Bhatia v Minister for Immigration
[2015] FCCA 409
•20 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHATIA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 409 |
| Catchwords: WORDS AND PHRASES – “Work”, “employed”. |
| Legislation: Migration Regulations 1994 (Cth) |
| Tikoisuva v Minister for Immigration [2001] FCA 1347 Xu v Minister for Immigration & Anor [2007] FMCA 285 |
| Applicant: | DINESH BHATIA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1159 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr M J Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
A writ of certiorari shall issue removing the record of the decision of the Migration Review Tribunal made on 10 April 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1159 of 2014
| DINESH BHATIA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Bhatia, a skilled residence visa.
Mr Bhatia applied for the visa on 8 March 2011. In order to be granted the visa that was sought, it was necessary that Mr Bhatia met the requirements of clause 885.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which required Mr Bhatia to achieve a score of 120 points when assessed against Schedule 6B to the Regulations. On 27 September 2013, the Minister’s delegate refused to grant Mr Bhatia the visa, having concluded that he achieved a score of 110 points only[1].
[1] Court Book (CB) 68
Mr Bhatia sought review of the delegate’s decision. It was plain at the hearing before the Tribunal that the central issue was the allocation of points for the purposes of the required points assessment. On 10 April 2014 the Tribunal affirmed the delegate’s decision[2] on the basis that Mr Bhatia achieved a score of only 110 points.
[2] CB 184-194
It followed that the outcome before the Tribunal was the same as before the Minister’s delegate.
The issue for resolution in these proceedings is the correctness of the Tribunal’s conclusion that Mr Bhatia was not entitled to any points under Part 6B.4 and Part 6B.5 of Schedule 6 to the Regulations because the relevant period of employment that he relied upon was required to be disregarded as that employment was undertaken in breach of a condition on his then student visa limiting the number of hours he was permitted to work.
The judicial review application
Mr Bhatia relies upon his judicial review application filed on 30 April 2014. There are three grounds in that application:
1. The Second Respondent made jurisdictional error by treating the words “being an activity which is usually remunerated” in the definition of “work” in r 1.03 of the Migration Regulations 1994 as applied in Condition 8105 required that the particular applicant’s work be remunerated.
2. The Second Respondent made jurisdictional error by finding or implying that the Applicant had breached Condition 8105.
3. Further or in the alternative to 2 above, the Second Respondent made jurisdictional error by treating paid or unpaid work done in breach of condition 8105 was not capable of being work for the purposes of r 1.03.
I have before me as evidence the court book filed on 30 June 2014. Mr Bhatia and the Minister made both oral and written submissions.
Consideration
The regulatory regime
The regulatory regime based upon the allocation of points pursuant to the relevant Regulations is both dry and detailed. The Minister’s submissions provide some insight into the relevant Regulations. The starting point is Part 6B.4 and Part 6B.5 of Schedule 6 to the Regulations.
Part 6B.4 Specific employment qualifications
Item
Qualification
Number of Points
6B41
The applicant nominated a skilled occupation for which 60 points are available and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 36 months in the 48 months
immediately before the day on which theapplication was made.
10
6B42
The applicant has been employed in a skilled occupation for a period totalling, at least 36 months in the 48 months immediately before the day on which the application was made
5
Part 6B.5 Australian employment qualifications
Item
Qualification
Number of Points
6B41
The applicant has been employed in Australia, in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made
10
6B42
The applicant has completed a professional year in Australia in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made
5
Regulation 2.26A(7) states that “employed” means “engaged in an occupation for remuneration for at least 20 hours per week”. Regulation 2.27C in turn states that:
In determining whether an applicant satisfies a criterion that the applicant has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:
(a) held:
(i)a substantive visa; or
(ii)a Subclass 010 Bridging A visa; or
(iii)a Subclass 020 Bridging B visa;
authorising him or her to work during that period; and
(b) complied with the conditions of that visa.
