Dib v MIMA

[1998] FCA 415

GHASSAN DIB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 424 of 1997
FED No. 415/98
Number of pages - 11
Migration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

EINFELD J

Migration - application for extension of subclass 686 tourist (long stay) visitor visa - refusal - condition that no work be performed in Australia - test of whether work is performed - relevance of purposes for which activity is done - relevance of expressions as to future intent.

Words And Phrases - "work"

Migration Act 1958 ss 475, 476

Migration Regulations 1994 reg 1.03, Schedule 2, Part 686, Schedule 8, condition 8101

Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472

Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50

Braun v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 152

Kim v Witton & Anor (1995) 59 FCR 258

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160

Bretag v Immigration Review Tribunal (unreported, 29 November 1991)

Re Cecil (IRT Decision 8469, 30 December 1996)

SYDNEY, 2 December 1997 (hearing), 22 April 1998 (decision)

#DATE 22:4:1998

Appearances

The Applicant appeared in person.

Counsel for the Respondent: Ms Victoria A. Hartstein

Solicitor for the Respondent: Australian Government Solicitor

The Court:

1. Upholds the application for review.

   2. Sets aside the decision of the Immigration Review Tribunal of 30 April 1997.

   3. Orders that the applicant's application for an extension of his visa be remitted to the Tribunal for redetermination according to these reasons for judgment.

   4. Orders the costs of the applicant to be paid by the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EINFELD J

INTRODUCTION

The applicant, Mr Ghassan Toufic Dib, is a Lebanese citizen. In Athens, on 5 June 1994, he obtained what is rather ominously called a subclass 673 close family visitor visa (673 visa). That visa, valid for multiple entries into Australia until 5 July 1995, operated as a temporary entry permit to enable the applicant to remain in Australia for periods of two months at a time until 5 July 1995. The applicant first entered Australia on 23 July 1994 and departed Australia within the two months allowed on 27 August 1994. The applicant re-entered Australia on the same visa on 4 March 1995. On 26 April 1995, prior to the expiry of the two month period, he applied for and was granted a subclass 686 tourist (long stay) visitor visa (686 visa) valid until 21 October 1995. On 12 October 1995, the applicant applied for and was granted an extension of this visa until 12 February 1996. On 13 February 1996 the applicant applied for a further extension of this visa, which was refused by a delegate of the Minister on 19 February 1996. Both the 673 and 686 visas contained a mandatory condition that the holder not engage in any work in Australia.

The Migration Internal Review Office (MIRO) affirmed the delegate's decision on 1 April 1996. On 30 April 1997, the Immigration Review Tribunal (the Tribunal) affirmed the decision of the delegate not to grant the extension sought. By application of 3 June 1997 the applicant sought judicial review of the Tribunal's decision. Although the application for review was more broadly or vaguely pitched, it became obvious at the hearing that the only real point of law on which the applicant could obtain judicial review was if the decision by the Tribunal that the applicant had engaged in, and would continue to engage in, work in Australia was erroneous.

THE LEGISLATION

There was and could be no dispute that the decision of the respondent is judicially reviewable within the meaning of paragraphs (a) and (c) of section 475(1) as a decision of the Tribunal or as a decision relating to a visa. The grounds upon which a person aggrieved by such a decision may seek its review are found in section 476:

476(1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b)that the person who purported to make the decision did not have jurisdiction to make the decision;

(c)that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f)that the decision was induced or affected by fraud or by actual bias;

(g)that there was no evidence or other material to justify the making of the decision.

Subsection (2), to which subsection (1) is subject, has no immediate relevance. The application for review did not specify the ground on which the applicant was relying to challenge the decision, but at the hearing it became apparent that the issue for determination was whether the Tribunal had erred, pursuant to section 476(1)(e), by incorrectly interpreting the applicable law or by incorrectly applying the law to the facts.

The relevant criteria for a 686 visa are found in Schedule 2, Part 686 of the Migration Regulations 1994 (the Regulations):

686.21 Criteria to be satisfied at time of application

686. 211 (1) The applicant:

(a) seeks to visit Australia, or remain in Australia, as a visitor:

(i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or

(ii) for another purpose other than a purpose related to business or medical treatment; and

(b) either:

(i) has adequate funds, or access to adequate funds, for personal support during the period of the visit; or

....

