Tran (Migration)

[2021] AATA 2649

Tran (Migration) [2021] AATA 2649 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi My Loi Tran

CASE NUMBER:  1932425

HOME AFFAIRS REFERENCE(S):          01266936

MEMBER:Joseph Lindsay

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 600 (Visitor) visa.

Statement made on 1 June 2021 at 10:25am

CATCHWORDS
MIGRATION – cancellation – Visitor (Class FA) visa – subclass 600 (Visa) – breached visa condition 8101 (no work) – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 1.03, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 November 2019 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 (the Act).

2. The applicant attended an audio hearing with the Tribunal on 27 May 2021 to give evidence and present arguments. The applicant’s husband and daughter were witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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) 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.

   Does the ground for cancellation exist?

5. 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 (no work) of Schedule 8 to the Migration Regulations 1994 (the Regulations) attached to the applicant’s visa. This condition requires the applicant not to work in Australia.

6. The Tribunal put to the applicant that she had given a copy of the delegate’s decision to the Tribunal and the Tribunal had received written submissions on 24 May 2021.

7. The Tribunal put to the applicant that the delegate’s decision indicated that:

   a.on 7 November 2019, Australian Border Force (ABF) conducted an employer visit to Hung Vuong Saigon restaurant located at 128 Hopkins Street, Footscray, Victoria.

   b.ABF observed the applicant working in the kitchen, where she was observed wearing a hair net and handling food. 

   c. the applicant made admissions to commencing employment at the restaurant on 6 November 2019 and her duty manager also confirmed that she commenced employment at the restaurant on 6 November 2019.

   d.the applicant responded to the Notice of Intention to Consider Cancellation (NOICC), and in the response she denied that she had been working in the restaurant or that she had received any payment from her employer but, rather, she was gaining experience in the industry.  

8. In the decision, the delegate found that the applicant had worked at the Hung Vuong Saigon restaurant in Footscray on 6 November 2019 and 7 November 2019, and in doing so breached condition 8101 (no work) of her visitor visa.

9. With respect to the written submissions provided on 24 May 2021, the Tribunal notes that in the applicant’s statutory declaration dated 21 May 2021, she said that she was at the restaurant not to work but to instead “learn cooking skills as well as managing the restaurant.” The applicant also made admissions that she “went to Hung Vuong restaurant on 7/11/2019 to start learning from the kitchen operation to the front of house.”

10. In the hearing, the applicant made admissions that she was in the restaurant on 6 November 2019 and 7 November 2019, but that it was 7 November 2019 that she actually started in the kitchen. She made admissions that she was in the restaurant to learn cooking skills as well as managing the restaurant. She said that since 7 November 2019 she has not been getting experience in any other kitchens since that time or working in any respect.

11. When asked how long she had intended to gain experience in the restaurant, the applicant said that she came to Australia to look after her child, but that since she had free time she wanted to learn how a restaurant in Australia was managed so she could take those skills back with her to Vietnam and use those skills to run a restaurant in Vietnam. She said that prior to coming to Australia she had employment with a construction material company called “Anh Vu Minh”, but that since early 2018 she had also had a restaurant that served noodles. She said she ran the restaurant for about two years, and she indicated that the restaurant was economically viable. She said that her restaurant has since closed, and she has resigned from her employment with the construction material company.

12. The applicant maintained that she believed that there were no grounds to cancel her visa because she was not getting paid any money for her activities in the Hung Vuong Saigon restaurant.

13. The Tribunal has considered the evidence before the Tribunal. The Tribunal accepts that the applicant was in unpaid work at Hung Vuong restaurant on 7 November 2019. The Tribunal has had regard to the definition of “work” at r.1.03 of the Regulations that states “work means an activity that, in Australia, normally attracts remuneration.” However, in balancing the evidence, the Tribunal finds that work does not need to be paid to, nevertheless, be work. The Tribunal finds that unpaid work is work, as paid work is work. The Tribunal accepts that the applicant intended to gain skills and experience in her activities at Hung Vuong Saigon restaurant on 7 November 2019. Accordingly, the Tribunal is satisfied that the applicant’s activities at Hung Vuong Saigon restaurant on 7 November 2019 fall into the definition of “work” at r.1.03 of the Regulations.

14. The issue is that, in being granted the visa with condition 8101 attached to it, the applicant was not meant to work – whether it be paid or unpaid, or for any other reason at all. The Tribunal accepts that the applicant’s activities on 7 November 2019 did amount to work, and in doing so she breached condition 8101.

