Ahmed v Minister for Immigration

[2008] FMCA 811

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AHMED & ORS v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 811

MIGRATION – Migration Review Tribunal – study leave – half average salary paid – benefits and service accrued – whether financial support.

Industrial Relations Act, 1979 (WA), s.85
Migration Act, 1958 (Cth) ss.474(1) and 476(1) and (2)
Migration Regulations 1994 (Cth) reg 139.325, item 5010

Craig v South Australia (1995) 184 CLR 163
Isahak v Minister for Immigration & Anor [2008] FMCA 613
Minister for Immigration and Multicultural Affairs & Ors v Yusuf & Ors (2001) 206 CLR 323; [2001] HCA 30
Ndungu v Minister for Immigration & Anor (2007) 213 FLR 123; [2007] FMCA 217
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Shine; ex parte Shine [1892] 1 QB 522
The Totalisator Agency Board v Fisher (1997) 77 WAIG 1889

Applicants: BEGUM ROWSHON AHMED, ABU NAIM MD SALEH, FERDOUS ARA BEGUM AND ANTARA LABIBA NAIM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: PEG 173 of 2007

Judgment of: Lucev FM

Hearing date: 30 January 2008

Date of Last Submission: 30 January 2008

Delivered at: Perth

Delivered on: 30 June 2008

REPRESENTATION

Counsel for the Applicant: Mr P. Mugliston

Solicitors for the Applicant: Shahid Shakur

Counsel for the First Respondent: Mr R. L. Hooker

Solicitors for the first Respondent: Australian Government Solicitor

ORDERS

1. That the application be upheld on grounds 2, 3, 4, 6, 7, 8 and 9.

2. That a writ of certiorari issue directing the Second Respondent to quash the decision made by it in relation to the Applicants and handed down on 29 June 2007.

3. That a writ of mandamus issue directing the Second Respondent to determine the application received by it on 3 July 2006 for review of the Delegate’s Decision according to law.

4. That a writ of prohibition issue directed to the First Respondent preventing the First Respondent from acting on the Delegate’s Decision of 10 May 2006 to refuse to grant a class BQ Skilled – Australian sponsored (Migrant) visa to the Applicants.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 173 of 2007

BEGUM ROWSHON AHMED, ABU NAIM MD SALEH, FERDOUS ARA BEGUM AND ANTARA LABIBA NAIM

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 27 July 2007 the Applicants applied for judicial review of a decision of the Migration Review Tribunal made on

   
   21 June 2007

   and handed down on 29 June 2007.[1]

   [1] “Tribunal Decision”; Case Book 346-360 (“CB”).

2. The First Applicant is the Second Applicant’s sponsor.  The Second Applicant is the husband of the Third Applicant.  The Fourth Applicant is the child of the Second and third Applicants.[2]

   [2] CB 196 and 198.

3. The Second Applicant arrived in Australia in November 2004 holding a subclass 574 student visa, and was, later that month, granted a subclass 573 student visa.  A further subclass 573 visa was granted on 24 April 2006 ceasing on 30 July 2007.[3]

   [3] CB 347.

4. The Second Applicant, the Third Applicant and the child, sponsored by the First Applicant applied for a Class BQ visa on 11 August 2005.[4]

   [4] CB 46-182 and 347.

5. The Tribunal Decision affirmed a decision of a Delegate of the First Respondent to refuse to grant a Class BQ visa to the Second Applicant.[5]

   [5] CB 193-195.

Issue

1. The essential issue for the purposes of this application for judicial review is whether the Government of Bangladesh provided “financial support” to the Second Applicant, and whether the Tribunal committed jurisdictional error in determining that the Government of Bangladesh did provide financial support to the Second Applicant.

Legislation

1. There does not appear to be any dispute that in order to be granted a Class BQ visa the Second Applicant was required to satisfy item 5010 of the Migration Regulations, 1994 (Cth).[6]  Item 5010 provides as follows:

   [6] “Migration Regulations”.

   (1)     If

   (a)     the applicant is the holder of an AusAID student visa; or

   (b)     the applicant is the holder of a Subclass 560, 562, 563, 570, 571, 572, 573, 574 or 575 visa granted to the applicant who is provided financial support by the government of a foreign country;

   the applicant meets the requirements of subclause (3), (4) or (5).

