Al Ferdous v MIAC

Case [2011] FCA 1070

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 182
Date 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
Appellant
AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION 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
Appellant
AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

STONE J

DATE:

20 SEPTEMBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. 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…

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Details
AGLC
Al Ferdous v MIAC [2011] FCA 1070
Case
[2011] FCA 1070
Decision Date

CaseChat Overview and Summary

This appeal was brought by Mr Al Ferdous, a citizen of Bangladesh who held a student visa in Australia, against the Minister for Immigration and Citizenship. His visa was cancelled due to a breach of Condition 8104, which prohibited him from working more than 20 hours per week. The primary issue in this case was whether the Tribunal correctly interpreted the term “work” under Condition 8104, and whether the appellant’s actions of driving a taxi back to base, logging on and off, and handing over to the next driver constituted work within the meaning of the visa condition.

The appellant argued that these actions were not work as they did not directly generate income. However, the court found that these activities were integral to the work of a taxi driver and were undertaken for the purpose of earning income. The court held that the test to determine whether an activity is work is whether it normally attracts remuneration in Australia, regardless of whether the individual performing the activity receives remuneration. The court found that the Tribunal’s interpretation and application of the term “work” was correct and that the Tribunal had complied with its statutory obligations.

The court also noted that the appeal did not challenge the merits of the Tribunal’s decision, which is outside the jurisdiction of this Court and the Federal Magistrates Court. As such, the appeal was dismissed with costs.

In summary, the court found that the Tribunal’s decision to cancel the appellant’s visa was lawful, and that the term “work” under Condition 8104 was correctly interpreted to include the appellant’s actions of driving a taxi back to base, logging on and off, and handing over to the next driver. The appeal was dismissed with costs.

Orders

Orders of the court

1 The appeal be dismissed with costs

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.