Al Ferdous v Minister for Immigration

[2010] FMCA 824

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AL FERDOUS v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 824

MIGRATION – Review of decision of Refugee Review Tribunal – no failure pursuant to s.359A – Condition 8104 does not require an “averaging out” of work periods – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.29, 116, 119, 120, 359A, 359AA
Migration Regulations 1994 (Cth), reg.2.43, Sch.8

Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152
Kim v Witton (1995) 59 FCR 258
Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489
Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 24 ALD 443
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46
Islam v Minister for Immigration & Citizenship [2007] FCAFC 66
Hossain v Minister for Immigration & Citizenship [2007] FCAFC 67

Applicant: FARUK AL FERDOUS

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1759 of 2010

Judgment of: Nicholls FM

Hearing date: 21 October 2010

Date of Last Submission: 26 October 2010

Delivered at: Sydney

Delivered on: 29 October 2010

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr G Johnson SC

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application made on 12 August 2010 is dismissed.

2. The applicant to pay the first respondent’s costs set in the amount of $6,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1759 of 2010

FARUK AL FERDOUS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This application was made on 12 August 2010 under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 21 July 2010, which affirmed an earlier decision by a delegate of the respondent Minister to cancel a Vocational Education and Training Sector visa held by Mr Al Ferdous.

Background

1. The relevant background is as follows. Mr Al Ferdous is a Bangladeshi national who came to Australia in June 2006 as the holder of a student visa. He appears to have been the spouse of a person who came to Australia to study. The visa which was the subject of cancellation and review was issued to him on 6 November 2009, while he was in Australia.

2. Relevantly, a condition attaching to this visa was that Mr Al Ferdous was not to: “… engage in work for more than 20 hours a week” while he was in Australia (Condition 8104(1) of Schedule 8 to the Migration Regulations 1994 (Cth) (“the Regulations) as it was at the relevant time).

3. Following receipt of an allegation that he was working as a taxi driver far in excess of this limit, Mr Al Ferdous was issued with a Notice of Intention to Consider Cancellation (“the Notice”) of his visa on 19 March 2010 (Court Book – “CB” – CB 26 to CB 29).

4. The Notice referred to certain information that was said to reveal that Mr Al Ferdous had worked hours in excess of the 20 hour limit for certain weeks in December 2009 and February 2010.

5. He was put on notice that this may constitute a possible breach of s.116(1)(b) and s.116(3) of the Act, and reg.2.43(2)(b). The effect of this part of the statutory and regulatory scheme was that the Minister (or his delegate) may cancel a visa where the holder of the visa has not complied with a condition of the visa (s.116(1)(b)). Section 116(3) provided that if the Minister may cancel a visa in these circumstances, he must do so if prescribed circumstances compel such a course of action. Such a prescription is found in reg.2.43(2)(b)(i).

6. In essence, if the Minister is satisfied that the visa holder has not complied with a condition of the visa, the visa must be cancelled.

7. The delegate was ultimately satisfied that Mr Al Ferdous had worked in excess of 20 hours for the weeks including 5 and 6 February 2010, and 3 to 6 December 2009. On this basis, the visa was cancelled (CB 30 to CB 35).

The Tribunal

1. Mr Al Ferdous applied for review to the Tribunal on 29 March 2010 (CB 38 to CB 44). He was assisted by a registered migration agent (CB 41 and CB 45).

2. He attended a hearing before the Tribunal and submissions were made on his behalf.

3. The Tribunal found that Mr Al Ferdous had worked in excess of 20 hours for the week commencing 1 February 2010, and that therefore he did not comply with condition 8104(1) ([60] at CB 100).

4. In its consideration the Tribunal had regard to the meaning of “work” for the purpose of the relevant regulatory scheme. The Tribunal referred extensively to relevant legal authority ([55] to [58] at CB 99: Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152, Kim v Witton (1995) 59 FCR 258, Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489, Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 24 ALD 443) to reject the migration agent’s submission that the circumstance which led the applicant to exceed 20 hours work was as a result of the requirement that he remain “logged on” during handover of the taxi to another driver. The distance required to be travelled on the relevant day and the particular events occurring on that day meant that he exceeded the 20 hour work limit.

