Al Ferdous v MIAC
[2011] FCA 1070
•20 September 2011
FEDERAL COURT OF AUSTRALIA
Al Ferdous v Minister for Immigration & Citizenship [2011] FCA 1070
Citation: Al Ferdous v Minister for Immigration & Citizenship [2011] FCA 1070 Appeal from: Al Ferdous v Minister for Immigration & Anor [2010] FMCA 824 Parties: FARUK AL FERDOUS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 1588 of 2010 Judge: STONE J Date of judgment: 20 September 2011 Catchwords: ADMINISTRATIVE LAW – whether claim to ‘proper, genuine and realistic consideration’ is covert application for merits review
MIGRATION – Condition 8104 – appeal – student visa subclass 572 cancelled due to breach of Condition 8104 – condition prohibited working more than 20 hours a week – whether driving taxi back to base, logging on and off and handing over to next driver is work within the meaning of Condition 8104 – meaning of “work” – whether Tribunal complied with statutory obligations – where Condition 8104 breached visa cancellation mandatory under s 116(3) of Migration Act 1958 (Cth) and reg 2.43 of Migration Regulations 1994 – Tribunal has no discretion
Words & phrases:
“work” and “proper, genuine and realistic consideration” Legislation: Migration Act 1958 (Cth) s 116(3)
Migration Regulations 1994 (Cth) reg 2.43(2)(b)
Cases cited: Hossain v Minister for Immigration & Citizenship [2007] FCAFC 67
Islam v Minister for Immigration & Citizenship [2007] FCAFC 66
Kamely v Minister for Immigration & Citizenship [2011] FCA 1071
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Multicultural and Indigenous Affairs v Alam (2005) 145 FCR 345
Swift v SAS Trustee Corporation [2010] NSWCA 182Date of hearing: 11 February 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 27 The Appellant appeared in person with the assistance of an interpreter. Counsel for the First Respondent: JD Smith Solicitor for the First Respondent: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1588 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: FARUK AL FERDOUS
AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE OF ORDER:
20 SEPTEMBER 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1 The appeal be dismissed with costs
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1588 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: FARUK AL FERDOUS
AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
STONE J
DATE:
20 SEPTEMBER 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a decision of a Federal Magistrate delivered on 29 October 2010: Al Ferdous v Minister for Immigration & Citizenship [2010] FMCA 824. His Honour dismissed the appellant’s application for judicial review of the decision of the Migration Review Tribunal made on 21 July 2010. The Tribunal had affirmed a decision to cancel the appellant’s subclass 572, Vocational Education and Training Sector visa.
The appeal was heard at the same time as the appeal in Kamely v Minister for Immigration & Citizenship [2011] FCA 1071. That appeal was brought by the wife of Mr Al Ferdous, Ms Kamely, whose visa was also cancelled for reasons similar to those relevant here. Because both appeals raised the same issues they were heard together. These reasons should be read in conjunction with the reasons in the Kamely appeal.
BACKGROUND
Mr Al Ferdous is a citizen of Bangladesh who arrived in Australia on 25 June 2006 as the holder of a student visa granted to him as a dependant of his wife who was studying in Australia. He was most recently granted a Subclass 572 visa, on 6 November 2009, also as a dependant of his wife. His visa was subject to a condition, Condition 8104, which prohibited him from working more than 20 hours per week while in Australia. The condition defines a week as “the period of 7 days commencing on a Monday”.
In January 2010 an allegation that the appellant was working as a taxi driver in Perth for “up to 70 hours per week” was made to the Department of Immigration and Citizenship. The allegation was investigated and on 19 March 2010 the Department gave the appellant written notice of intention to consider cancellation of his visa. The Minister’s delegate cancelled the visa on the same day under s 116(3) of the Migration Act 1958 (Cth) and reg 2.43(2)(b) of the Migration Regulations 1994 (Cth) for failure to comply with Condition 8104. On 29 March 2010 the appellant applied for a review of that decision.
The Tribunal’s decision
The Tribunal reviewed the documentary evidence provided by the appellant and also provided an opportunity for him to give oral evidence with the assistance of an interpreter on 1 June 2010. The appellant gave evidence about his personal circumstances, his arrival in Australia, and the grant of his student visa. He said that he was aware that it was a condition of his visa that he not work more than 20 hours per week.
In written submissions and in the oral evidence of the appellant the Tribunal was provided with detailed evidence about the appellant’s work practices and the manner in which his time was recorded. The Tribunal was conscious of the need to make clear findings of fact regarding the number of hours that the appellant worked in any given week. For this reason the Tribunal disregarded much of the evidence as not conducive to clear findings.
