Truong (Migration)

[2023] AATA 1944

Truong (Migration) [2023] AATA 1944 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vinh Co Truong

REPRESENTATIVE:  Mrs Le Ha Uyen Nguyen

CASE NUMBER:  2216025

HOME AFFAIRS REFERENCE(S):          BCC2022/3644582

MEMBER:Melissa McAdam

DATE:8 May 2023

PLACE OF DECISION:  Sydney

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 08 May 2023 at 1:48pm

CATCHWORDS
MIGRATION – cancellation – Visitor (Class FA) visa – subclass 600 (Visa) – applicant was denied entry to Australia – no family business or other ties in Australia – Tribunal is not satisfied that the ground for cancellation in s 116(1)(g) exists – power to cancel the applicant’s visa does not arise – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 424AA
Migration Regulations 1994, r 2.43,

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 October 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Visitor (Class FA) Subclass 600 (Visitor) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in relation to the review.

3. The delegate cancelled the visa under s 116(1)(g), reg 2.43(1)(ja), on the basis that he was not satisfied the applicant was intending to visit Australia temporarily “only for tourism purposes”. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Visa application

4. The following is a summary of the information provided by the applicant in his visa application:

   a.He is a citizen of Vietnam.  He was born in 1985 in Lam Dong in Vietnam.  He lives in Dong Nai province in Vietnam.

   b.He wants to travel to Australia by himself for tourism during his annual leave to explore new things and traditions in Australia.  He plans to arrive on 15 October 2022 and depart on 30 October 2022.

   c.He has not previously travelled to Australia.

   d.He has a son born in 2011.

   e.He has been employed as an executive sous chef for a company since May 2022 in Ninh Hai District in Ninh Thuan province.

   f.He will fund his own trip to Australia.

5. With the application he provided copies of the following documents:

   -Accommodation booking confirmation at Sydney YHA.

   -His Vietnamese National ID Card.

   -A letter in his name in the Vietnamese language.

   -A contract of employment showing him employed as a sous chef at Amanoi Resort in Vietnam for 48 hours a week and a monthly salary of 45,000,000 VND.

   -His flight booking confirmation.

   -Documents in the Vietnamese language.

   -The applicant’s leave application form.

   -The applicant’s expired Vietnamese passport showing travel to the Maldives, China, the UAE, Malaysia, Georgia and Greece; and that he had residence in Dubai as a ‘foreign food cook’.

   -The applicant’s current Vietnamese passport issued by the Vietnamese Embassy in Dubai, showing travel between the UAE and Vietnam and travel to the Philippines.

   -An itinerary showing his tourism plans in Sydney.

   -His Vietnamese bank account statement showing a closing balance of 136.135.473 VND in late August 2022.

   -Another bank account statement showing an amount of 100,000,000 VND.

   -His Vietnamese Household Book in the Vietnamese language. 

6. The department granted the applicant the Visitor visa on 21 October 2022. It was valid until 21 October 2025 and allowed multiple entries of not more than three months each.

   Visa Cancellation

7. The applicant arrived at Sydney International Airport on 29 October 2022.

8. He had a completed Incoming Passenger Card (IPC) stating his occupation as chef, that he intended to stay in Australia for 30 days and that he would be residing at 15 Dan Crescent Lansvale with Ben Nguyen.

9. A Notice of Intention to Cancel the applicant’s Visitor visa (NOICC) was issued to the applicant at the airport. In the NOICC it is written:

   You arrived at Sydney International Airport on 29 October 2022, the holder of FA600 Visa. On arrival you presented a Incoming Passenger Card (IPC) declaring your intention to stay in Australia for 30 days. However during interview you stated that you did not have a return ticket.
   You claim to have $700 USD and $150 AUD and access to no further funds.

   Furthermore you have provided inconsistent information on your visa application and during the interview such as:

   On your visa application you declared you were employed. However during the interview you stated that you did not have a job to return to.