5. Having regard to its understanding of the meaning of “work”, the Tribunal was not persuaded that this activity fell outside that meaning ([63] at CB 100 to [66] at CB 101). In this the Tribunal considered the applicant’s various submissions.

6. Once the Tribunal had reached the requisite level of satisfaction that Mr Al Ferdous had not complied with a condition of his visa, s.116(3) compelled it to the position that it must affirm the delegate’s decision to cancel the visa.

Application to the Court

1. The application to the Court contains the following three grounds:

   “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.”

   [Errors in original.]

2. No further particulars were provided.

Before the Court

1. The applicant appeared in person before the Court. He was assisted by an interpreter in the Bengali language. Mr Geoffrey Johnson SC of counsel appeared for the respondent Minister. In addition to the Court Book, written submissions were filed on behalf of the applicant and first respondent.

2. Mr Al Ferdous sought to present written submissions. Apparently a version of these submissions had been sent to the Court’s registry the previous afternoon. In any event no objection was raised and I granted leave for the submissions to be filed in Court. The applicant sought to rely on the written submissions. He said he had nothing further to say.

3. The applicant explained that he had consulted a lawyer who had prepared the submissions for him. He provided a business card for a “Barrister Sirajul Haque”, who appears to have legal qualifications but is not admitted to practice in New South Wales.

Consideration

1. The first six paragraphs appear to be drafted to a complaint about the delegate’s Notice. However this does not appear to be pursued as the submissions state that the Tribunal was able to “cure” this defect (Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248).

2. The submissions may have been hasty to concede in this regard. Section 119 of the Act provides for the obligations imposed on the Minister in relation to such notices issued under s.116. These obligations give particularity to any such notice, including the grounds for cancellation that appear to exist and the giving of particulars, and the type of invitation to be extended to the visa holder in these circumstances.

3. While this Court has no jurisdiction to review the decision of the delegate, as in this case this is a “primary” decision within the meaning of s.476 of the Act, any defect in the Notice, if not addressed by the Tribunal, may reveal error in the Tribunal’s decision.

4. If such a defect does exist then the Tribunal may be led to set aside the decision to cancel.

5. But in any event the claimed defect is said to be that the Notice did not give particulars as to the information which would be the reason for cancelling the visa. This was said to be pursuant to s.120 of the Act.

6. This complaint misunderstands the relationship between s.119 and s.120. What is to be provided in the notice is set out in s.119. Section 120 provides for relevant information to be given that, amongst other things, was not given by the visa holder and was not disclosed to the visa holder under s.119.

7. The Tribunal did address the giving of the Notice in its decision record (see [43] at CB 96). The Tribunal found that the delegate had given the applicant sufficient information, pursuant to s.119, to adequately understand and respond to the Notice. On the material before the Court this was reasonably open to the Tribunal to find. No error is revealed in the Tribunal’s decision in these circumstances. This part of the submissions does not assist the applicant with any issue that had any reasonable prospect of success before the Court.

8. Paragraphs 7 and 8 of the written submissions appear to address Ground 1. The submissions assert that the Tribunal sent the applicant a notice pursuant to s.359A of the Act, and that this was done on 19 March 2010. As the application for review to the Tribunal was not made until 26 March 2010, the Tribunal had plainly not entered into the conduct of the review and therefore could not have sent such a notice pursuant to s.359A.

9. Paragraph 8 of the submissions appears to refer to a misstatement in the Notice sent by the delegate. This was the notification of the delegate’s decision, which was made on 19 March 2010.

10. Paragraphs 9 to 20 are directed to grounds 2 and 3. The submissions at best can be understood as an argument that Condition 8104 requires an “averaging out” of the hours worked over the “whole period that the applicant is in Australia”, and not with reference to any one week as it appears was the approach taken by the Tribunal.

11. The submissions are addressed further below.

Ground One

1. The applicant provided no particularity in the application to explain his “grounds”. Without explanation ground one is meaningless. If the applicant seeks to assert some failure by the Tribunal pursuant to s.359A in asserting some failure to put information to him pursuant to that section, this must be rejected.