686.6 CONDITIONS

686.611 In the case of a visa granted to an applicant who meets the requirements of subclause 686.211(4): conditions 8201 and 8205.

686.612 In any other case: conditions 8101, 8201 and 8205.

....

In this case it is accepted that the applicant had to meet condition 8101 found in Schedule 8 to the Regulations:

The holder must not engage in work in Australia.

Regulation 1.03 provides that:

'Work' means an activity that, in Australia, normally attracts remuneration.

THE FACTS

The applicant's father is deceased but his mother and four siblings reside in Lebanon. Before coming to Australia he worked in the Lebanese Embassy in Athens as an administrative technician for the "Lebanese equivalent of Telstra". He took leave from this job to come to Australia to see his family. The purpose of the applicant's second visit to Australia on 4 March 1995 was to visit his two sisters who reside in Australia, viz. Dolla Farah in Melbourne and Katia Metry in Sydney. Firstly, he visited Dolla in Melbourne and then came to Sydney to see Katia. At the time, Katia was expecting her second child with the possibility that she would encounter problems with the pregnancy, while her husband Rodger Metry, the applicant's brother-in-law, was sick with diabetes which sometimes resulted in his hospitalisation. The applicant told the Tribunal that his main purpose for visiting Katia was "to support her with the children and assist her with her husband when he required hospitalisation and with shopping, nothing else". The applicant's 686 visa on 26 April 1995 was apparently granted to permit the continuation of this assistance. His further extension on 12 October 1995 was apparently granted to allow him, as godfather, to attend the baptism of Katia's by then newborn baby. For all of this time, he was aware that he was not to engage in any work.

However, when the applicant applied for the further extension on 13 February 1996 at The Rocks branch of the Minister's department, he was apparently advised by the officer to whom he spoke to request permission to work in the application for the extension. Somewhat ironically in the circumstances, the delegate's rejection of the application was based on the assistance already given by the applicant to his brother-in-law, which the applicant volunteered as a means of revealing a truthful account of the background to his application for permission to work. He also submitted with the application letters indicating his intention to work for his brother-in-law if granted permission to work. This material led the delegate to the belief that the applicant would not comply with the visa condition prohibiting him from working.

The evidence before the Tribunal was that Rodger owns and operates a tyre business in Penrith, and had done so for four years up to that time. Over the previous two years the business had suffered because of his illness. He employs two permanent staff and one person on a part-time basis. Katia helps manage the business, specifically by doing the bookwork, picking up the takings every day and handling the paper work at home when her husband is sick. A letter from Rodger, referred to only indirectly in the Tribunal's decision, told of how in the eighteen months prior to February 1996 he had engaged a number of employees but had found them unsatisfactory. He was hoping that the department would grant the applicant permission to work, because as a family member whom he could trust, Rodger felt that the applicant would be of great assistance to him in his business.

Katia and Rodger have two young children, both of whom were under three years in February 1996. Rodger is insulin dependent and also suffers from asthma. He needs constant supervision and on occasions requires hospitalisation. Since his arrival in March 1995 the applicant has strongly supported his sister and her family as they sought to cope with the strain and burden of Rodger's illness. His sister had lost considerable weight through worry and both Roger and Katia stated that they could not cope without him. Much of the assistance he has given has been purely domestic, such as helping Katia to look after the children and driving Rodger to doctors' appointments. There can be no argument that these are the types of favours any relative would perform for his family in difficulties and cannot be "work" as defined in the Regulations.