15. Accordingly, the Tribunal finds that there are grounds for cancelling the applicant’s visa under s.116(1)(b) of the Act.

16. 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

17. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. 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 circumstances in which the ground for cancellation arose

18. The Tribunal spoke to the applicant about the circumstances in which the ground for cancellation arose, that is, the fact that she was working in the restaurant on 7 November 2019. These circumstances, as accepted by the Tribunal, are detailed above.

19. The Tribunal asked the applicant whether she reasonably believed that, as the visa holder, she was required to comply with the conditions of the visa. In response the applicant indicated that she knew that she was required to abide by the conditions of the visa. The applicant said that she thought she could go to the restaurant to learn and she did not think that her actions could lead to her breaching her visa conditions.

20. When the Tribunal asked the applicant whether she had made any inquiries with her migration agent or the Department before undertaking the activities in the restaurant, she responded “No.”

21. In considering the above, the Tribunal accepts that these unfortunate circumstances have happened to the applicant. However, the Tribunal finds that the applicant knew that she was required to abide by the conditions of the visa. The Tribunal is not satisfied that the applicant took reasonable steps or made reasonable inquires with either her migration agent or the Department about whether her intended activities in the restaurant could potentially breach the conditions of the visa, in particular condition 8101. Accordingly, in regard to these circumstances, the Tribunal places high weight in favour of cancelling the visa.

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

22. The applicant said that her purpose in coming to Australia was to visit and take care of her daughter.

23. The Tribunal accepts that the applicant’s purpose in coming to Australia was to visit and take care of her daughter and gives this consideration some weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

24. The applicant appears to have abided by her other visa conditions. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. The Tribunal spoke to the applicant about the hardship that may be caused to her if her visitor visa was cancelled. In response, the applicant indicated that if her visa was cancelled it would be very difficult for her to come back to Australia to visit her daughter, and to see her graduate from university. The applicant she would be very emotionally disappointed.

26. The Tribunal accepts that the applicant would be very emotionally disappointed if her visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

27. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

28. The applicant does not have any dependants on her visa who would be affected if her visa was cancelled. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

29. The applicant indicated she is aware of the legal consequences of the cancellation of her visa, that she is aware of the three-year exclusion period as a consequence of her visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

30. The Tribunal accepts that the applicant will need to make her own arrangements to obtain a visa to lawfully remain onshore, and that if she does not do so, she will be in Australia unlawfully and may be liable to detention and removal if she chooses not to return to Vietnam.

31. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of her visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

32. The Tribunal places some weight on this information in the applicant’s favour.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

33. The Tribunal asked the applicant if she feared anyone or anything in returning to Vietnam. In response she indicated she had no fears if she went back to Vietnam. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

34. In respect to whether there were any other relevant matters she wished to discuss, the applicant indicated that when she came to Australia, she had already booked a return ticket. She said that she never thought to be in Australia to work or do anything that would violate her visa conditions. She said that she was concerned about the effect of the visa cancellation on her daughter, and whether it could emotionally and psychologically affect her.

35. The Tribunal received an oral submission from the representative asserting that the applicant’s activities were not work as defined in the Regulations. The representative asserted that the applicant did not intend to breach her visa conditions. The representative asserted that the current issues with COVID-19 created uncertainty about when the applicant could return to Vietnam. The representative asserted that the applicant was particularly concerned about the exclusion period, and the difficulties this would cause for the applicant if she wanted to return to Australia.

36. In consideration of the above, the Tribunal accepts that the applicant had booked a return flight and therefore may not have intended to stay in Australia. The Tribunal accepts that the applicant probably had not intended to violate her visa conditions, but that she had not taken reasonable steps to investigate whether such an activity could amount to a breach of her visa conditions, including condition 8101. The Tribunal accepts that there are currently issues with COVID-19 in Vietnam, and there is uncertainty about when the applicant could return to Vietnam. The Tribunal accepts that the applicant is concerned about the effect of the visa cancellation on her daughter, and whether it could emotionally and psychologically affect her. The Tribunal accepts that applicant was particularly concerned about the exclusion period, and the difficulties this would cause for the applicant if she wanted to return to Australia.

37. The Tribunal has some sympathy for the applicant’s circumstances and give these circumstances some weight against cancelling the visa.

    Conclusion

38. In weighing and balancing the overall circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 600 (Visitor) visa.

    Joseph Lindsay
    Member