AMANDEEP v Minister for Immigration
[2011] FMCA 757
•30 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMANDEEP v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 757 |
| MIGRATION – Migration review Tribunal – application to review – student visa – breach of condition 8104 – meaning of “work” for the purposes of condition 8104. |
| Migration Act 1958 (Cth), ss.116, 347 Migration Regulations1994, reg. 1.03 |
| Braun v MILGEA (1991) 33 FCR 152 Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 Department of Social Security v Danielson (1996) 44ALD 19 Dib v MIMA (1998) 82 FCR 489 Hollis v Vabu (2001) 207 CLR 21 Kim v Whitton (1995) 59 FCR 258 |
| Applicant: | AMANDEEP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | BRG 456 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 8 September 2011 |
| Date of Last Submission: | 8 September 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 30 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Burrow |
| Solicitors for the Applicant: | Rajesh Gopal Solicitors |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 3 June, 2011 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of six thousand two hundred and forty dollars ($6,240.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 456 of 2011
| AMANDEEP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application to set aside a decision of a migration review tribunal and, in practical terms, to have the review application remitted for rehearing according to law.
The issues identified by the applicant for determination by this court are:
a)Whether the tribunal had power to correct an error made by the Minister’s delegate that was a prerequisite to the exercise of the power to cancel the applicant’s visa;
b)Whether the tribunal committed jurisdictional error by failing to take account of the applicant’s evidence;
c)Whether the tribunal committed jurisdictional error by incorrectly interpreting the word “work” for the purposes of condition 8104 of the applicant’s student (Temporary) (Class TU) visa.
Ground one was abandoned at the hearing of the application. The applicant pressed grounds two and three.
Background
The parties agree about the background to these proceedings. The applicant is an Indian born student studying in Australia. He was granted a student (Temporary) (Class TU) visa on 1 March, 2010.
A condition of the applicant’s visa was condition 8104, found in Schedule 8 to the Migration Regulations 1994. Relevantly condition 8104 provides that the applicant “must not engage in work for more than twenty hours per week” while the applicant was in Australia.
On 12 November, 2010 a delegate of the first respondent issued a Notice of Intention to Consider Cancelling a Visa to the applicant pursuant to s.116 of the Migration Act1958. Item 9 of the notice of intention to cancel the visa outlined the possible grounds for cancellation. Item 9 provided:
The Department of Immigration and Citizenship has received information that you may have been employed in excess of twenty hours per week while you are the holder of a dependant student visa during June and July 2010. If this is the case you may be in breach of condition 8104 which is attached to your TU-573 student visa, number 8059563598987.
Information provided by your employer, who you confirmed to be “Black and White Cabs” indicates that you have worked in excess of twenty hours per week in a period of seven days commencing on Monday 21 June 2010 to 27 June 2010. The above evidence supports the contention that you have been working in Australia in breach of condition 8104 which is attached to your visa.
The applicant responded to the notice of intention to cancel the visa.
A summary of his response (as summarised by the minister’s delegate) is as follows:
The visa holder has advised:
That he did not know that he is unable to work more than twenty hours per week and was confused about condition 8104, however he has advised that he understands this information now. The visa holder advised that his mother has [a] heart disease and required money for an operation costing 25 Lakh. The visa holder advised that his main reason for residing in Australia is to pay for his spouse’s university fees and accommodation.
The delegate cancelled the applicant’s visa by reason of the applicant’s non-compliance with condition 8104.
The applicant applied to a Migration Review tribunal for review of the delegate’s decision pursuant to s347 of the Migration Act 1958.
The Tribunal
The tribunal affirmed the delegate’s decision to cancel the applicant’s visa. The tribunal had regard to certain records produced by Black and White Cabs which were provided to the Department and which were before the Minister’s delegate when the applicant’s visa was cancelled. The tribunal’s view was that the Black and White Cabs records indicated that, in the week commencing on Monday 21 June 2010, the applicant worked in excess of sixty hours.
Before the tribunal the applicant provided written submissions and gave evidence.
After being shown the Black and White Cabs records by the tribunal, and after the tribunal explained to the applicant the significance of the records, the tribunal invited the applicant to make comment about that information. The applicant asked for some time to consider his answers, but for reasons explained by the tribunal (and which were not the subject of criticism before me) the tribunal declined that request.