   On your Visa Application you claimed to have no on-shore contact, however during the interview you stated you did.

   The above information raises concerns about your claims to be a genuine visitor for tourism purpose therefore grounds appear to exist under s116 (1)(g) Reg 2.43(1)(ja) which states in the case of the holder of a Subclass 600 (Visitor) visa in the Frequent Traveller stream - that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a tourist or to engage in a business visitor activity.

10. The applicant was interviewed at the airport by an Australian Border Force Officer on 29 October 2022, using the services of a telephone interpreter.  The interview was recorded. The following is a summary of the information in the recording:

    a.The delegate explained that grounds appeared to exist to cancel the applicant’s visa under s116(1)(g).

    b.The delegate put to the applicant that he claimed to have $ USD 750 and $ AUD 150 and access to no further funds. The delegate put to the applicant that in his visa application he claimed to be employed but stated at his interview that he did not have a job to return to; and that in his visa application he stated to have no onshore contact but stated in his interview that he did.

    c.The applicant responded that he could get his friend to buy him a return ticket straight away. He would also get his wife to send him money. The purpose of the visa is definitely for a visit. He saw on the tv how beautiful and friendly Australia is and wanted to come for a visit.

    d.He worked in a hotel but it was not suitable for him and this is why he quit his job, not for the visa.

    e.He wants the opportunity to visit Australia.

    f.It is the first time he has travelled to Australia. He will learn for the next visit to bring more money with him.

11. The applicant was interviewed again at the airport a short time later by the same Australian Border Force Officer on 29 October 2022, using the services of a telephone interpreter.  This interview was recorded. The following is a summary of the information in the recording:

    a.The delegate stated he was satisfied a ground existed for the cancellation of the applicant’s visa.

12. There are references in the above interviews to a further earlier interview but there is no recording of it or other record of it in the Department’s file provided to the Tribunal.

13. The delegate was satisfied that there were grounds for cancellation of the visa under s 116(1)(g) as per regulation 2.43(1)(ja). In the delegate’s reasons in the record of decision it is written:

    The visa holder stated that it is their first time travelling to visit Australia, they did not buy a return ticket or bring enough money but they can get their friend to buy a return ticket and that their wife may be able to send them money.

    I accept the visa holder has not purchased a return ticket or have sufficient funds and that their friend may buy them a return ticket and wife may send them money.

    However the visa holder does not have sufficient funds to support their stay of 30 days and purchase a return ticket and stated he had no access to further funds.

    The visa holder stated that they worked at a hotel.

    I accept that the visa holder worked at a hotel. However during interview the visa holder stated that they had quit and did not have a job to return to.

    After considering the evidence and the visa holder’s response, I am satisfied the visa holder is not intending to visit Australia temporarily only for tourism purposes, for which the visa was granted.

    Therefore I am satisfied a ground exists to cancel the visa under s 116(1)(g) reg 2.43(1)(ja).

14. The delegate was satisfied the grounds for cancelling the visa outweighed the reasons for not cancelling it and therefore decided to cancel the visa at 4:06 pm on 29 October 2022.

15. The applicant was detained at 4:30 pm and taken to the Villawood Immigration Detention Facility while arrangements were made for a removal flight from Australia.

    Information to the Tribunal

16. On 16 November 2022 the applicant’s representative wrote to the Tribunal that the applicant’s visa “was cancelled at the Sydney airport because he incorrectly understood question 4 at the declaration form, therefore he answered it wrong.”

17. On 21 February 2023 the Tribunal wrote to the applicant and his representative inviting the applicant to a hearing scheduled for 26 April 2023.