   (2)     If:

   (a)     the applicant is not the holder of an AusAID student visa and has in the past held an AusAID student visa; or

   (b)     both:

   (i) paragraph (a) does not apply to the applicant, and the applicant is not the holder of a substantive visa; and

   (ii)     the last substantive visa held by the applicant was a Subclass 560, 562, 563, 570, 571, 572, 573, 574 or 575 visa granted to the applicant who was provided financial support by the government of a foreign country;

   the applicant meets the requirements of subclause (3), (4) or 95).

   (3)     The applicant meets the requirements of this subclause if the course of study or training to which:

   (a)     the visa mentioned in paragraph (1)(a) or (b) relates; or

   (b)     if paragraph (2)(a) applies – the AusAID visa most recently held by the applicant related; or

   if paragraph (2)(b) applies – the last substantive visa held by the applicant related;

   (whether or not the applicant has ceased the course) is one designed to be undertaken over a period of less than 12 months.

   (4)     The applicant meets the requirements of this subclause if the applicant:

   (a)     has ceased:

   (i) the course of study or training to which:

   (A) the visa mentioned in paragraph (1)(a) or (b) relates; or

   
   

   (B)     if paragraph (2)(a) applies – the AusAID visa most recently held by the applicant related; or

   
   

   (C)     if paragraph (2)(b) applies – the last substantive visa held by the applicant related; or

   (ii)     another course approved by the Aus AID Minister or the government of the foreign country that provided financial support to the applicant, as the case requires, in substitution for that course; and

   (b)     has spent at least 2 years outside Australia since ceasing the course.

   (5)     The applicant meets the requirements of this subclause if:

   (a)     the applicant has the support of the AusAID Minister or the government of the foreign country that provided financial support to the applicant, as the case requires, for the grant of the visa; or

   (b)     the Minister is satisfied that, in the particular case, waiving the requirement of paragraph (a) is justified by:

   (i) compelling circumstances that affect the interests of Australia; or

   (ii)     compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

   (6)     In this clause:

   AusAID student visa has the same meaning as in regulation 1.04A.

   cease has the same meaning as in regulation 1.04A.

Tribunal Decision

Evidence

1. The Tribunal dealt with the evidence before it and, in summary, found the following to be the relevant facts of the matter:

   a)the Second Applicant arrived in Australia on 13 November 2004 holding a subclass 574 student visa granted on 30 September 2004;[7]

   [7] CB 347.

   b)the Second Applicant was granted a subclass 573 student visa on 29 November 2004 and again on 24 April 2006, the latter to expire on 30 July 2007;[8]

   [8] CB 347.

   c)the Third Applicant and Fourth Applicant also arrived in Australia on 13 November 2004;[9]

   [9] CB 347.

   d)the Second Applicant travelled outside Australia between 4 and 26 July 2006, but had remained in Australia since 26 July 2006;[10]

   [10] CB 347.

   e)

   the Third and Fourth Applicants departed Australia on

   
   5 December 2006

   and had remained outside of Australia;[11]

   [11] CB 347.

   f)the Second Applicant, together with the Third and Fourth Applicants, applied for class BQ visas on 11 August 2005;[12]

   [12] CB 347.

   g)the class BQ visa applications were sponsored by the Second Applicant who signed an acknowledgement that he had access to sufficient funds to support himself and his family members (whether or not they accompanied him to Australia) for the total period of his stay in Australia when he applied for his student visa in June 2004;[13]

   [13] CB 347.

   h)when applying for the student visa in June 2004 the Second Applicant also provided a signed financial guarantee from a cousin living in Australia, the guarantee applying to all course fees, educational, maintenance and other expenses, as well as travel expenses to and from Australia for the Second Applicant;[14]

   [14] CB 347.

   i)there was a memorandum dated 10 November 2004 from the Bangladesh Agriculture Research Institute[15] stating that the Second Applicant had been “granted study leave with half average pay for a total of 2 (two) years from 22-11-04 to 21-11-06”[16] and stipulating eleven conditions on which the study leave was granted, including the following:

   [15] “BARI”; CB 347-348.

   [16] CB 348.