The tribunal stated that the records provided by Black and White Cabs indicated the applicant worked in excess of 60 hours per week during the week commencing 21 June, 2010. The applicant did not dispute that the records showed his start and finish times. He argued before the tribunal, and he argues before me, that he should not be considered as working for the whole of that time.
The tribunal put to the applicant that the times recorded in the Black and White cabs documents show that he was working “in excess of sixty hours” in the relevant week. The tribunal told the applicant that it inferred that the records “tend to suggest the applicant may have worked more than twenty hours a week” and that the tribunal could from the records conclude that the applicant had breached condition 8104 of his visa.
The applicant said to the tribunal that the Black and White Taxi records recorded the times at which he logged on and off from the taxi that he was admittedly driving. He said that he might sit in the taxi at the rank waiting for a customer and then he would get a job worth $10.00.
He said that he would then have to return and queue for another hour to get another $20.00 job and in those circumstances he would not work for more than twenty minutes per shift. He said that if he was recorded as working for eleven hours forty-six minutes he would not have actually worked for more than an hour that day. He said that every day was the same story and that he did not accept that he worked twenty hours per week.
The issue which thus confronted the tribunal was to determine whether for the purposes of condition 8104 the period over which the applicant performed “work” was the times that he was logged on and off as driving the relevant taxi or whether those periods were confined to those times when he had a fare paying passenger in his car.
The tribunal commenced its reasons for decision by setting out the version of condition 8104 which applied to the determination that it had to make. The tribunal then noted that the word “work” was defined in regulation 1.03 of the Migration Regulations 1994 to mean “an activity that in Australia, normally attracts remuneration.” The tribunal noted the effect of some authorities as follows:
a)The definition provided in regulation 1.03 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 MILGEA (1991) 33 FCR 152 at 156.
b)That activity of a domestic or social character should not ordinarily be regarded as work. The assessment of whether an activity should be regarded as work is a matter of evaluation and degree.
c)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 purpose. The test to be applied is an objective one, mainly, whether the “activity” performed by the individually normally attracts remuneration in Australia: Kim v Whitton (1995) 59 FCR 258 at 268.
d)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 of the facts of a case, assist in determining whether a particular activity undertaken voluntarily is one that normally attracts remuneration: Dib v MIMA (1998) 82 FCR 489 at 495-496.
Consideration
I will deal with the last ground of review first – the definition of “work”.
The tribunal’s reasons for decision show that the applicant did not contest that he was operating a taxi for the periods for which the Black and White cab records indicated he was logged on. Rather, the applicant disputes that he was performing “work” for the purposes of condition 8104 for the whole of the time that he was logged on.
He says that for all the times that he was logged on but not conveying a fare paying passenger in his taxi, he was not performing “work”. Thus, during the times when he was logged on but he was engaged in activities such as such as filling up his taxi with petrol, waiting in taxi ranks, washing his taxi, attending to mechanical matters and attending to flat tyres, he argues that he was not performing “work” for the purposes of condition 8104. The tribunal rejected that approach and considered that he was performing “work” for the purposes of the condition whenever he was logged on.
Before me, the applicant argues that the definition of “work” requires a consideration as to whether what the person does is something for which a person is normally remunerated. The applicant points out that the High Court in Hollis v Vabu (2001) 207 CLR 21 at 44 comment on working arrangements (in the context of package delivery) as follows:
“ ... The method of payment, per delivery and not per time period engaged, is a natural means to remunerate employees whose sole duty is to perform deliveries, not least for ease of calculation and to provide an incentive more efficiently to make deliveries ... “
Hollis v Vabu, in the present context, is not particularly helpful. The issue in that case was whether a bicycle courier was an employee of the courier company that organised deliveries for the bicycle courier, or an independent contractor. The proceedings arose out of an accident wherein the plaintiff in the proceedings sustained injuries. The plaintiff sought to fix the courier company with liability for the negligent acts of the bicycle courier. He could only do that if the bicycle courier was an employee of the company. The High Court determined that the bicycle courier was an employee of the courier company and the plaintiff ultimately succeeded. Taken in context then, what, if anything, the above passage relied upon by the applicant demonstrates is that even if remuneration is fixed according to a particular aspect of the activities encompassed within a person’s employment (such as the delivery of a package), the person may nonetheless be an employee at times when they are not engaged in that particular aspect of their work.
