Ali v Minister for Immigration, Local Government and Ethnic Affairs

She arrived in Australia on 16 November 1995, her visa permitting her to remain until 16 February 1996.

On 17 November 1995 she lodged an application for a Protection Visa Class AZ, this also being an application for an Associated Bridging Visa. Her passport shows that she was Bridging Visa A, Subclass 010 on 17 November 1995, 'nil' conditions under Schedule 8 of the 1994 Migration Regulations were imposed.

The application form for the Protection Visa stated that she was being assisted by Pricilla International Co P/l at an address in the Haymarket, New South Wales, and a migration agent number was provided. The applicant gave as her address for correspondence, PO Box K27, Haymarket, NSW 2000.

Following cancellation of her Class TR visa on 18 January 1996, the Applicant was detained at Villawood Detention Centre. She was released following the grant of a Bridging Visa E, subclass 050 on 23 January 1996 which enables her to remain in Australia 'until 28 days of notification of final decision'. The condition 'no work' was attached to this visa.

On 2 February 1996 the Department wrote to the Applicant at the address given, with a copy to the migration agent at the address given on the application form. This letter explained that the Applicant's application for a Protection Visa had been refused and attached reasons for this decision. It went on to explain that:

You have been granted a Bridging Visa A which allows you to remain in Australia lawfully for a period of 28 days from when you receive this letter. You are taken to have received this letter 7 days after the date of this letter. If you apply for a review within this 28 day period, your Bridging Visa will be valid until 28 days after a final decision is made on your application.

You have permission to work in Australia for the period that your Bridging Visa is valid.

You may apply to the Refugee Review Tribunal (RRT) for review of the refusal to grant you a Protection Visa (866).

The Departmental file shows that the Applicant was identified by compliance officers in a visit to 1 Blackburn Street, Surry Hills, premises known to house a brothel, on 18 January 1996. At 22.05hrs she was told that working was in breach of her conditions and that the compliance officer intended to consider cancellation of her visa. She was informed that her Bridging Visa A was not in force. She was given 10 minutes to respond.

The cancellation paperwork was complete at 22.40hrs. The reasons given on the Decision Record by the Department were 'Entered Australia on a visitor visa with intention to work. Visitor visa not BVA, is valid (in effect) so work breach has occurred. I consider that this breach outweighs reasons given for breaching conditions'. The reason given by the Applicant for not cancelling this visa was that she thought the Bridging Visa A which gave her permission to work was valid and she was told by an agent in Thailand that she (and the other two Thai women identified at this brothel), 'would work legally in Australia'.

The issue to be decided by the Tribunal is whether or not the Applicant has breached a condition of her Class TR visa and, if so, are there reasons for the Tribunal to exercise its discretion not to cancel the visitor's visa.

The Tribunal received a submission from the Applicant's migration agent dated 6 February 1996 stating that the Applicant was told by an agent in Thailand that she 'could' (rather than 'would') work if necessary, she ran short of funds sometime after she arrived and started working, she does not read English and so could not realise the significance of commencing work. The agent attached her statement which had been made in support of her application for a Protection Visa and requested that this be taken into account in the Tribunal's review. In summary this statement described problems that her father had had with 'gangsters' when he owned restaurants in and outside Bangkok, culminating with her father being put in jail in 1994. It was difficult for her mother to get jobs and her mother asked the Applicant to go overseas, and she came to Australia with the help of money from her grandmother and 'some good friends'.

In response to a request from the Tribunal, the Australian Embassy in Thailand faxed a copy of the Applicant's application form for a visitor visa, dated 2 November 1995. The box giving reason for visit as 'For tourism - holidaying, sightseeing, recreational, sport, or study, visiting friends or relatives, etc' has been ticked. The Applicant described her current occupation as 'employee' at Pro-Tech Engineering Construction Co Limited of CTI Plaza, 7th Floor 1000/31, Soi Sukhumvit 55, Klongton, Klongtei, Bangkok.

The application form had not been signed and when the Tribunal queried the Embassy about this, was told it was one of many forms submitted together by a tourist agent. It could not be guaranteed that every form was signed by the applicant concerned.

The application form had another form attached to it which set out the conditions for a visitor visa, including the condition 'you must NOT undertake employment while in Australia'. The application form and attached conditions were in both English and Thai.

On 29 February 1996, the Tribunal took sworn evidence from the Applicant, and Ms Christine Grimm from Compliance Branch of the Department at The Rocks in Sydney. The Applicant's two Migration Agents attended the hearing. The Tribunal was assisted by a qualified Thai interpreter.

In her sworn evidence the Applicant reiterated the claims in the statement attached to her Protection Visa. She explained that she had obtained her visitor's visa with the assistance of a woman whose nickname was Orm and whose family name was Sukira. She had been introduced to this woman by a friend. She had applied for the visa as she could not stay in Thailand due to her family problems. She had applied to come to Australia because she heard that the Australian Government was 'very nice' and welcomed people. She had heard about people taking refuge in Australia.