18. On the afternoon of 24 April 2023 the applicant’s representative emailed the Tribunal with the following message:

    “Referring to the above matter, we apologised firstly that we do not know the applicant directly, as we went to another agent. We have forwarded all AAT emails to that agent but we were not aware that the agent did not forward those emails to him. Thus until today he was not aware that the hearing was in 2 days. I only have his phone number today and will try to call him regarding the hearing in 2 days. He was not aware and did not provide a response to those outstanding documents required by the court. Also he just changed jobs. His old job paid him $40,000,000 Viet Nam Dong per month. This new job as a Chef in a different restaurant pays him $75,000,000 per month.

    He asked the court to grant him an extension to the hearing for another 1 to 2 weeks so that he can respond to those outstanding documents as per the Invitation to respond to the court hearing.”

19. On the same afternoon the Tribunal responded to the applicant’s representative requesting further details of the ‘agent’ she had referred to so that the Tribunal could properly consider her postponement request, and drawing her attention to the Tribunal’s Practice Directions.

20. Later that afternoon the representative replied by email with the following message:

    “Sorry your member. The agent is offshore and i dont want them to get in trouble. Thus you can punish me and not them please. Thank you so much.”

    Pre-Hearing Submissions

21. On 25 April 2023 the applicant’s representative submitted the following documents to the Tribunal:

    -The applicant’s response to hearing form stating that he will try to attend the scheduled hearing.

    -The applicant’s payslips.

    -The applicant’ employment contract.

    -The applicant’s marriage certificate.

    -The applicant’s Hong Kong visa.

    -The applicant’s bank statement.

    -The applicant’s Leave application form for the period 9 May 2023 to 14 May 2023.

    -The applicant’s child’s Birth Certificate showing his birth date as 5 December 2022.

    -A letter from the Chair of the Organising Committee of the Hong Kong International Culinary Classic, dated 28 March 2023, inviting the applicant to participate as a judge on the judging panel for the event.

    -A certificate recognising the applicant as a certified continental judge in culinary arts and hot kitchen from the World Association of Chefs Societies.

    -A Land Title Certificate in the applicant’s name for a parcel of property in Vietnam.

    -Photographs of the applicant with his wife and child.

    -Social media posts regarding the applicant’s work as a chef and an international judge.

    -The applicant’s expired passport.

22. The applicant’s representative also submitted a photograph of a one page submission in which the following is written:

    “My client Vinh Co TRUONG would like to review the decision to cancel a Subclass 600 (Visitor) visa.

    At the airport because his English is not too good, he misunderstood the questions that were put to him. He misunderstood the Vietnamese interpreter.

    Because he has never been to Australia, he is not sure whether he can withdraw money from the ATM by using his Vietnamese bank card. That is why he said his wife will send him the money when he needs it.

    He have been in Maldives, China, Malaysia, United Arab Emirates (Dubai), Thailand etc., he has a good travel history (please refer to his passport) and got visa approved for Macao and Schengen but because he cannot take leave from work thus he did not go.

    He got invited to Hong Kong to be a Judge for Chef competition (please refer to the supporting document).

    He has no intention to stay long in Australia because he married with wife and kid only a couple months old. His salary in Vietnam now is around 75,000,000 Viet Nam dong compared to his old job (please refer to the supporting documents). With that income is more than enough for he, his wife and kid to live a comfortable life. It is enough for them to hire a servant, monthly salary of servant in Vietnam is around 3,000,000 per month. He can live a very comfortable life with theatre salary of 75,000,000 Vietnam Nam dong in Viet Nam.

    My family members, stable good pay job are my intention to return home. I like my country, I have everything there and why would I come to Australia on a Permanent basis; it doesn't make any sense.”