The applicant submits that is, “it is not unusual or inappropriate to actually address the specifics within a relevant industry as to where remuneration is given effect to”. Working as a taxi driver, paid according to actual fares or actual remunerated work undertaken, it is argued, is consistent with the definition contained in the Regulations. The applicant submits that the only evidence before the tribunal as to “the industry” was the evidence of the applicant. His evidence was consistent with “an accepted analysis of ‘work’”.
In my view, however, the interpretation of the word “work” by the tribunal was correct. The interpretation contended for by the applicant is too narrow and seeks to draw an artificial distinction between the activities engaged in by the applicant for the purpose of earning remuneration as a taxi driver. Common sense dictates that activities such as filling the vehicle with petrol, changing flat tyres and attending to other maintenance are all incidental aspects of earning remuneration by the conveyance of fare paying passengers.
I accept the first respondent’s submissions that the mere fact that someone is not remunerated for a specific task does not mean that that task is not “work”. For example, it is not unheard of for employees to work unpaid overtime, which either goes unrewarded, or is rewarded in some way other than by remuneration (such as time in lieu).
In Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472 Gummow J was dealing with an application that, in part, turned upon the meaning of “employment” where it occurred in s.6 of the Migration Act 1958 (as it then stood). His Honour reasoned:
However, the first point requiring attention is the reference by the delegate to the applicant having worked in Australia without permission, something said to be inconsistent with his status as a visitor. … In the present case, the condition was, as I have indicated, “employment prohibited without written permission of an authorized officer”. It is submitted for the applicant that the pursuit of his vocation as a priest of the Roman Catholic Church does not involve him in “employment” within the meaning of a condition in these terms, so that the delegate fell into an error of law in construing that condition as it applied to him. The applicant further contends that the material before the delegate plainly indicated that his activities in this country had been in pursuit of his vocation as a priest.
I admitted into evidence, on the footing that it was indicative of the manner in which a priest in the Roman Catholic Church might discharge his office, the following passage from an affidavit sworn by the applicant in these proceedings on 16 February 1989:
I consider that a Catholic priest must be available 24 hours a day to help people and encourage and assist spiritually those persons in need. The responsibility of a priest comes with ordination to the priesthood itself and as such a priest does not expect to work regular hours as in any other field of labour. In performing his duties a priest does not charge a fee and the very office itself makes the priest responsible to God. Whilst in Australia, I have never received a wage/salary in order to sustain my life. My day-to-day needs have been provided through the Order of St Charbel which is a sub-agency of the Marian Work of Atonement Society Ltd. My assistance in the establishment and day-to-day operation of the Order of St Charbel has been done privately and without fee using my knowledge and experience as a parish priest and as such I do not consider that I have ‘worked in Australia without permission’.
In this passage the applicant stresses the irregular hours in which a priest performs his duties and the absence of a wage or salary in the ordinary sense of that term. However, as the definition of “employment” in the Oxford English Dictionary, 2nd ed, (1989) shows, the ordinary usage of that term includes a business or an occupation. In my view, the sense of the condition imposed in this case pursuant to s 6(6) of the Act is that the holder of the temporary entry permit is prohibited, without written permission from an authorised officer, from engaging in employment, not only in the sense of regular employment as a member of the general workforce, involving receipt of a wage or salary, but also in the sense of pursuit of any business or occupation. The pursuit of the vocation of a priest in the applicant's church would, in my view, properly be regarded as the following of an occupation. Further, in my view, to engage in one's regular occupation is to work, whether or not one's labour is in return for a wage or salary in the ordinary sense. Accordingly, in my view, the decision-maker did not fall into error when she gave weight “to the fact that the applicant had worked in Australia without permission”.
(my emphasis)
The applicant’s reasoning is inconsistent with the approach taken by Gummow J as set out above, albeit in relation to a different visa condition. His Honour’s remarks are, nonetheless highly persuasive. The receipt of remuneration for one’s efforts is not determinative of the issue. Nothing in Hollis v Vabu (above) is inconsistent with that approach.