As the Tribunal had the benefit of the appellant’s timesheets for the period 1-27 February 2010 for the purpose of determining the hours worked by the appellant, it focused on that period. On the basis of those timesheets the Tribunal found that the appellant worked a total of 20 hours and 51 minutes in the week commencing on Monday, 1 February 2010 and ending Sunday, 7 February 2010. The Tribunal reached this conclusion having reviewed the appellant’s time sheets and said:
The review applicant did not dispute the information contained in his timesheet, or the Tribunal’s calculations. In fact, the review applicant conceded that he had worked in excess of 20 hours in the week commencing 1 February 2010 and ending on 7 February 2010. Accordingly, the Tribunal finds that the review applicant worked in excess of 20 hours in this particular week whilst the holder of a student visa in Australia and that he did not comply with subclauses 8104(1) and (3).
The Tribunal rejected the appellant’s argument that he was not working when he was delayed by almost an hour returning to his taxi station to log off by the demands of a non-fare paying customer. The Tribunal considered the logging on and off procedures and the handover from one taxi driver to another were integral to the work of a taxi driver and were undertaken for the purpose of earning income as a taxi driver. Similarly the Tribunal rejected the appellant’s submission that he was not working while waiting for a fare.
The appellant’s representative argued that the Tribunal when considering the appellant’s breach should have “balanced [it] against the circumstances in which it arose”. The Tribunal referred to the Minister for Immigration and Multicultural and Indigenous Affairs v Alam (2005) 145 FCR 345 which, at [13], holds that sub-reg 2.43(2)(b) and s116(3) of the Act removed any discretion from the Tribunal once non-compliance with Condition 8104 is established regardless of the extent of the non-compliance, or what were the relevant circumstances. Consequently the Tribunal was satisfied that the appellant had breached the condition of his visa and s 116(3) and affirmed the Delegate’s decision to cancel the subclass 572 Vocational Education and Training Sector visa.
The decision of the Federal Magistrate
The appellant sought judicial review of the Tribunal’s decision on three grounds stated in his application as follows (including errors in the original):
1.The Tribunal made an error in connection of the information which the Tribunal used in making the decision of the application
2.The Tribunal failed to consider the applicant’s situation, where the applicant became the victim of the circumastances .
3.The Tribunal failed consider the applicant’s real state of affairs concerning his exceding work limit.
No particulars were provided in relation to any of these grounds. The Federal Magistrate was of the opinion that without some explanation ground 1 was meaningless. His Honour postulated that the appellant may have had in mind some failure to put information to the appellant pursuant to s 359A but held that, if so, the submission must be rejected because,
the only account of what occurred at the hearing with the applicant that is before the Court is the Tribunal’s own unchallenged account in its decision record. This reveals that this information and its relevance were disclosed at the hearing in such a way that the provisions of s 359AA were engaged. This section of course stands in a facilitative relationship with s 359A (see SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46). No error is revealed.
With respect to ground 2 and 3, the appellant alleged that the Tribunal failed to consider the situation and circumstances of the appellant’s breach of Condition 8104 in the week of 1 February 2010 and failed to consider the “real state of affairs” of the appellant. The appellant submitted that Condition 8104 allows for the reading down of a literal reading of its requirement so that hours worked in excess of 20 hours in any one week can be averaged out over the entire period that the visa holder is in Australia.
The Federal Magistrate rejected this submission. His Honour noted that Condition 8104(b) defines “week” as meaning the period 7 days commencing on a Monday. The definition focuses on specific periods starting on a Monday and is inconsistent with the construction advocated by the appellant. In this regard his Honour noted that the same construction had been rejected by the Full Federal Court in Islam v Minister for Immigration & Citizenship [2007] FCAFC 66 and Hossain v Minister for Immigration & Citizenship [2007] FCAFC 67.
For those reasons the Federal Magistrate found that the Tribunal had not made any jurisdictional error and dismissed the application for judicial review. As a postscript his Honour deplored the lack of flexibility inherent in the application of the visa scheme to circumstances such as those of Mr Al Ferdous and commented that the outcome it produced,
can only reflect poorly on our self-proclaimed image as an open society committed to the notion of a “fair go”.
The present appeal
In his notice of appeal filed on 18 November 2010 the appellant complains that the Tribunal did not give “proper genuine and realistic consideration” to his written submissions concerning logging on and off and that it erred in “deciding the application on the basis of miscalculation of the totality of the claim”. He also referred to the Federal Magistrate’s comments about a fair go (see [14] above) and alleged an error by the Tribunal in this respect.
The last ground of appeal seems to be asserting that the Tribunal did not give the appellant a “fair go”. The appellant did not make any submissions in relation to this issue and while it is not entirely clear what was meant, it is clear that his Honour’s comments did not form part of his reasons for decision and it is not necessary to consider this ground further.
