribunal relying on the Notice of intention to consider cancelling the applicant’s visa, is the Tribunal would not find the Department failed to notify the applicant that it was considering cancelling the applicant’s visa, or that the Department had failed to comply with the notification requirements in s.119 of the Act if the applicant was provided with the Notice of Intention to Consider Cancellation. The Tribunal advised that this would be a reason or part of the reason for finding that the applicant was properly notified pursuant to s.119, and the Tribunal should proceed to consider whether the grounds for cancellation of the applicant’s visa exist.

25. The applicant was invited to provide her written comments and responses within 14 days. The timeframe was assessed as reasonable, and able to be received and considered prior to the next hearing date.

26. The applicant provided a submission from her representative dated 18 July 2024. The representative reiterated the applicant’s instructions that she never received the Notice of Intention to Consider Cancellation, which is the form 1099 and also recorded as Part A.

27. In the hearing on 22 July 2024 the applicant and her son repeated their evidence that they did not receive a copy of the Notice of Intention to Consider Cancellation on 31 January 2024. The applicant and her son confirmed they signed the document in the salon on 31 January 2024.

28. The Tribunal has assessed that the notes on the Department file record that the applicant and her son were given a business card with the details of the proposed interview, including its location, time and date. These details are also recorded on the Notice of Intention to Consider Cancellation which was signed by the applicant and her son on 31 January 2024. The Tribunal assesses that there would be no need for the Department officers to provide the details of the proposed interview on a business card if the applicant or her son were provided with a copy of the Notice of Intention to Consider Cancellation on 31 January 2024.

29. The Tribunal is satisfied, based on the consistent evidence of the applicant and her son, that they did not receive a copy of the Notice of Intention to Consider Cancellation on 31 January 2024, and did not receive this document until it was provided by the Tribunal with the letter dated 4 July 2024. The Tribunal is satisfied that the applicant was provided with a business card which recorded the time, date and location for the interview scheduled on 8 February 2024. The Tribunal is satisfied that the evidence of the applicant is consistent with the notes of the Department officers, which record the applicant was given a business card with the details of the interview, and which does not record the applicant was given a copy of the Notice of Intention to Consider Cancellation on 31 January 2024.

30. The Tribunal is satisfied that the applicant had a conversation with the Department officers in the salon while her son was present, and another worker at the salon was present. The Tribunal is satisfied that the applicant was advised the Department officers considered that she had been working in breach of condition 8101 of her visa, and this was grounds for cancellation of her visitor visa. The Tribunal is satisfied that the applicant was advised of an interview and given the details of the location time and date.

    Is the notice sufficient to meet the requirements of s.119?

31. S.119 requires that if the Department is considering cancelling a visa under s.116, it must notify the visa holder in the prescribed way, or in a way that the Department considers to be appropriate; s.119(2). The notification must inform the visa holder that there appear to be grounds for cancelling the visa, gives the particulars of these grounds and the information on which the grounds appear to exist, and invite the visa holder to show within a specified time that those grounds do not exist or why the visa should not be cancelled.

32. In this instance condition 8101 is attached to the applicant’s visitor visa. This condition requires the visa holder must not engage in work in Australia. It is not disputed that when the Department officers attended the Rose Nail and Beauty salon the applicant was sweeping with a broom just prior to closing the shop. It is not disputed that there were three other workers in the shop at the time.

33. The tribunal heard evidence from the applicant, from Thi Thuy Hang Phan who was working at the salon on 31 January 2024, and from the applicant’s son who attended the salon after the applicant telephoned him on 31 January 2024.

34. The tribunal did not hear evidence from the nominated witness Hon Kim Ho, but has considered his signed statement and accepts that he is the owner of the salon and the brother of the applicant’s ex-husband. The Tribunal accepts that Mr Ho was in Vietnam on 31 January 2024. Mr Ho states the applicant would sometimes attend the salon, and help with minor duties including making tea and coffee, tidying up or sweeping the floor. Mr Ho states the applicant was not relied on, and did not receive any paid compensation for the task she performed. He stated she was allowed to observe staff to learn skills.

35. The Tribunal asked the applicant about the incident in the salon on 31 January 2024 when the Department officers attended. The applicant told the Tribunal she did not remember how many other people were in the shop, and did not know who the other people were there.

36. The applicant stated that Mr Ho’s wife, the manager, was not there. The applicant stated that Ms Phan was there and she was looking at her phone. The applicant stated there were other employees there and they were collecting their items to go home. The applicant stated she was staying in the shop to assist her sister-in-law who had gone out. The applicant stated she was helping to clean up so the others could go home and this is why she was sweeping the floor. In answer to a question from the Tribunal the applicant could not explain why she could remember exactly what the staff were doing, but could not remember how many other people in the shop. The applicant stated she did not know the names of the other staff.