The relevant visa condition was 8105(2) (set out in Schedule 8 to the Regulations), which relevantly provided that a visa-holder “must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session”. “Work” is in turn defined in regulation 1.03 as “an activity that, in Australia, normally attracts remuneration”. In considering whether a particular activity constitutes “work”, regard must be had to the actual circumstances surrounding the activity, “including the motivations and agreements which have resulted in the performance of the activity, and the personal and economic context in which the activity is performed, including whether there is evidence of any remuneration actually being received”. The definition allows the decision-maker to find that the visa holder is “working” in breach of his or her visa notwithstanding that he or she is not found to have actually been remunerated, but only if “normally” a person in the same situation would receive a return or reward for their services by way of “remuneration”[3].
[3]Xu v Minister for Immigration & Anor [2007] FMCA 285 at [21]. To similar effect are the comments of Stone J in in Tikoisuva v Minister for Immigration [2001] FCA 1347, where her Honour said (at [11]):
Accordingly, in considering whether the domestic assistance that the applicant proposed to render to her brother would constitute "work", the MRT was required to decide if such assistance is an activity that normally attracts remuneration. I understand Einfeld J’s reference to "additional qualification" to mean that context (or motivation) may influence how the activity is described. His Honour’s point seems to be that house painting being done by a relative is a different activity from house painting being done by a professional painter. Another example might be the difference between a spouse and a stranger to the family doing domestic chores of the kind contemplated by the applicant. The MRT’s failure to consider this issue appears to be based on a misunderstanding of the meaning of "work" as interpreted by Einfeld J and was therefore an error of law, being either a failure to correctly interpret the applicable law or a failure to correctly apply the applicable law to the facts as found.
The combined effect of the above provisions is as follows:
a)in order to be awarded points under Part 6B.4 and Part 6B, a visa-applicant must show that he or she has been “employed” (that is, “engaged in an occupation for remuneration for at least 20 hours per week”) for a certain period of time before the making of the visa application; and
b)in considering this question, the decision-maker, however, is obliged to disregard a period of employment if the visa-applicant was in breach of his or her visa conditions during such period of employment.
In considering whether the applicant was in breach of his or her visa conditions, consideration must be given to whether the visa-applicant “worked” more than 20 hours per week, bearing in mind that “work” encompasses any activity “that, in Australia, normally attracts remuneration”.
The Tribunal’s assessment on the question of points allocation
In the present case, the evidence before the Tribunal was that during the period April to September 2007, Mr Bhatia worked as a commis chef at a Crowne Plaza hotel for a minimum of 20 hours per week. The evidence also was that the during this period Mr Bhatia worked unpaid (and the Tribunal accepted that it was unpaid) as a casual chef at the Ascot Motor Inn between 16 to 20 hours per week (although he did not work at all during May 2007 and worked up to 40 hours per week in June/July during term break)[4].
[4] CB 114-117, 155;173; 187 [15]
The Tribunal concluded that any “employment” (i.e. with Crowne Plaza) undertaken during May 2007 and August-October 2007 could not be counted because during this period Mr Bhatia was in breach of his visa conditions. The Tribunal concluded that Mr Bhatia was in breach of his visa conditions in April 2007 and August-October 2007, because his work with Ascot Motor Inn fell within the definition of “work” in regulation 1.03, which meant that Mr Bhatia was working more than 20 hours per week during the relevant period. In coming to this finding, the Tribunal was aware of the definition of “work” in regulation 1.03, and made a factual conclusion that working as a chef “is an activity which is usually remunerated”[5].
[5] CB 187 [15]
Having found that Mr Bhatia was in breach of his visa conditions in April 2007 and August-October 2007, the Tribunal concluded that the only period of employment that would count towards the period of employment for the purposes of Part 6B.4 and Part 6B.5 was the two months of employment as a commis chef at Crowne Plaza in May 2007 and June-July 2007.