23. The representative set out the following travel history details for the applicant:

    Thailand: 1-6 Sep 2015
    China: 12-20 Jul 2017
    Malaysia : 22 Jul-01 Aug 2017; 15-18 Sep 2017; 23-24 Jul 2018
    United Arab Emirates (Dubai): 15-17 Dec 2018, 30 Jun 2019 - 24 Jul 2019
    Georgia: 21 Jul - 01 Aug 2021
    Philippines: 3-8 Aug 2022
    Went to Maldives: 2014, 2015, 2016, 2017, 2018, Oct 2022

    Tribunal Hearing

24. The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The following is a submission of the information provided by the applicant at the hearing:

    a.The applicant located his representative in his review application by asking his friends and wife. He heard a friend mention there was a Vietnamese lady who could help him.  He has some friends in Vietnam and he read online about cases like his.

    b.The friend was a male friend called Nam.  The applicant asked friends and the applicant’s wife helped introduce the applicant to Nam.  His wife read online, he doesn’t know how she located him.

    c.The applicant came to Australia to visit for a few days then leave.  He wanted to refresh himself from work and then go back. He did not know anyone in Australia.  He intended to stay in a hotel in Central Sydney.

    d.The Tribunal asked the applicant how he had been communicating with his representative. He responded he didn’t contact her, he contacted his wife. 

    e.The Tribunal asked who lodged his review application. The applicant’s representative responded that she did.  The Tribunal asked the representative how she obtained his instructions and the representative responded that she knows a girl who referred the applicant to her.  The girl has a lot of friends in Vietnam.  She is a marketing agent who looks for clients and then refers them to a lawyer.  She is in Vietnam.  The representative knows her through Face Book. Her name is Kim.

    f.The Tribunal asked the representative if she had any contact with the applicant when she lodged his review application.  The representative responded that she got authorisation from the applicant’s wife and it was sent to the representative. She is his wife so it is okay.

    g.The representative then stated she forgot something. She did call the applicant and asked him if he authorised her to lodge his review application. She didn’t call the applicant.  The ‘girl’ called the applicant’s wife and then the representative spoke to the applicant on a three way line. The call was on Viber.  The representative has not contacted the applicant since to get instructions because his wife had called and the representative is too busy with work.

    h.The applicant’s representative explained that her submission was written by her assistant as she herself was very busy and very tired. That is why some of the submission is written in the first person.  Her assistant was the person who interviewed the applicant and drafted what he told her.

    i.The applicant’s representative has spoken directly to the applicant herself and has done so over the course of the year. She calls him using Viber. The Tribunal asked her why then she had then written in her request for a hearing postponement that she had not been able to contact the applicant because an agent was handling the communication and had failed to pass on her messages to the applicant.  The representative responded that it was because her client had asked her to try for a postponement because he had work on the scheduled hearing day.  The Tribunal asked the representative if she was stating there was no agent and she responded no there was a girl on Face Book.  The girl was assisting people to get help.  She was in Vietnam. She may not be in Vietnam.  The representative would communicate with her over Face Book.  She would call the girl using Viber.

    j.The applicant stated he has a wife and child. His child was born on 5 December 2022. At the time he came to Australia last year she was about seven months pregnant.

    k.The applicant did not book a return flight when he arranged his travel to Australia because he was waiting for his employer to approve his leave and was unsure how long he would remain in Australia. He thought if he did not like it here he would return sooner.

    l.He had planned to stay in Australia for ten to fifteen days.  His visa was granted late so he was waiting for his leave to be extended.  He had arranged leave for two weeks from 15 to 30 October but the visa was not granted until 26 October.

    m.He did not book a return flight because he hadn’t decided how long he would stay in Australia, he thought it would be between five and ten days.

    n.The Tribunal asked the applicant when he booked his flight and he responded he did not know as his wife did it.  She will have to look up when this was.

    o.He was kept at the airport for half a day and then taken to a place with guards where he was kept for five or six days. He was not released before he was taken back to the airport and put on a flight back to Vietnam.

    p.The Tribunal asked the applicant who lives at 15 Dan Crescent in Lansvale. The applicant responded a friend who is Vietnamese.   The person is not a friend, he is just a person who could help the applicant when the applicant got to Australia. The person is Nhan. The applicant asked a friend in Vietnam if anyone would help him in Australia. The Tribunal asked the applicant what help he thought he might need here and he responded that if he goes to a country and there are Vietnam people in the country the applicant can ask them for help if he has trouble. The Tribunal asked the applicant what trouble he expected and he responded he didn’t expect anything, he just wanted to visit Australia for a few days.