She told the Tribunal that she was not working at the time of the application and that she had only ever worked in her father's restaurant. She was shown the facsimile copy of her application and asked if she had been working at the time of her application or had ever worked as an employee of the Protech Engineering Construction Company Limited. She said that she had not and that this information was filled in by the person assisting her with the application.

When she arrived in Australia she had 40,000 Baht but had not really known what she wanted to do. A friend picked her up from the airport. This woman's nickname was Horm, her real name was given by the Applicant as Miss Garnda Kumngern.

Ms Kumngern took the Applicant to her address in Goulburn Street, Sydney, where the Applicant was residing at the time of the hearing. Ms Kumngern worked at the 'shop' at 1 Blackburn Street, Surry Hills.

The Applicant said that she told Ms Kumngern her problems in Thailand. Ms Kumngern told the Applicant that if she would like to stay here and work she could help her.

Shortly after she arrived Ms Kumngern took the Applicant's passport. The Applicant said she did not know how Ms Kumngern organised the visa, she did not pay her any money, Ms Kumngern simply returned with the second visa in the passport. The Applicant was shown her application for a Protection Visa on the Departmental file and asked if the Thai signature appearing as the Applicant's signature was her own. The Applicant said that this was not her signature and in response to a request from the Tribunal signed her name in Thai script twice.

The Applicant said that she had not worked until 18 January 1996. Until that date she had spent her time walking around and sightseeing. However, she was running short of money and had decided to work in the shop in Blackburn Street.

This was a shop where women provided services. She was charged $50.00 for the rent of the room for one night. She had performed two massages on men before she was arrested. She was to be paid $100.00 for each massage. She received the money before taking men up to the room but passed it on to the receptionist. She was given this money some time later with the $50.00 deducted for the rent of the room.

The Applicant said that she only had $100.00 left when she started working. She had not done this sort of work before but had no choice as she did not have any other job and was so short of money. She had intended to continue working in the shop but was prevented from doing so by her arrest.

She was arrested with a number of other women, two from Thailand. She said she didn't know these other two Thai women, they were working there.

The Applicant said that when she was arrested she was given five minutes to think and give them reasons why her visa should not be cancelled. She said she was told that her tourist visa had not yet expired and her new visa had not yet come into effect. She said she was told something like this but she did not really understand. The Applicant said that she did not know whether the visa she had obtained in Thailand or the one that she had obtained in Australia allowed her to work.

The Tribunal asked the Applicant if, when she obtained her visa in Thailand, she was told she was not allowed to work in Australia. She said no-one had said this to her but she did not have any intention to work when she had obtained this visa. She said that nobody had told her in Thailand that she would be able to work in Australia.

The Applicant said that when her friend got her second visa in Australia she did not tell her that she was allowed to work. The Applicant said that she didn't know anything.

The Applicant said that when she was given five minutes to consider why her visa should not be cancelled, she had not said anything at all.

She told the Tribunal that she had not said that she had been told by an agent in Thailand that she could work legally in Australia. She said that she did not answer a word. She just sat down with three other people.

The Applicant told the Tribunal that she had not said that she had worked as a prostitute before as she had not done that sort of work before.

The Applicant confirmed to the Tribunal that when she obtained her visa in Thailand and when she obtained her second visa in Australia she did not know whether or not she was allowed to work. However, she understands now that the visa she obtained in Thailand does not allow her to work. She had only started working for survival as she only had $100.00 left.

After the Applicant was released from Villawood she has not worked, as an interpreter explained to her that she was not permitted to work on her Bridging Visa E. A Malaysian friend living in the same house was supporting her. The Applicant said that she herself only had $20.00 left. Her Malaysian friend also works at 1 Blackburn Street, Surry Hills. The Applicant said that she did not have any relatives in Australia, just 'friends'.

The Tribunal asked the Applicant, given that the Applicant had already explained that she had been working, why the Tribunal should not cancel her visa. The Applicant said she did not want to go back to Thailand as she wished to live in Australia. The Tribunal explained that the tourist visa was not a visa which allowed her to live in Australia but only to visit Australia. The Tribunal asked again why this visa should not be cancelled. The Applicant repeated that she could not go back to Thailand and she wished to live here.

In her sworn evidence, Ms Christine Grimm explained to the Tribunal that she was the officer who had cancelled the Applicant's visa. Ms Grimm explained that she entered 1 Blackburn Street, Surry Hills shortly after the team leader. She spoke to three women with a Thai interpreter, as other women were being spoken to by other officers. She spoke to them in a separate room where they all told her that they were working at 1 Blackburn Street and that they had started working there within a few days of their arrival in Australia. They all said that they were working legally as an agent in Thailand had told them they could work in Australia and they had applied for work visas when they arrived.

Ms Grimm said that although she could not remember specifically what Ms Boonthong had said to her, she had asked each woman separately if the above information applied to them and she asked each woman separately why their visa should not be cancelled. When asked why her visa should not be cancelled Ms Boonthong told Ms Grimm that she thought she was working legally in Australia. Ms Grimm also thought that Ms Boonthong had told her that she had paid a lot of money to come to Australia.