37. The Tribunal finds the applicant’s responses were evasive. Based on the written and oral evidence before it, it is relevant to note that the Tribunal finds that the applicant was working at the salon on 31 January 2024, and was part of the team of four employees at the salon, and that all the employees were cleaning up in preparation for closing.

38. Based on the evidence of the applicant and the two witnesses the Tribunal is satisfied that on 31 January 2024 three officers from the Department attended the Rose Nail and Beauty salon in Burleigh Waters in Queensland at approximately 5pm. The Tribunal is satisfied that one of the officers was Vietnamese and spoke Vietnamese.

39. The Tribunal is satisfied based on the evidence of the applicant, her son, Ms Phan and the notes of the Department officers, that the applicant had a conversation with the Department officers in the salon. The Tribunal is satisfied that one of the Department officers was Vietnamese and spoke Vietnamese. The Tribunal is satisfied that the applicant’s son also assisted to interpret and was named as the interpreter on the Notice of Intention to Consider cancellation dated 31 January 2024. The Tribunal is satisfied that there was no authorised interpreter arranged to assist the applicant at this conversation.

1. The Tribunal is satisfied that the Department offices completed a Notice of Intention to Consider Cancellation dated 31 January 2024 based on a conversation with the applicant in the salon on 31 January 2024. The Tribunal is satisfied that this document was signed by the applicant and her son after it was completed. The Tribunal is satisfied that a copy of this document was not provided to the applicant or her son on 31 January 2024. The Tribunal is satisfied that the applicant was not provided with a written copy of the Notice of Intention to Consider Cancellation.

2. The Tribunal has also noted that the applicant was asked questions in front of another worker at the salon by the Department officers in relation to whether she was working at the salon on 31 January 2024.

3. The Tribunal is satisfied that the conversation with the applicant included a discussion that she was seen sweeping the floor and that it was considered she was working at the salon on 31 January 2024 in breach of condition 8101, a no work condition attached to her visitor visa. The Tribunal is satisfied that the conversation with the applicant whilst the Notice of Intention to Consider Cancellation was being written out included discussion that non-compliance with a visa condition would be a ground to consider the cancellation of the applicant’s visa.

4. The Tribunal finds that the applicant was not given a copy of the written Notice of Intention to Consider Cancellation. The Tribunal finds that the Department officers had a discussion in relation to apparent grounds for cancelling the visa, the particulars of those grounds and the information upon which the grounds appear to exist with the applicant without an authorised interpreter. The Tribunal finds the Department officers had a discussion in relation to the applicant’s non-compliance with a condition of her visa, and in relation to working at a salon, in the presence of a person who worked at the salon.

5. The Tribunal concludes that writing out a Notice of Intention to Consider Cancellation in the presence of the applicant and not giving her a copy of the notice, is not appropriate notification for the purposes of s.119(2). The Tribunal concludes that having a conversation whilst writing out a Notice of Intention to Consider Cancellation with the applicant, without an authorised interpreter, is not sufficient to be appropriate verbal notification of the particulars of the grounds for cancelling a visa, and of information for which the grounds appear to exist. Further the Tribunal is not satisfied that writing the details of a proposed interview, namely the location, date and time on a business card, amounts to an invitation to the applicant to show that the grounds do not exist or grounds why the visa should not be cancelled.

6. The Tribunal is not satisfied that the applicant was properly or appropriately verbally informed that there appear to be grounds for cancelling the visa or given particulars of those grounds or of the information on which the grounds appear to exist. The Tribunal is not satisfied that the applicant was given sufficient verbal notice that the Department is considering cancelling a visa under s.116 of the Act that meets the requirements of s.119 of the Act.

7. The Tribunal is not satisfied that the applicant was given written notice that the Department is considering cancelling a visa under s.116 of the Act.

8. For the above reasons the Tribunal is not satisfied that the applicant has been effectively or appropriately notified of the intention by the Department to consider cancelling her visa under s.116.

9. The Tribunal has concluded that the failure to give the applicant a copy of the Notice of Intention to Consider Cancellation to the applicant is not a lack of procedural fairness that can be cured by the processes available to the Tribunal. The Tribunal cannot cure the fact that it is not satisfied that the applicant was appropriately or validly notified that the Department was considering cancelling her visa, for the purpose of s.119 of the Act.

10. Therefore, the Tribunal is not satisfied that the notification of the Department’s intention to consider cancelling the applicant’s visa meets the requirements of  s.119. As the applicant was not notified of the Departments intention to consider cancelling her visa, it follows that the decision to cancel the applicant’s visa must be set aside. 

11. For this reason, the Tribunal finds that the decision to cancel the applicant’s visa should be set aside.

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 600 (Visitor) visa.

    Margie Bourke
    Member