    q.The Tribunal asked the applicant why he had written that he would live at 15 Dan Crescent, Lansvale and he responded that maybe he didn’t understand, his friend just gave the applicant an address.  He didn’t know that person.  The Tribunal asked if the applicant had the person’s phone number and the applicant responded no.  The Tribunal put to the applicant that therefore if he had trouble, he intended to just go to the person’s address and he responded yes.

    r.The Tribunal asked the applicant who ‘Ben Nguyen’ is and he responded that is Nhan.  Ben is probably his English name but Vietnamese know him as Nhan.  The Tribunal asked the applicant how he knew Nhan was also Ben Nguyen and he responded his friend mentioned Ben Nguyen and then Nhan.  The Tribunal asked what Nhan did in Australia and the applicant responded he did not know, his friend in Vietnam told the applicant he could contact him.  He would see his friend when he worked sometimes. His friend lives in Ho Chi Minh city and his name is Nan.

    s.The Tribunal asked the applicant if he ever contacted Nhan in Australia and he responded maybe no, but when they kept him in detention he did call Nhan.  He told Nhan he had come to Australia and they kept him here. He asked Nhan to contact his friend in Vietnam and to let his wife know.  The friend in Vietnam he wanted contacted was Nan, the applicant had no one else to contact in Vietnam. The Tribunal put to him he had his wife there and the applicant responded they did not let him use a phone.

    t.The Tribunal asked how he called Nhan to ask him to call Nan and his wife and he responded that his phone could not be used and he asked people in detention so he could contact wife and friend. He borrowed a phone in detention, there was a landline phone. He used this to call Nhan and asked him to call Nan. He doesn’t know why he didn’t ask Nhan to call his wife it was because he just got into trouble and he just had the details to contact Nhan.  The Tribunal asked the applicant how he contacted Nhan when he didn’t have Nhan’s phone number. The applicant responded there was a number saved on his phone, but he didn’t have his phone so how could he call him.  He had Nhan’s number on his phone. After the interview they took him before his transfer to a room and they returned his phone and he used the officer’s phone to make a call. He used the landline in the next room. He rang Nhan. Nhan did not give the applicant any other help he just said he would let the applicant’s family know.

    u.The applicant will provide Nhan’s phone number to the Tribunal after the hearing. It is on his work phone at work.

    v.The Tribunal asked the applicant why he stated he was waiting for his leave from work to be approved as a reason for not booking a return flight when he had resigned from his work.  The applicant responded he asked for leave and had just recently resigned from work. He resigned in the same month. He did not have another job lined up but he had been offered a few jobs that he was thinking about. He left his former job because it was not good or a suitable environment.

    w.He chose that time to travel to Australia because his work was so stressful and he wanted to come to Australia for a few days and relax. He planned to do sightseeing here. He cannot say what sights because his English is not good.

    x.He has travelled to several other countries. He has judged cooking competitions in them and appeared on cooking shows. He worked for several years in the Maldives. Sometimes he was just a tourist in a foreign country.

    y.The Tribunal put to the applicant under s 424AA of the Act that it was recorded in his airport interview that in his baggage was a uniform and work equipment.  The applicant responded that his friend in Vietnam asked him to give some items and something to his friend here. 

    z.His friend Nam asked him to bring the items to his friend in Australia. The friend in Australia was Nhan.  The applicant does not know why Nhan wanted the items. The applicant does not know if Nhan has a restaurant.  The items were clothes. He does not know what they were because they were in a suitcase and his wife checked. The Tribunal asked the applicant if he had brought a suitcase to Australia with contents unknown to him and he responded that he was busy with work and his wife looked for him.  The Tribunal asked him if it was not his suitcase and he responded that the suitcase was his and they brought items to his place and his wife put them in his case.  He never saw them but his wife told him they were items like clothes and a type of machine. The applicant has a stable job and good salary in Vietnam.  The Tribunal put to the applicant that he had just quit his job in Vietnam when he travelled to Australia.  He responded he was going to start a new job, his old job was so stressful.