   The … study leave was to be considered as active service;

   
   

   The “respective office[r]” was to bear all related expenses for the … study;

   
   

   The [Second Applicant] was not to receive any salary in foreign currency;

   
   

   The [Second Applicant] was not permitted to remain overseas beyond the approved leave periods;

   
   

   After returning to Bangladesh at the end of the study period the [Second Applicant] was required to serve BARI for a period of four years”.[17]

   [17] CB 348.

   j)that if the Second Applicant did not return to Bangladesh he was obliged to repay a bond of BDT 300,000 (or about $5,000 Australia dollars);[18]

   [18] CB 348.

   k)the Second Applicant purchased $10,000 Australia dollars for tuition fees and $12,000 Australian dollars for personal expenses in Bangladesh;[19]

   [19] CB 348.

   l)

   there was a letter from the Director General of BARI dated

   
   

   31 May 2006 indicating that the Second Applicant had been granted study leave and was a “self financing student who was responsible for all study expenses and who was not in receipt of any scholarship or financial support from the Bangladesh Government or from BARI” and that the Second Applicant had agreed to continue working at BARI after completing his studies in Australia;[20]

   [20] CB 349.

   m)the study leave policy at BARI which indicated that employees may elect to draw accrued annual leave in a lump sum or in regular payments during study leave;[21]

   [21] CB 349.

   n)there was a letter dated 7 June 2006 from the University of Notre Dame in Fremantle advising that the Second Applicant was enrolled in a two year Master of Professional Accounting course commencing in semester one of 2006;[22]

   [22] CB 349.

   o)Statutory Declarations from Mohamed Sidker and Shahanara Begum stating that they sponsored the Second Applicant’s studies in Australia;[23]

   [23] CB 349.

   p)the First Applicant indicated that both she and her husband were sick and that the Second Applicant and his family wished to remain in Australia, and that the Second Applicant was not sponsored by the Bangladesh Government, but that the First Applicant and her husband as well as other family members had paid the Second Applicant’s course fees;[24]

   [24] CB 349.

   q)the evidence of the Second Applicant as to the basis on which he was granted study leave from BARI, including that:

   i)he did not receive any payments from BARI between November 2004 and November 2006;

   ii)he received monthly payments of BDT 7,000 – 8,000 (A$129 – A$148) from BARI between November 2004 and November 2006 being a lump sum payment of his accrued annual leave;

   iii)all of his leave and other entitlements were paid out prior to his travel to Australia in November 2004 and he was not owed any outstanding money by BARI at that time;

   iv)he was entitled to be paid for annual leave between November 2004 and November 2006 as part of the study leave agreement, that study leave being eight weeks of paid annual leave;

   v)he was unable to state whether the monthly payments between November 2004 and November 2006 were calculated by reference to his normal annual leave allocation for two years;

   vi)because he had been employed by BARI since 1995 he was entitled to be paid the equivalent of long service leave whilst in Australia;

   vii)the monthly payments represented payments from his own superannuation and benevolent fund accounts;

   viii)he will receive a lump sum payment of his superannuation upon his retirement;[25]

   [25] CB 350.

   r)the Second Applicant knew that he was required to pay the bond if he did not return to Bangladesh, and gave evidence that the bond was “perhaps” the equivalent of the monthly payments made by BARI to his account in Bangladesh between November 2004 and November 2006;[26]

   s)there was a letter dated 14 May 2007 from the Director General of BARI stating that the Second Applicant was granted study leave from 22 November 2004 to 21 November 2006 and that he was granted “leave without pay or allowances” to 21 November 2007, but that he was in receipt of half average salary from 22 November [2004] to 22 November 2006 to support his family, but that he was not eligible for a scholarship or other financial support from the Bangladesh Government;[27]

   t)there was a copy of a government approved leave rules for “government servants” in Bangladesh provided by the Second Applicant which, amongst other things, provided that:

   [26] CB 350.

   [27] CB 351.

   “study leave can only be granted by the government;

   
   

   study leave should not ordinarily be granted to government servants of less than five years service;

   
   

   study leave must not exceed two years, but may be combined with extraordinary leave or medical leave for up to a further four months;

   
   

   study leave will count as extra leave on half average pay;

   
   

   study leave will count as service for promotion and pensions;

   
   

   study leave will not affect any leave already accrued by the government’s servant and is not debited against their leave account;

   
   

   government servants on study leave are ordinarily required to meet study costs;

   
   

   government servants must provide a Certificate of Examinations Passed and a Certificate of Completion of Studies;”[28]

   u)the government approved leave rules also included a compensation table indicating that a bond of BDT 3,000,000 for one to two years absence and BDT 5,000,000 for two to three years absence was required and that in the event that the government’s servant remained absent from employment without leave for more than five years the bond is realised.