2. The information caught by s.359A(1) was all information that fell within one of the exemptions from that obligation in s.359A(3). In any event, 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.

3. The written submissions assert a breach of s.359A because of the notice sent by “the MRT” on 19 March 2010. This is clearly a reference to the Notice sent by the delegate. Such a submission goes far beyond having no prospects of success for the applicant, and is in fact a classic example of what is hopeless and bound to fail.

4. That part of paragraph 8 of the submissions that refers to a misstatement by the Tribunal in that Notice is of a singularly hopeless nature, given its factual inaccuracy.

5. The matter of the notice referring to “during any week” is more properly dealt with below under grounds 2 and 3.

Grounds Two and Three

1. The second and third grounds raise essentially the same complaint. The second alleges that the Tribunal failed to consider the situation and circumstances of the applicant’s breach of Condition 8104. In context, and on its own, this must refer to events occurring in the week of 1 February 2010, which led to the breach of Condition 8104, that being the demands of a passenger which delayed the applicant’s return to the taxi station. The third ground alleges that the Tribunal failed to consider the “real state of affairs” of the applicant. This appears to refer to what was set out in the adviser’s written submissions to the Tribunal.

2. On a plain reading of the Tribunal’s decision record, this complaint cannot succeed. The Tribunal considered the circumstances raised by the applicant (at [62] to [65] of the decision record), but did not accept that this altered the nature of the activity. Therefore the requirements of Condition 8104 continued to apply.

3. As the Tribunal noted, once satisfied that the applicant had not complied with Condition 8104, the operation of s.116(3) of the Act, and reg.2.43(2)(b) of the Migration Regulations 1994 (Cth), removed any discretion not to cancel the visa from the Tribunal ([68] at CB 102).

4. The thrust of the written submissions appears to be that the wording of Condition 8104, as it applied, allows for the reading down of the “literal” interpretation to a construction where any work over twenty hours in any one week can be averaged out over the entire period that the visa holder is in Australia.

5. This argument appears to derive from the words in the condition: “while the holder is in Australia”. Condition 8104 as it applied was in the following terms:

   “8104

   (1) Subject to subclauses (2) to (6), the holder must not engage in work for more than 20 hours a week while the holder is in Australia.

   (2) If the holder is a member of the family unit of a person who satisfies the primary criteria for the grant of a student visa, the holder must not engage in work in Australia until the person who satisfies the primary criteria has commenced a course of study.

   (3) If the holder is able to engage in work in accordance with subclause (2), the holder must not engage in work for more than 20 hours a week while the holder is in Australia unless subclause (4) or (5) applies.

   (4) Subclause (3) does not apply if:

   (a) the visa for which the primary criteria were satisfied is:

   (i) a Subclass 573 (Higher Education Sector) visa; or

   (ii) a Subclass 574 (Postgraduate Research Sector) visa; and

   (b) the course of study is a course for the award of a masters or doctorate degree that is registered on the Commonwealth Register of Institutions and Courses of Overseas Students.

   (5) Subclause (3) does not apply if:

   (a) the visa for which the primary criteria were satisfied is a Subclass 576 (AusAID or Defence Sector) visa; and

   (b) the course of study is a course for the award of a masters or doctorate degree.

   (6) In this clause:

   week means the period of 7 days commencing on a Monday.”

6. The argument is that the words (“while the holder is in Australia”) are superfluous in a construction of the condition that permits regard to any one week. A construction that the breach must be a continuing breach while the applicant is in Australia, and not just one week gives work to do to these words.

7. From here the leap of “logic” is that therefore the only relevant time for the consideration as to whether there is a breach is at the time of the visa cancellation. As at that time (in March 2010) the applicant had not worked more than 20 hours in that week, nor had he averaged more than 20 hours a week for the time while he was in Australia.

8. First, the emphasis on the words “while the holder is in Australia” is misplaced. With reference to the relevant statutory and regulatory scheme, clearly “temporary” visas are granted for a period of time. (In this case subclass 572: Schedule 2 to the Regulations.) The visa granted to the applicant has the capacity to be granted with the facility to enable the holder to leave Australia and return during the period of the validity of the visa.