    aa.He would like to visit Australia. He tried but he was stopped. If his visa is cancelled it will not be good for him. He has a high salary in Vietnam and no need to hide in Australia. He earns $3,500 per month in Vietnam.  There is no reason for him not to live in Vietnam. His salary is good and his wife and child are there.

    bb.He has no family business or other ties in Australia.

    cc.He is an international cooking judge in many countries. Last time he met an Australian chef who said he could invite the applicant to Australia to judge cooking so it will affect his career if his visa is cancelled.

    dd.He lives comfortably in Vietnam and has a good job so there is no reason for him to hide or do something wrong.

    ee.He will provide Nhan’s contact details including his phone number to the Tribunal within a week.

    ff.He has an invitation to judge a competition in Hong Kong. He wants to keep a good travel history so he can meet different chefs around the world. He is a chef who participates in a lot of competitions and people invite him to judge and he does a lot of video shows.  If his visa is cancelled he will not be able to travel to other countries,

    Post Hearing Submissions

1. On 2 May 2023 the applicant’s wife emailed the Tribunal with a written statement about the applicant plus photographs of them together and of the applicant in his work environment. She also included a mobile phone number for Nhan.

   CONSIDERATION OF CLAIMS AND EVIDENCE

2. 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). 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?

3. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(ja) is relevant.

4. Regulation 2.43(1)(ja) states:

   (ja)  in the case of the holder of a Subclass 600 (Visitor) visa in the Frequent Traveller stream--that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit, or remain in, Australia as a tourist or to engage in a business visitor activity;

5. At the time the applicant lodged his visa application, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. These streams are Sponsored Family, Tourist, Business Visitor, Approved Destination Status, and Frequent Traveller.

6. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Tourist stream. This is evidenced clearly on his visa application form. According to the visa grant notice to the applicant from the department on 21 October 2022, the applicant was granted a Visitor visa in the Tourist stream. Therefore, the visa held by the applicant which was cancelled by the Department was a Visitor visa in the Tourist stream.

7. Regulation 2.43(1)(ja) specifically refers to Visitor visas in the ‘Frequent Traveller’ stream only. It therefore does not apply to the visa held by the applicant, namely a Visitor visa in the Tourist stream. Therefore the ground for cancellation under s 116(1)(g) is not made out as far as it relates to the prescribed ground set out in r 2.43(1)(ja).

8. The Tribunal notes that it may be possible for it to consider cancellation under another ground prescribed under r 2.43.[1] However the lawful scope of such a consideration is not yet fully settled. Further the applicant would require a full opportunity to address the issues of any other prescribed grounds which may apply to him. The Tribunal notes that the only other prescribed ground which may apply to the applicant is r 2.43(1)(j), which applies to Visitor visas in the Tourist stream. However in effect it permits a ‘visit’ to Australia for any purpose other than a purpose related to business or medical treatment. This is quite broad with a likelihood that the applicant had a purpose to visit Australia which, even if it did partially relate to cooking or judging, would not fall foul of the prescribed ground in r 2.43(1)(j).

   [1] See e.g. Krummrey v MIAC (2005) 147 FCR 557

9. In any event the Tribunal notes that the applicant was denied entry to Australia, detained for a few days, then expelled back to Vietnam. Given the ground prescribed for cancelling the applicant’s visa in r 2.43(1)(ja) is not made out and that the applicant was not permitted to enter Australia, the Tribunal considers that its section 2A objectives, namely fairness, quickness and proportionality, warrant finally determining this matter under the prescribed ground used to cancel the applicant’s visa.

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

    DECISION

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

    Melissa McAdam
    Member