Nevertheless, the Minister sought to argue, albeit a little tentatively, that even this assistance amounted or might amount to "work" because the applicant was being fed and housed by the Metrys but in my opinion that argument is completely untenable, as would be any suggestion that Katia was "working" for Rodger when she performed clerical tasks for the business. Moreover, it is the assistance the applicant gave or hoped to give to his brother-in-law with regard to the tyre business that actually caused the department to refuse his visa extension, not help in and about the home or to Rodger. The evidence given to the Tribunal established that the applicant drove Rodger to work and on occasions had driven by himself to pick up tyres for the business. It appears that when Rodger was not in hospital, the applicant spent time at the business supporting and looking after him, or in the words of Katia, "looking out for her husband". During the occasions when Rodger was hospitalised, the applicant stayed in the shop for periods to supervise. When asked by the Tribunal whether he had worked at his brother-in-law's shop, he stated, "I never worked for my brother-in-law", and "I did not work at his shop". The nature of the applicant's "supervision" of the tyre business is not at all clear from the evidence. He obviously has some knowledge of the business, but the evidence does not show whether he attended daily or nearly daily or only one day per week.

Ms Kathy Metry, Rodger's mother, was also asked whether the applicant helped her son manage the shop, to which she replied that the applicant "helped him, in that he was always beside him and gave him support". The business could not afford to employ someone to take over from Rodger and it was therefore accepted that the business would be in great difficulties without the assistance of the applicant. There was some evidence that Kathy Metry was intended to take over the tyre business once her own business was sold and that the applicant's assistance was therefore required only until that time, but this development did not occur. The evidence demonstrated, and the Tribunal appears to have accepted, that despite the applicant having given assistance to the Metry family since early 1995, he has not been paid at any time for the assistance he has given. He has an irregular income from an olive grove and regular rent from a house he owns in Lebanon and he does not appear to have had any difficulties in supporting himself.

In his application to MIRO, the applicant said he had visited tourist attractions in Sydney and a relative in Adelaide, but did not indicate when these activities occurred. The applicant also stated he had bought a car for touring in Australia but was still in possession of $4,000. These statements inferred that the applicant had engaged in tourist activities contemporaneously with the assistance he provided to the Metrys and was considering further travel around Australia.

The question of law on this review is therefore whether a conclusion was open to the Tribunal that the type of activity undertaken by the applicant could or did amount to "work" within the meaning of the regulations.

THE MEANING OF "WORK"

The definition of "work" in regulation 1.03 was inserted into the Regulations on 17 September 1991 apparently as a consequence of the decision of a Full Court of this Court (Spender, French and von Doussa JJ) in Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50. In the absence of a statutory definition at that time, the Court held that the word be accorded its ordinary meaning in common usage and adopted the Macquarie Dictionary's definition of work: "exertion directed to produce or accomplish something; labour, toil", and its definition of employment: "a job, esp [sic] that by which one earns a living". The Court held at 58:

It is a term which frequently connotes activity of the mind or body undertaken in exchange for monetary reward, and may aptly be used to describe a person's occupation or employment, which again will usually be pursued by that person for monetary reward. The payment of a monetary or other material benefit will be a strong indication that the activity undertaken is "work". But monetary reward is not a necessary component of "work" which has a wider meaning in the Act: see Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472.

Just as in some cases the pursuit of an activity for the purpose of gaining a livelihood or monetary reward will lead to the conclusion that the activity constitutes "work", there will also be cases where an activity is so clearly in pursuit, for example, of leisure or a hobby that beyond question no element of "work" in the ordinary sense of the term will be involved. Between the two extremes will fall cases where no particular factor is conclusive. In these case considerations such as the length of time an activity is pursued, the nature and the purpose of the activity, other activities being pursued more or less contemporaneously with the activity in question, and the obligation of the person to undertake the activity, may bear on the decision whether the activity is fairly to be described as "work". In the end, the decision is one of fact and degree which must be decided in all the circumstances of the case. Decisions in decided cases will assist in elucidating the limits of the meaning of "work" as used in the Act, but it is not possible to lay down a universal test. The term "work", in the abstract, and in the context of the Act, is probably incapable of precise definition.

The Full Court observed at 59 that:

.... the domestic, social or recreational purpose of an activity might, in association with all the facts of a case, provide ... some guide to what activities do not constitute work.