The appellant had little to say about the other two grounds of appeal. He again conceded that he exceeded the allowed time for driving the taxi by 51 minutes but reiterated the submissions made to the Tribunal about not being paid for the time taken to return to base and logging off and also that, given the distance that his last fare had taken him, he was not able to return to the base within time.
In summary the appellant’s submissions raise two issues. The first is whether the reason for him working in excess of 20 hours makes any difference to the question that was before the Tribunal. Secondly, whether the activity in which he was engaged for the last 51 minutes was work within the meaning of Condition 8104.
Counsel for the Minister, Mr Smith, submitted that the appellant needed leave to raise, as a ground of appeal, that the Tribunal did not give “proper genuine and realistic consideration” to the appellant’s written submissions concerning logging on and off. This was because the issue had not been raised before the Federal Magistrate. In relation to an unrepresented appellant I would be reluctant to adopt that course where another approach to the notice of appeal suggests itself. Such an approach was in fact suggested in the submissions for the Minister, namely that it was intended “to capture the essence of the second and third grounds raised below”. Those grounds were that the Tribunal erred “in connection of the information” relied on to make its decision and that it failed to consider that the appellant had been a victim of circumstances.
Ultimately the more beneficial construction of the notice of appeal does not assist the appellant. The phrase “proper, genuine and realistic consideration” was considered in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 by the High Court which referred with apparent approval to the comment of Basten JA in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]:
That which had to be properly considered was the “merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review.
Understood in this way, the ground may well be an invitation to this Court to find error in the Federal Magistrate’s failure to review the merits of the Tribunal’s decision. This is also the case in relation to the second ground of appeal, which refers to the totality of the appellant’s claim. That being so it is appropriate to consider the two grounds together.
Only where the Tribunal in considering the case for review falls into jurisdictional error by, for example, failing to consider that which it was bound to consider or considering that which was irrelevant, would the epithet identify an error able to found relief in the Federal Magistrates Court or in this Court. There is no indication in the Tribunal’s reasons that this has occurred.
As the Minister submitted, the Tribunal’s decision was not discretionary. Once it was satisfied that, as a matter of fact, the appellant had breached the condition of his visa it was required to affirm the decision to cancel the visa: Alam at 348. Moreover the Tribunal gave the appellant abundant opportunity, by written and oral submissions, to clarify any error in the calculation of the time he worked. The appellant conceded that there was no error as to time although he disputed that the term “work” applied to the excess time over 20 hours.
The appellant’s agent made extensive written and oral submissions to the Tribunal. The Tribunal considered these submissions but did not accept them. Its analysis of the issue was detailed and thorough. In considering the meaning of “work” the Tribunal said:
Regulation 1.03 [of the Migration Regulations] defines ‘work’ as “an activity that, in Australia, normally attracts remuneration”. The definition … may include an activity for which an individual visa holder is not remunerated. It is sufficient that it “be an activity that normally attracts remuneration”: Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152 at [156] … However, in Braun the Court also acknowledged that individuals do engage in activities of a domestic or social character. In such a case the activity should not be regarded as work. The assessment of whether an activity should be regarded as work is a “matter of evaluation and degree” [at 156].
In considering whether or not the review applicant has undertaken ‘work’ as defined in the Regulations, the Tribunal has also had regard to the Federal Court decision in Kim v Witton (1995) 59 FCR 258, where Sackville J stated at [268]:
The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason. The test to be applied is an objective one, namely, whether the ‘activity’ performed by the individual normally attracts remuneration in Australia.
[Tribunal emphasis]
The test requires going beyond the nature of the activity in question to the particular context of the assistance provided. Commercial, social, domestic or altruistic motivations may, in the context of all the facts of a case, assist in determining whether a particular activity undertaken voluntarily is one that normally attracts remuneration.
In applying these principles to the appellant’s review application, the Tribunal found that the activity of a taxi driver in returning the taxi to base, handing over to the next driver and logging on and off was capable of being work within the meaning of the definition and was in fact work even where the driver did not earn a fare for the return journey or for the handover. Involved in that finding is a conclusion of law in the construction of the definition and a question of fact in finding that the appellant’s actions were work within the definition as construed. The appellant has not demonstrated any legal error in the Tribunal’s reasons on this point.
In so far as the appellant raises other issues in his grounds of appeal they are issues that go to the merits of his claim and which therefore are beyond the jurisdiction of this Court and the Federal Magistrates Court. It follows that there is no basis on which this appeal from the decision of the Federal Magistrates Court can succeed.
The appeal must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate:
Dated: 20 September 2011
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