   [28] CB 351.

2. The facts as found by the Tribunal do not appear to be in dispute, or not in dispute in any way which affects the Court’s ability to deal with the relevant issue.

Findings

1. The Tribunal found that it had to deal with the issue of whether the Second Applicant met the criteria set out in item 5010, and specifically the special return criterion.[29]

   [29] CB 354.

2. The Tribunal found that if the Second Applicant was provided with financial support by the Government of Bangladesh at the time of the grant of the then current subclass 573 visa then para. (1)(b) of item 5010 applied, and there was therefore a need for the Second Applicant to satisfy one of paragraphs (3), (4) or (5) of item 5010.[30]

   [30] CB 354.

3. The Tribunal went on to deal with “financial support”, noting that it was not defined in item 5010 or elsewhere in the regulations nor in Migration Series Instructions, but that the latter stated that item 5010 applied to “foreign government sponsored students”, and that policy provided that item 5010 was designed to encourage foreign government sponsored students to return home to apply their learning rather than remain in Australia.[31]  The Tribunal went further and said that there was no indication in any relevant statutory provision or policy that “financial support” was intended to:

   a)refer only to scholarship or formal sponsorship arrangements between a visa holder and a foreign government; and

   b)be limited to the payment of course fees only or living expenses only.[32]

   [31] CB 354-355.

   [32] CB 355.

4. The Tribunal accepted that the financial capacity of the Second Applicant was:

   a)“assessed on the basis that he was to receive financial support from family members in Australia and overseas”;[33] and

   b)that there was no undertaking by the Government of Bangladesh to formally provide course fees or living expenses for the Second Applicant.[34]

   [33] CB 355.

   [34] CB 355.

5. In determining whether the Second Applicant was provided with financial support by the Government of Bangladesh the Tribunal took into account “all of the documentary evidence” provided on his behalf to the department and the Tribunal.[35]

   [35] CB 355.

6. The Tribunal then set out a number of matters which it accepted, namely:

   a)that the Second Applicant was not in receipt of any scholarship  from the Government of Bangladesh during study leave in Australia;

   b)that it was a condition of the Second Applicant’s study leave that he was responsible for the payment of his course fees and living expenses;

   c)that the Second Applicant received financial support from the First Applicant and other relatives in Bangladesh to assist him to meet course fees, and living expenses for the Third Applicant and Fourth Applicant whilst they were residing with him in Australia; and

   d)that course fees were paid on the Second Applicant’s behalf by family members, not by the Government of Bangladesh.[36]

   [36] CB 355.

7. Concerning the Second Applicant’s leave the Tribunal found that the Second Applicant’s study leave was granted for two years from

   
   22 November 2004

   until 22 November 2006 on the basis that he was a long term employee of BARI and a “government servant” of the Government of Bangladesh.[37]  The Tribunal also found that the Second Applicant was granted additional unpaid leave from November 2006 to November 2007 to enable him to complete a Masters degree whilst in Australia.[38]  The periods of leave were approved by order of the Office of the Prime Minister of Bangladesh.[39]

   [37] CB 355.

   [38] CB 355.

   [39] CB 355.

8. The Tribunal found that the Second Applicant was provided with financial support by the Government of Bangladesh between November 2004 and November 2006, that support being provided at the time of the grant of a subclass 573 visa on 24 April 2006.[40]  The Tribunal arrived at that primary finding having regard to a number of findings made in relation to the facts of the matter, including:

   a)that salary payments made by BARI during the two year study leave period were calculated according to government rules for approved study leave;[41]

   b)the Second Applicant received payment of “half average salary” in addition to accrued benefits under a “government-sponsored study leave programme” approved by the Prime Minister’s Office in Bangladesh “for civil servants of at least five years standing.”[42]

   c)the Second Applicant continued to be a government servant, employed by BARI, and accruing seniority and pension benefits, during the approved study leave in Australia;[43]

