Kaur (Migration)

[2018] AATA 5728

Kaur (Migration) [2018] AATA 5728 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Kamaljeet Kaur

CASE NUMBER:  1721813

HOME AFFAIRS REFERENCE(S):          P17/1152

MEMBER:Stavros Georgiadis

DATE:7 November 2018

PLACE OF DECISION:  Adelaide

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 7 November 2018 at 3:55pm

CATCHWORDS
MIGRATION – cancellation – Visitor (Class FA) visa – Subclass 600 – applicant not working in Australia – visiting daughter – illness – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 119, 120
Migration Regulations 1994, Schedule 8, Condition 8101

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 600 (Visitor) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with ‘no work’ condition 8101 of her visa. 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 applicant appeared before the Tribunal on 8 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, Harpreet Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by her registered migration agent.

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) that the visa holder must not engage in work in Australia. 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 8101 attached to the applicant’s visa. This condition requires that the visa holder must not engage in work in Australia.

8. The applicant submits that she has not engaged in work in Australia or breached any condition of her visa.  She was last granted a Subclass 600 (Visitor) visa from 18 February 2017 for the purpose of visiting and caring for her daughter in Australia. Her daughter, Harpreet Kaur, is an Australian Citizen.  The applicant has previously been granted Subclass 600 visas from as early as February 2016.

9. The applicant’s evidence is consistent with the written submissions of 26 September 2018 which set out as follows:

   ... “I have a daughter, Harpreet Kaur, who is a citizen of Australia and who unfortunately was diagnosed with cancer in 2016. Since she was staying alone at Murray Bridge and was seriously sick, I left my son and husband in India and came to Australia to look after her. It is respectfully submitted that I have had no formal qualification of a degree or diploma to my credit and my first language is Hindi. I can speak Hindi and Punjabi fluently and also understand the conversation in these two languages. I do not know how to read and write English and since I have had no education or learning in the English language, resultantly, I do not understand English at all. I have been a housewife throughout my life and since I cooked food for my family every day, I have acquired the skills of cooking various dishes.

   ... I came to Australia in March 2017. I stayed with my ailing daughter at Murray Bridge. I went to Melbourne to visit some family friends on the 26th of August and came back to my daughter on the 1st of September 2017.  ... On the 8th of September 2017, I had a bout of severe flu and became sick. My daughter Harpreet was also not feeling well on that day. I told my daughter to take me to a doctor but she was not in a position to get up and drive as she was feeling drowsy because of medicines chemotherapy and other treatment for her cancer, so she, in turn, requested her friend Davinder Singh to take me to a doctor.

   ... My daughter’s friend came to our house in his car in the afternoon on the 8th of September and picked me up to take me to a doctor. On our way to the doctor, he started a conversation with me in Punjabi and told me that he was working at Swanport Harvest, located at Murray Bridge and was on their way to the doctor. He told me that he had some work there. He asked me if we could stop for ten minutes on the way as he wanted to meet his employer for some time. He also asked me if I wanted to see the factory from inside for 5 minutes, to which I replied yes as I had never seen any factory in Australia from inside. While we were inside the premises of Swanport Harvest, I saw fresh and beautiful cauliflower being laid and moved on the conveyor belt. I had never seen such fresh and good quality cauliflower in India. I asked him if I could buy one or two cauliflowers to take home so as to cook for my daughter. He after speaking to his employer told me that yes I could pick up one or two pieces of cauliflower I liked from the belt for free but for safety and hygiene reasons, I had to wear the vest. He gave me a vest which I wore and went onto the platform where the conveyor belt was located.

   There were several workers working on the belt at that time. They were all wearing identical clothes. I chose two of the best pieces of cauliflower to take home. At that very moment, a few people came and told everyone to stop doing what they were doing immediately. By then I had collected two pieces of cauliflower which I had chosen to take home and was returning to the waiting area where I had sat earlier when I had entered the factory. I was stopped by a lady midway and taken to one side. She told me something in English which I did not understand at all. At that moment, a girl who was standing there told me that she was a worker in the factory and informed me in Punjabi that the lady was from the Immigration Department and she was alleging that I was working in the factory. I was completely shocked and dumbfounded by hearing that allegation. I told that girl the entire story in Punjabi and she tried to convey the same to the lady in English. Since I do not speak or understand English at all, I am not aware as to what was conveyed by that girl to the lady from the Immigration. I am also not aware if the girl could actually convey and translate my story to the lady in English as I did not know the girl at all or the fact about her command over the English language.

   It is stated with a full sense of responsibility that I was never offered a translator/interpreter in Hindi or Punjabi. I was told that I had breached a condition of my visa by illegally working in the factory. I strongly denied that allegation and told my entire abovementioned story and events to the girl who was working there. I told the girl that I had come to Murray Bridge just a week back and had picked up the flu, hence was on my way to the doctor. After a few minutes, the lady took my signatures (which I did with a lot of difficulties as I do not know how to read and write Hindi and Punjabi as well because I am not literate at all) at a few places and told something in English to that girl who was earlier conversing with the lady, purportedly translating what I was saying to her and the girl, in turn, informed me that my visa stood cancelled. I was appalled and aghast by the news and almost fainted on the spot. Some people including my daughter’s friend brought some water for me. In the meantime, my daughter was also called there. Thereafter, I wanted to lie down and take rest so I told my daughter to take me back home.  Also, my daughter was informed by the owner of the factory that the departmental officers had specifically asked him and the manager of Swanport Harvest regarding my employment and both of them had denied that I was ever employed there and both of them had said that they had not seen me ever before that day.