9. The visa remains in force and is otherwise valid for the entirety of the period for which it is granted. A visa is not only the authority to remain in Australia, but the authority to travel to Australia as well: see s.29(1)(a) and (b). The restriction of work in the condition therefore only applies when the holder is in Australia. The visa remains valid and in force while the holder is outside of Australia, but Condition 8104 is engaged only while the holder is in Australia.

10. I cannot see that Condition 8104 or indeed any other part of the statutory and regulatory scheme supports the applicant’s argument. The preferred meaning of Condition 8104 is that the holder must not engage in work for more than 20 hours in any one week for any week that the holder is in Australia.

11. As Mr Johnson submitted, this is supported when regard is had to the whole of Condition 8104. For example, “week” is defined at 8104(6) as meaning the period of 7 days commencing on a Monday. Such a definition intends the decision maker to focus on specific periods starting on a Monday and ceasing on the following Sunday as opposed to any longer period, or more particularly as opposed to any “averaging” out.

12. It must also be said that the construction proposed would appear to make the condition unenforceable. It is difficult to conceive that the sanction of cancelling the visa, if any breach is found to occur (which clearly is part of the statutory scheme), would have any effect, or even, to use the words of the submission, have “work to do” if the relevant period for calculating the hours worked was averaged out over the entire period that the visa holder was in Australia.

13. With a visa limited as to time (as was the visa in the current case) such a construction would mean that that calculation and consideration of cancellation could not take place until the visa holder had ceased being in Australia. That is not “while in Australia”.

14. This means either while the visa holder is overseas or the visa has otherwise ceased as to have force or effect as to time. The scheme could not have allowed such a meaning with these consequences.

15. But in any event there is a far more powerful and binding answer to the submissions. At the hearing I granted leave to the parties to refer the Court to any relevant authorities.

16. Mr Johnson subsequently referred to two Full Federal Court judgments: Islam v Minister for Immigration & Citizenship [2007] FCAFC 66 (“Islam”) and Hossain v Minister for Immigration & Citizenship [2007] FCAFC 67 (“Hossain”). It is the case that the very same “averaging” argument proposed in the submissions has been plainly rejected by the Full Court on two occasions. (In Islam at [15] to [17] and in Hossain at [5] to [6].)

17. The state of the authorities means that the submissions did not just have no reasonable prospect of success, but were hopeless and bound to fail.

18. In all, there was no error in the Tribunal finding that a breach of Condition 8104 occurred with reference to the week commencing Monday 1 February 2010. Once having determined this, the compulsion to cancel the visa came into operation.

Conclusion

1. For Mr Al Ferdous to succeed the Court would need to, at least, discern jurisdictional error in the Tribunal’s decision. None is evident. Further, as set out above, the grounds of the application and the written submissions in support did not disclose any reasonable prospects of success. In all the application therefore must be dismissed.

Postscript: The Tribunal

1. It is the case that a different Tribunal member, even having regard to the extensive list of authorities to which this Tribunal member considered, may have come to a different view as to whether the 51 minutes worked in excess of 20 hours in one week fell within the meaning of “work”. I can understand that Mr Al Ferdous feels hard done by.

1. This Tribunal member did not. But given that it was reasonably open to make this finding, no legal error is revealed. It is certainly not open to this Court to intervene in these circumstances.

Postscript: The Legislative and Regulatory Scheme

1. I cannot leave this matter without the following. It is of course a matter for the Parliament to enact laws as it sees fit, and for the Minister to initiate regulations to give effect to these laws. It is not for me to comment.

2. But I ask that those who advise the Minister in these matters pause to consider whether the effect of the statutory and regulatory scheme was ever meant to effect the cancellation of a visa in circumstances where in only one week out of many, and on one day, a visa holder worked 51 minutes over the time allowed. Particularly in the circumstances presented by this case.

3. While I acknowledge that a line has to be drawn somewhere (20 hours, 25 hours or whatever), the lack of flexibility in this scheme, producing the outcome in this case, can only reflect poorly on our self-proclaimed image as an open society committed to the notion of a “fair go”.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: 

Date:  29 October 2010