   d)the salary payments of “half average salary” for the two years of approved study leave were paid by the Government of Bangladesh, and were paid in addition to any pre-existing leave entitlements;[44]

   e)the Second Applicant was required to lodge a bond with the Government of Bangladesh, which would be forfeited if he did not return to government employment at the end of the approved study leave period;[45]

   f)the Second Applicant’s study leave in Australia was “subsidised by the Government of Bangladesh” notwithstanding that the Government of Bangladesh “did not accept direct responsibility for payment of any education or living expenses” for the Second Applicant;[46]

   g)there was an arrangement between the Second Applicant and BARI and the Prime Minister’s Office of Bangladesh, that arrangement being in accordance with government rules, including the payment of half average salary, and accrual of seniority pension benefits, during a two year study leave period.[47]

   [40] CB 357.

   [41] CB 356.

   [42] CB 356.

   [43] CB 356.

   [44] CB 356.

   [45] CB 356.

   [46] CB 356.

   [47] CB 356.

1. Having found the above facts the Tribunal then said:

   “The Tribunal finds that the rules applicable to the study leave programme provided for government servants in Bangladesh set out a well-defined framework for that government to make a significant investment in the further education of its civil servants by continuing to pay partial salaries and allowing approved study leave candidates to accrue benefits during the study period, whilst taking steps to ensure that those civil servants return to Bangladesh at the end of the study period so that the government’s investments can be realised.”[48]

   [48] CB 356.

2. On the basis of the finding that financial support was provided by the Government of Bangladesh to the Second Applicant the Tribunal went on to make findings that the Second Applicant did not satisfy the requirements of paragraphs (3), (4) or (5) of item 5010 of the Migration Regulations.

Further Evidence

1. In this Court the Second Applicant seeks to rely upon a further affidavit sworn 21 January 2008.

2. The Second Applicant’s further affidavit sets out material concerning:

   a)the grant, in error, of a subclass 574 visa by the Australian High Commission in Bangladesh in September 2004;[49]

   b)the Second Applicant learning about the visa error after his arrival in Perth when his subclass 574 visa was replaced with the correct subclass 573 visa;[50]

   c)copies of the visa labels granted from 30 September 2004 to 14 August 2007 and assertions by the Second Applicant that had he been receiving financial support from the Government of Bangladesh that mandatory condition 8535 would have been attached to his student visa;[51]

   d)further information concerning the policies of BARI and various policy documents and letters related to leave entitlements, financial benefits and liabilities and salary entitlement.[52]

   [49] Further Affidavit, para. 4.

   [50] Further Affidavit, para. 5.

   [51] Further Affidavit, paras. 7-9.

   [52] Further Affidavit, paras. 10-15.

3. None of the material was put before the Tribunal, and to a significant extent the material is material of a type that:

   a)ought to have been before the Tribunal on merit review;[53]

   b)was irrelevant;[54]

   c)was argumentative, and in the nature of submissions, but in any event on matters that were not before the Tribunal.[55]

   [53] Especially Further Affidavit, paras. 10-15.

   [54] Further Affidavit, paras. 4-6.

   [55] Further Affidavit, paras. 7-9 and 15.

4. There is nothing in the further evidence sought to be submitted which will assist the Court with the determination of whether the Tribunal committed jurisdictional error, particularly in relation to whether or not the Second Applicant was provided with financial support by the Government of Bangladesh.

Jurisdictional Error

1. The Tribunal’s Decision can only be set aside if it involves jurisdictional error.[56]

   [56] Migration Act, 1958 (Cth) ss.474(1) and 476(1) and (2); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para. 76 per Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ (“S157/2002”).

2. Jurisdictional error occurs where the decision maker (in this case the Tribunal):

   (a)identifies a wrong issue;

   (b)asks the wrong question;

   (c)ignores relevant material; or

   (d)relies on irrelevant material,

   in a way affecting the exercise of power by the decision maker, resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[57]

   [57] Minister for Immigration and Multicultural Affairs & Ors v Yusuf & Ors (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para. 82 per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Isahak v Minister for Immigration & Anor [2008] FMCA 613 at paras. 52-54 per Lucev FM.