   ... I was so traumatized because of this incident that I had hallucinations and could not sleep in the night and kept thinking about the whole episode in the next few days. My mental health started deteriorating and I almost went into depression. My daughter took me to a Mental Health Clinic and I received counselling there on the regular basis. This incident has left a deep scar on my mind and I have lost the capacity to think rationally and always have the feeling that I am not in the right frame of mind. I have been arbitrarily punished without any fault on my part. I think I was in the wrong place at the wrong time. ...”

10. The applicant’s legal representative also made submissions with reference to the Procedures Advice Manual (PAM) and the circumstances leading to the cancellation of the visa. The submission is that the applicant was given a notice under Section 116 of the Act, on 8 September 2017 of an intention to consider cancellation (NOICC) of her visitor SC 600 for [alleged] breach of condition 8101 (No work). The submission is that the procedures set out in the PAM guide for issuing the NOICC and making a decision to either cancel or not cancel the visa are to ensure that an applicant is not deprived of an opportunity to effectively understand the allegations against them, have sufficient time to respond to those allegations and also have the opportunity of explaining their position regarding those allegations. The underlying principle is not to deprive the applicant of procedural fairness.

11. The applicant submits that the requisite procedure was not followed in the present case as the applicant does not understand English whatsoever, and she was not offered an interpreter by the Immigration Department officials when interviewed. Nor was she given a reasonable time to respond.  In these circumstances, the submission is that the applicant was not able to understand the allegations against her in the first place, and could therefore, not be expected to give an effective explanation or adequately reply to those grounds. The applicant also submits that she is not aware if her explanations were conveyed correctly to the departmental officers by a Punjabi speaking employee in the factory who volunteered to assist during the interview. Section 120 of the Act stipulates that certain information must be given to the visa holder. It is not evident that this information was conveyed in a way the applicant could properly understand given the absence of an accredited or qualified interpreter and the time frame of 3 minutes allowed for response. She submits she was told to sign in a few places which she did in “Hindi” as she cannot read, speak or write English. This, she submits is a violation of Sections 119 and 120 (2)(b) of the Act.

12. The applicant submits that the wrong interpretation of what she actually told the Department is amply proved from what the NOICC record shows.  She is alleged, for example, to have said that her “only son” had died in India and that she only has her daughter in Australia claiming “I do not have anyone in India”.  She submits this is “absolutely incorrect” as the applicant has a son and a husband in India and therefore, had no reason to say she did not have a son or husband in India, especially when the facts were otherwise and this is readily ascertainable from the visa application documents. She explained at the hearing that she had mentioned another son had passed away in India but made no reference to him being an “only son”.

13. The Tribunal accepts the submission that there is nothing on the record to show conclusively that the [alleged] employer had confirmed the applicant was employed at Swanport Harvest. Rather, the oral evidence is that the applicant said “I don’t work here” and had responded she was only collecting a few pieces of cauliflower for her own personal use as invited to do so there. She also denies having said she was working there for “one week” as her comment “I have been here a week” was in reference to being back in Murray Bridge after returning from visiting relatives in Melbourne the week earlier. This may have been misconstrued by departmental officers as reference to work for a week.  Also the wearing of a “hi-vis vest” is not conclusive, in the Tribunal’s view, of the applicant working at that workplace in circumstances where visitors to the factory floor would also be required to wear safety clothing when visiting.

14. The Tribunal has had the benefit of observing the applicant during the hearing and carefully questioning her in respect of those matters raised in the decision record adverse to her case.  The Tribunal considers the applicant’s evidence was provided in a spontaneous and straight forward manner, without any attempt to avoid or deflect questions. She was visibly emotional at times when it became apparent that her responses had been misunderstood. The Tribunal has also taken into account the limited education and literacy of the applicant and that her responses were provided through use of an accredited interpreter at the hearing which was not the case at the interview at the worksite on 8 September 2017.

15. The Tribunal also considers the applicant’s responses are consistent in the context of other evidence available. For example, the evidence from the applicant’s daughter is that she has savings from full-time work but relies on her mother to care for her in Australia given her chemotherapy treatment for cancer and her substantial limitations in being able to cook and wash for herself on or around September 2017. Only the applicant and her daughter reside in the household. This after all, is the purpose of the applicant’s visit to Australia under the visa and it is inconsistent with the applicant taking time away from the care of her daughter to engage in employment. 

16. The Tribunal is satisfied therefore, that the applicant has provided truthful and consistent responses having regard to her answers and all the available evidence before the Tribunal.  The Tribunal accepts the applicant is a credible witness and, on balance, accepts the oral evidence that she was not engaging in work in Australia whilst the holder of the Subclass 600 visa.

17. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(b) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Stavros Georgiadis
    Member