In my view the tribunal did not fall into error, let alone jurisdictional error, when it determined that the applicant had engaged in “work” during the times that he was recorded as logged on in the records of Black and White Cabs.
As to the second ground of review, the applicant contends that the records provided by Black and White cabs did not state that the applicant worked for the periods for which he was recorded as being “logged on”, nor that he was remunerated for those times worked, nor that it is normal for persons engaged in the industry activity to normally be remunerated according to the log-on and log-off times. The applicant submits that by acting in the absence of “actual evidence” in respect of the work undertaken by the applicant, the tribunal erred. The applicant further submits that reasonable enquiries could have been made by the tribunal from the Taxi company as to industry practice, as to actual job logs and as to actual remuneration paid to both the applicant and industry employees generally.
However, the applicant’s submissions rely upon the concept of “work” being confined to the performance of remunerated activity. The term “work” for the purposes of the visa condition is not so confined. The applicant gave evidence of the activities he performed while he was “logged on” with his taxi. All of those matters are within the concept of “work” as discussed above. They were part of his occupation as a taxi driver or incidental to it. The tribunal had not only the direct evidence of the applicant’s log-on and log-off times for the taxi, but also his evidence as to what he did during those times.
I accept the first respondent’s submissions that to the extent that the tribunal’s decision rests upon inferences, it was well open, as a matter of law and of fact in this case, to draw the necessary inferences.
In Department of Social Security v Danielson (1996) 44ALD 19 Cooper J stated:
In order for s 1224(1) to have any application in the instant case, the applicant had to establish, in the first place, that the respondent had made statements or representations and the content of those statements or representations. Without the continuation forms, and in the absence of any evidence from the respondent as to what she declared as gross income on those forms, there was no direct evidence of the statements or representations which the respondent made. However, that there is no direct evidence of a fact does not necessarily mean that there is no evidence of a fact. Courts and tribunals are frequently asked to infer the existence of a particular fact from the existence of a series or number of other facts which, taken together, suggest that the existence of the particular fact in question is more probable than not. The particular fact (the principal or ultimate fact or factum probandum) is inferred from the existence of the other fact or facts (the evidentiary fact or factum probans). Proof of a fact in issue is legitimately undertaken in this way (see generally Wigmore on Evidence, Tillers Rev 1983, Volume lA, pp 30, 31; Cross on Evidence, Third Australian Edition 1986, paras 1.20-1.62; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; Edward J Sweeney & Sons Inc v Texaco Inc 637 F2d 105, 115-6 (3d Cir 1980), cert denied, 451 US 911 (1981)
I accept the first respondent’s submissions that to the extent that it did so, the tribunal was entitled to draw inferences from the Black and White Cabs records that the applicant had been in a taxi, working for Black and White Cabs in the manner described in his own evidence, between the log on and log off times specified in the records.
The applicant points out that he gave evidence that he was not doing work for which he was remunerated. He says that no consideration was given by the tribunal to his credit. He submits that given the evidence was fundamental to a consideration of the issue it would have been necessary for the tribunal to expressly address the applicant’s credit. The applicant further submits that given the availability of simple enquiries into matters going to the centre of the issue and the failure of the tribunal to enquire into them the tribunal’s decision was a constructive failure to exercise jurisdiction.
The view that the tribunal correctly took of the width of the word “work” determines these issues against the applicant. That only certain aspects of his activity associated with driving taxi attracted remuneration is, in my view, beside the point. The applicant’s credit was not in issue and the tribunal had no occasion in the circumstances of this particular matter to review the applicant’s credit. Indeed, it accepted his evidence, although not the legal conclusions that flow from an application of his evidence to the legal position established by the Migration Act1958 and Regulations. Moreover, leaving aside the issue as to whether the tribunal was bound to make further inquiries, in the circumstances so this case, no further inquiries were necessary.
Conclusion
The applicant does not establish that the tribunal’s decision is attended by jurisdictional error. His first ground of review was conceded to be unable to succeed in light of the relevant authorities. The other two grounds of review fail for the reasons set out above.
The application for review must be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date: 30 September 2011
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