3. Determination of whether a decision which involves jurisdictional error requires an examination of the limitations and restraints found in the Migration Act, and an attempt, through statutory construction, to reconcile any relevant limitations and restraints with s.474 of the Migration Act, so as to ascertain whether failure to observe procedural or other requirements in the Migration Act constitutes an error resulting in the decision maker’s failure to exercise, or exceeding, jurisdiction.[58]

Consideration

[58] S157/2002 CLR 506-607 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; HCA paras. 76-78 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Ndungu v Minister for Immigration & Anor (2007) 213 FLR 123 at 143 per Lucev FM; [2007] FMCA 217 at para. 57 per Lucev FM.

Grounds of application

1. There are nine grounds of application for judicial review.

2. Ground 1 asserts that the Tribunal’s Decision was in excess of jurisdiction in that it was “not a ‘proper, genuine and realistic’ review”. Ground 1 cannot succeed alone – whether the Tribunal did not undertake a proper, genuine and realistic review can generally only be determined in the light of the success or otherwise of other grounds. However, even if other grounds are successful, it does not necessarily mean that the Tribunal did not undertake a proper, genuine and realistic review.[59]

   [59] The use of the conjunctive “and” in this ground of review, as opposed to the disjunctive “or” makes it more difficult for the ground to be established.

3. Grounds 2 to 4 and 6 to 8 assert various errors in relation to the Tribunal’s finding with respect to the provision of financial support to the Second Applicant by the Government of Bangladesh.  Ground 9 flows from those grounds in asserting that there was a failure to properly apply the criteria set out for special return criteria in

   
   

   reg.139.325 of the Migration Regulations.

4. Ground 5 stands alone in that it says that the Tribunal erred in relation to certain findings made concerning the Second Applicant being bonded to the Government of Bangladesh to return to employment in Bangladesh after the period of study leave in Australia. Ground 5 cannot succeed because it asserts a pure factual error within jurisdiction on a matter (subsequent bonding) irrelevant to the provision of financial support at the time the relevant visa was granted.

5. For present purposes, it is the Court’s intention to deal with Grounds 2 to 4 and 6 to 8 (and consequently 9), which in essence assert that:

   a)the Tribunal did not properly interpret, and gave a wrong meaning to, the words “financial support”; and

   b)as a consequence of its failure to properly address the ordinary meaning of “financial support” it erred in its finding that the Second Applicant was provided with financial support by the Government of Bangladesh.

Financial support – ordinary meaning

1. In order to make the finding that the Second Applicant was “provided financial support by the government of a foreign country” it was necessary for the Tribunal to have found that:

   a)the Second Applicant was receiving support;

   b)the support was financial; and

   c)the financial support was provided by a foreign government.

2. There is no doubt that if the arrangements between the Second Applicant and the Government of Bangladesh which resulted in payment to him of half average salary were support, it was support of a financial kind provided by a foreign government.  That is, the support was “of or pertaining to finance or money matters”, finance being the “pecuniary resources of a sovereign or a State; hence of a company or individual”.[60]  There was no dispute that a foreign government, namely the Government of Bangladesh, was the source of the alleged “financial support”.

   [60] See definitions of “financial” and “finance” respectively in The Shorter Oxford English Dictionary on Historical Principles (3^rd Edn) (Oxford: Oxford University Press, 1973) Vol. 1 at page 752.

3. The real question therefore is whether the payment of half average salary to the Second Applicant by the Government of Bangladesh is or is not “support”.

4. To “support” is to take action to give a person “assistance, countenance, backing” or the “action of keeping from failing, exhaustion or perishing; esp. the supplying of a living thing with what is necessary for subsistence; the maintenance of life”.[61]

   [61] See definitions of “support” in The Shorter Oxford English Dictionary on Historical Principles (3^rd Edn) (Oxford: Oxford University Press, 1973) Vol. 2 at page 2196.

5. The Tribunal did not examine, at least explicitly, what constituted support for the Second Applicant.  Whilst the Tribunal has said what “financial support” is not, or what it was not limited to, it did not ask the question as to what constituted “financial support”, and in particular whether payment of “salary” constituted “financial support”. The Tribunal seems to have assumed that because the Government of Bangladesh was providing the Second Applicant with half average salary, and that at least one BARI official has described that as support,[62] that that constituted “financial support”.  In order to determine whether that is correct or not the Tribunal ought to have considered whether the provision of salary was truly “support” or “financial support”.[63]

   [62] See para. 8(s) above.