The Applicant told the Tribunal that she had remembered seeing Ms Grimm at 1 Blackburn Street, Surry Hills on the night of 18 January 1996. There were many people, both men and women, all talking loudly and asking questions. Three Thai women, including herself, were arrested. They all sat down on the sofa and Ms Grimm talked to them with the assistance of a Thai woman who was acting as interpreter. The Applicant said that Ms Grimm did not ask questions of each woman, one at a time, but instead asked why they had come to Australia. The Applicant said she did not answer, only her friend Lucky answered. Lucky knows a bit of English and kept talking and talking but the Applicant said she did not know what they were talking about. The Applicant said that she could only remember saying her name. They mentioned something about an agent but she did not know about this. It was her first day at work and she had not asked anyone else what was going on.

In reply to questions from the Tribunal, the Applicant denied that she had told Ms Grimm that she had started to work a few days after she arrived in Australia, that she thought that she could work legally in Australia, that an agent in Thailand had told her she could work in Australia and that she had paid money to get a visa to work here.

The Tribunal asked the Applicant's Migration Agent if it was his client's intention to appeal the decision refusing her Protection Visa which was made on 2 February 1996. Mr Lee explained that he was not aware that a decision had been made and the Applicant said that she was not aware that there had been a decision. Mr Lee explained that he had only been working for his client for one week and he indicated to the Tribunal that he would be recommending to his client that she applied to the Refugee Review Tribunal for a review of this decision.

The Tribunal was informed by the Refugee Review Tribunal on 18 March 1995 that the Applicant had lodged an application for a review of the decision not to grant her a Protection Visa on 6 March 1996

While there are a number of contradictions in the evidence in this case, there is no dispute that the Applicant was working on the evening of 18 January 1996. The Tribunal finds that the

Applicant worked in a brothel on the evening of 18 January 1996, this was work which is normally paid work in Australia, and she received pay for this work. Further, the Tribunal finds that she intended, if she had not been arrested, to continue working in this brothel. The Tribunal therefore finds that the Applicant has not complied with the 'no work' condition of her tourist visa.

The Tribunal finds that an application was made on the Applicant's behalf for a visitor visa. In this application form, it was indicated that her reasons for visiting Australia were related to tourist activities. However, her oral evidence is that she applied for this visa in order to leave Thailand as she had family problems there and no job, and specifically, to come to Australia as she had heard that people could take refuge here. From this evidence the Tribunal concludes that her intention was to attempt to remain in Australia permanently rather than visiting temporarily. The Tribunal finds that this application form also provided false information about the Applicant's employment status and employer. While this form was put in on her behalf and not signed by her, she must take responsibility for the information which is contained in this form. Providing false information on this form could be a possible reason for cancellation of her visa under Section 109 of the Migration Act 1958.

The Applicant applied for a Protection Visa shortly after her arrival in Australia and lodged an application with the Refugee Review Tribunal on 6 March 1996 for the review of the decision not to grant her this visa. As a result of these actions the Tribunal finds that the Applicant wishes to remain and live in Australia. Therefore she does not intend to make a genuine visit to Australia which means that the circumstances which permitted the grant of a visitor visa no longer exist.

The Applicant was issued with a subclass 010 - Bridging Visa A on 17 November 1995. The Visa in her passport stated that this was granted on 17 November 1995. The Regulations provide that a subclass 010 - Bridging Visa A comes into effect '(i) on grant; or (ii) when the substantive visa (if any) held by the holder ceases' (010.511). The Department has stated that this Bridging Visa A which had 'Nil' conditions, did not come into effect until her tourist visa ceased on 15 February 1996. In her evidence to the Tribunal, the Applicant has not argued that she thought that her Bridging Visa A came into effect when it was granted and allowed her to work legally in Australia. Instead, she has said that she did not know whether she was

allowed to work or not, when holding either the visa she received in Thailand or the visa she received in Australia. Under the circumstances, the Tribunal considers that the granting of the Bridging Visa A is not a reason to be used for not cancelling her Class TR visa.

From the Applicant's evidence, the Tribunal finds that she has no strong ties with Australia. She has no family here and only acquaintances who also work at the brothel where she was working.

In relation to her co-operation with the Department, there is conflicting evidence. The Department maintained that the Applicant told an officer the night she was arrested that she had come to Australia to work, had been told by an agent in Thailand, to whom she paid money, that she would be able to work here legally and had started working in the brothel several days after she arrived in Australia. Ms Boonthong denies this saying that she only gave her name to the officer concerned on that evening. The Tribunal makes no findings here but notes that it would have been preferable, on the evening of 18 January, to interview each of the three Thai women separately, in a room by themselves in the absence of the other two women and any other potential witnesses. The Tribunal also considers that a longer period than 5-10 minutes should have been given to the women to provide reasons that their visas should not have been cancelled.

In the light of the above, the Tribunal does not intend to exercise its discretion not to cancel the Applicant's Class TR visa.

The Tribunal affirms the decision that the Applicant's short stay (visitor) (Class TR) visa should be cancelled.