Mr Bhatia’s contentions
As already noted, the Tribunal’s reasoning is based on two key propositions:
a)work in breach of condition 8105 (imposing a maximum of 20 hours per week) does not count at all; and
b)work is not counted unless it is remunerated.
Mr Bhatia’s submissions did not seek to challenge the second proposition but did challenge the first insofar as the Tribunal found a breach of the condition on the facts.
Mr Bhatia is aggrieved that he received a double detriment by relying upon his unpaid work at the Ascot Motor Inn. Not only was that work not counted because it was unpaid, but he was also taken (because of that work considered in combination with his paid employment) to have breached condition 8105 on his student visa and thus the whole of his paid employment over the period when his course of education was in session was not counted. The Tribunal’s key reasoning is found at [15] of its decision record[6]:
At the second hearing, when it was [put] to him that he worked in breach of condition 8105 and the employment could not be counted during that period as he was in breach of a condition of the visa held, the applicant advised that he had worked unpaid at the Ascot Motor Inn and was not aware that this was not permitted on the student visa. Following the hearing, the applicant’s representative has submitted that because the work at the Ascot Motor Inn was unpaid, it was not in breach of the visa condition 8105 as employment means ‘to be engaged in an occupation for remuneration for at least 20 hours weekly’. The representative then went on to submit that the applicant’s work experience at the Ascot Motor Inn was 9 months in total and, combined with 6 months at the Park Royal hotel and 6 months at the Killara Inn, totalled 21 months. The Tribunal rejects this submission. It acknowledges that the definition of ‘employee’, defined in r.2.26A(7), is as set out by the representative. However, as work undertaken which is not remunerated, and not for at least 20 hours per week, would not meet the definition of ‘employed’, any unpaid work, which was for a majority of the period he was employed at the Ascot Motor Inn, cannot be counted for points test purposes. In addition, the meaning of ‘work’, being the term used in condition 8105, ‘means an activity which is usually remunerated’ (r.1.03). The Tribunal finds that working as a Chef is an activity which is usually remunerated and any period of work which was in excess of 20 hours per week while the applicant’s course was in session would therefore be in breach of condition 8105. The effect of r.2.27C is such that any period of paid employment, even if less than 20 hours per week, cannot be counted during periods where his total hours of work exceeded 20 hours per week as he would have been working in reach of the conditions of the visa held at the time.
[6] CB 187
It is not clear what the “period of paid employment” is that must be disregarded. It might be only the period of the employment which is in breach of the visa condition which could be as little as a single week. It could be the entire period of the employment. The Tribunal at [16] took a middle course of counting the period of paid employment undertaken when Mr Bhatia’s course was not in session (on the basis that the condition on his visa then permitted him to work more than 20 hours per week). That aspect of the Tribunal’s reasoning was not challenged.
Mr Bhatia contends that the relevant inquiry is whether he complied with the conditions of his visa. The answer to that is either yes or no. Condition 8105 is not thereby read into the distinction of work or employment. If an applicant does not comply with the conditions of his or her visa, then no work undertaken during the term of the visa (or at least during the period of the breach) is counted.
Regulation 2.27C, to which the Tribunal referred to, only excludes employment if the applicant holds a substantive or bridging visa authorising him or her to work and he or she does not comply with the conditions of that visa.
At [15], the Tribunal stated that the effect of regulation 2.27C is that paid employment of less than 20 hours cannot be counted if there is voluntary work done which takes the total to more than 20 hours.
Mr Bhatia contends that this is not what is provided in regulation 2.27C. A person who works for less than 20 hours paid employment does not breach regulation 2.27C, because the person also engages in voluntary employment. Indeed, The Tribunal’s central proposition is that “unpaid employment does not meet the legislative distinction of employment”.
Further, Mr Bhatia submits that, if this is correct, then under regulation 2.27C, the 20 hours must be in paid employment. This is said to be the legislative purpose.