   [63] There is no doubt that it is financial, the real question is whether it is support.

6. As to what constitutes “salary” in The Totalisator Agency Board v Fisher[64] the Western Australian Industrial Appeal Court[65] held that the interpretation of salary in Re Shine; ex parte Shine[66] correctly set out the characteristics of what constituted salary.[67]  In Re Shine Bowen LJ said:

   “Salary … must mean a definite payment for personal services arising under some contract, and … computed by time.”[68]

   and Fry LJ said:

   “Whenever a sum of money has these four characteristics – firstly, that it is paid for services rendered; secondly, that it is paid under some contract or appointment, thirdly, that is computed by time; and fourthly, that is payable at a fixed time – I am inclined to think that it is a salary, and not the less so because it is liable to determination at the will of the payer, or that it is liable to deductions.”[69]

   [64] (1997) 77 WAIG 1889 (“Fisher”).

   [65] The Industrial Appeal Court is made up of judges of the Supreme Court of Western Australia sitting as the Industrial Appeal Court: Industrial Relations Act, 1979 (WA), s.85.

   [66] [1892] 1 QB 522 (“Re Shine”).

   [67] Fisher at 1891 per Anderson J, with whom Kennedy J at 1890 and Scott J at 1891 agreed.

   [68] Re Shine at 529 per Bowen LJ.

   [69] Re Shine at 531 per Fry LJ.

7. In Fisher Anderson J referred to the dictionary meanings of “what salary in its ordinary sense means.”[70]  He said:

   [70] Fisher at 1890 per Anderson J.

   “In the Macquarie Dictionary the following meaning is given –

   
   

   “A fixed periodical payment, usually monthly, paid to a person for regular work or services, especially work other than that of a manual, mechanical or menial kind.”

   In the New Shorter Oxford English Dictionary the following meaning is given -

   
   

   “Fixed regular payments made by an employer to an employee in return for work.””[71]

   [71] Fisher at 1890-1891 per Anderson J.

8. In Fisher Kennedy J, whilst agreeing with Anderson J, also referred to “the primary definition” of salary as being:

   “Fixed payment made periodically to a person as compensation for regular work; now usually restricted to payments made for non-manual or non-mechanical work (as opposed to wages).”[72]

   [72] Fisher at 1890 per Kennedy J citing the definition of “salary” in A New Oxford English Dictionary.

9. In this case the Second Applicant was paid half average salary during the period from November 2004 to November 2006 whilst on study leave from his employment with BARI in Bangladesh.  That salary was:

   a)paid for services rendered, albeit rendered in the past; [73]

   b)paid under some contract or appointment, namely, the Second Applicant’s appointment as a government servant in Bangladesh;

   c)computed by time, namely the time that the Second Applicant served with BARI; and

   d)payable at a fixed time, seemingly monthly.

   [73] And in that respect might be no different to a person taking accrued annual leave.

10. Put more broadly, during the period of paid study leave the Second Applicant received fixed regular payments by an employer (BARI) in return for work which he had performed over the last few years, whilst continuing to accrue service and other benefits.

11. Thus the money paid as half average salary was payment for services rendered.  In that sense, it is not support, financial or otherwise. 

12. It is presently unnecessary to consider whether the salary was payable by reason of:

    a)statute;

    b)government policy; or

    c)under the terms of a common law contract of employment; or

    d)under the terms of a contract of employment regulated by statute,

    because those considerations, although all possibly relevant and open for consideration on the material adverted to by the Tribunal, do not alter the fact that the Tribunal failed to consider whether the payment of salary, properly defined, was within the ordinary meaning of “financial support”.

13. In the Court’s view the Tribunal failed to ask itself the question whether the payment of salary to the Second Applicant constituted financial support, and if it did, then it so misconstrued, or failed to have regard to, the true nature of salary, that it failed to have regard to a relevant consideration, that is the true nature of salary and whether that could amount to financial support. These failures constituted jurisdictional error, and the matter must be remitted to the Tribunal to be determined according to law.

Order and costs

1. There will be an order granting prerogative relief, by way of writs of certiorari and mandamus directed to the Second Respondent and a writ of prohibition directed to the First Respondent.

2. The Court will hear the parties as to costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Lucev FM

A/Associate:  S. Gough

Date: 30 June 2008