The Minister’s contentions
The Minister submits that the Tribunal’s conclusion was correct and that the challenge to its decision must fail. The Minister points out that there is a disconnection between the grounds in the judicial review application and Mr Bhatia’s written submissions and the Minister’s representative at trial dealt with those submissions as developed orally.
The Minister contends that the Tribunal made no finding as to whether Mr Bhatia was in breach of the condition on his visa. This is demonstrated by reference to [14] and [17] of the Tribunal’s reasons[7].
[7] CB186-187
Secondly, the Minister disputes Mr Bhatia’s submission that the Tribunal misunderstood regulation 2.27C given that regulation 2.27C can only be engaged if a person engages in paid employment for a period such that he or she breaches his or her visa conditions. As discussed above, unpaid work (having regard to the definition of work in regulation 1.03) can nonetheless constitute “work” for the purposes of regulation 2.27C in certain circumstances; circumstances which the Tribunal found existed in the present case.
Thirdly, the Minister takes issue with Mr Bhatia’s apparent contention that the Tribunal erred in concluding that “unpaid employment does not meet the legislative distinction of employment”. As noted above, the relevant statutory regime draws a distinction between “work” and being “employed” and the concepts are employed in different contexts: “work” is relevant to whether a person has breached visa conditions; whereas whether the applicant was “employed” is relevant to whether the applicant met the substantive requirements for the visa. A period of work may constitute work even if it is not paid[8]; whereas a person will only be “employed” if the activity engaged in is remunerated[9]. The Tribunal was well aware of the distinction between “work” and being “employed”, a distinction of some importance in the present case. The Minister thus contends that the Tribunal did not fall into error.
[8] regulation 2.27C; regulation 1.03
[9] regulation 2.26A(7)
Resolution
In my opinion, the outcome in this case turns upon whether the Tribunal erred in considering whether the unpaid work undertaken by Mr Bhatia at the Ascot Motor Inn is work which was “usually remunerated”. While it can be accepted that the work of a chef is usually remunerated, the circumstances in which the work is undertaken may have a bearing upon the relevant consideration. For example, the work of a chef undertaken at a charity event may well not be work which is usually remunerated. Mr Bhatia made a statutory declaration on 7 April 2014 for the purposes of the review before the Tribunal[10]. At [4] of that declaration he said:
During this employment, I voluntarily worked in the kitchen as a chef/cook at the Ascot Motor Inn from April 2007. I worked on volunteer basis as it was the requirement of the course I was doing. I had to provide evidence of 900 hours of work experience in order to apply for Skills Assessment at Trade Recognition Australia (TRA).
[10] CB 173-174
The Tribunal rejected at [9] of its reasons the proposition that Mr Bhatia was undertaking unpaid work at the Ascot Motor Inn as a course requirement. However, the Tribunal did not consider whether unpaid work undertaken for the purposes of meeting a skills assessment requirement for Trades Recognition Australia (TRA) was work which would be “usually remunerated”. The Tribunal did not reject Mr Bhatia’s proposition that the work was undertaken for the purpose of obtaining that skills assessment.
The Minister relies upon the decision of Smith FM of this Court in Xu v Minister for Immigration. While I do not disagree with the views expressed by Smith FM in that decision concerning the interpretation of the Regulations, it does not answer the specific question in this case, whether work undertaken for the purpose of obtaining a skills assessment from TRA is work which is “usually remunerated”. That was a question of fact for the Tribunal but the Tribunal made no decision on it. Rather, the Tribunal made a general decision that the work of a chef is usually remunerated. This is not a case where it can be said that the issue in dispute can be subsumed in a finding of greater generality because, as I have already said, the circumstances in which work is undertaken may well have a bearing on the question of whether the work is usually remunerated.
I find that at least Ground 1 in the application has been made out. The Tribunal fell into error by treating Mr Bhatia’s volunteer work as a chef as work which is usually remunerated without considering the particular circumstance, as asserted by Mr Bhatia, that the work was undertaken for the purpose of obtaining a TRA skills assessment.
It follows that Mr Bhatia should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 March 2015
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