In Braun v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 152, Justice French commented at 156 that the definition adopted in Montero was wider than the new definition because the definition that now applies has the rider that it is an activity that "normally attracts remuneration ...". On the effect of this new rider on the classification of an activity that did not in fact attract remuneration, Justice French stated at 156:

That [the activity] was without remuneration does not take it outside that category. It is necessary and sufficient that it be an activity which normally attracts remuneration....It may be that circumstances can arise in which persons engage in activity of a domestic or social character which for the reason expressed in the Montero case should not be seen as falling within the notion of work as used in the Regulations. The assessment of work-like activity as purely domestic or social is a matter of evaluation and degree.

In Braun, the applicant had taken up an activity that had previously been done by someone who had received monetary reward. That the applicant performed the duties of cook on a station property without remuneration and for the purposes of work experience did not take it outside the category of "work".

In Kim v Witton & Anor (1995) 59 FCR 258, the applicant, who was a cartoonist and illustrator in Korea, provided graphic artwork for a Korean language learning project of the NSW Department of School Education on a regular basis for several months for which he received only his expenses. In reaching the conclusion that the activity performed by the applicant amounted to "work", Justice Sackville pointed out at 269 that:

... just as in Braun, it was clear that one of the applicant's motives, if not his only one, was to demonstrate his skills as a graphic artist, to encourage the Department to offer him paid employment.

As was recognised in Montero at 58:

The term 'work', in the abstract and in the context of the Act, is probably incapable of precise definition.

But the primary motive in Kim for performing the activity, as in Braun, was commercial -- the gaining of work experience or the chance to demonstrate skills in the hope of obtaining paid employment.

In my opinion, the definition in regulation 1.03 is capable of a variety of interpretations depending upon what factors are taken into consideration and therefore cannot be applied without additional qualification. In other words, 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 ordinarily attracts remuneration. For example, a person visiting his brother and family may help in painting his brother's house. Because house-painting is often "work" performed for remuneration does not mean that it is not also undertaken as a domestic activity by the owners of the house being painted or by their relatives or friends. Similarly, a son or daughter of the owner of a car may receive pocket money or some assistance in kind, such as the periodic use of the car, in return for washing it every week, or may receive nothing other than the gratitude of the relevant parent. Gardening or other household tasks may be done on the same basis. That this type of activity may also be done for reward by a professional car washer, gardener or domestic assistant where it is undoubtedly "work" does not mean that when done by the sons or daughters, it is "work" in the relevant sense by them.

Thus to determine whether in a particular circumstance the painting of a house or other like activity constitutes "work", all the facts peculiar to the case are to be taken into account and the considerations outlined in Montero and subsequent cases may be used to assist in the determination. If this undertaking is not performed, the definition in regulation 1.03 cannot be applied consistently or sensibly to situations that do not fall exclusively into one of the two possibilities.

THE TRIBUNAL'S DECISION

The Tribunal gave consideration to the documentation submitted with the application, the departmental file and sworn evidence given at the Tribunal hearing by the applicant, his sister Katia and her mother-in-law Ms Kathy Metry. The Tribunal described the evidence of the applicant and his witnesses as vague but it made no findings as to the truthfulness of their evidence. In the circumstances it should be assumed that the Tribunal recorded in its reasons the accepted evidence it considered relevant to its decision. Even so, its conclusions are brief and, in certain respects, not entirely clear. Its findings of fact are limited to its conclusion that the applicant engaged in work but if the questioning of the witnesses throughout the hearing was similar to the vague questions quoted in the Tribunal's conclusion, it is plausible that more direct questions as to the frequency of the applicant's visits to the tyre business and the types of duties he performed there would have elicited more conclusive evidence.

In affirming the delegate's decision, the Tribunal concluded:

While the applicant and witnesses stated that he was not paid for the activities mentioned above, the Tribunal notes those activities he performed are such that he 'worked' in Australia.

'Work' is defined in regulation 1.03 to mean 'an activity that, in Australia normally attracts remuneration'. Given the circumstances and the evidence in this matter, the Tribunal is not convinced that he will not 'work' again while in Australia.

It is clear from the evidence and material before the Tribunal that Mr Dib does not seek extension for a genuine visit but his purpose is to render assistance to his sister and brother-in-law (see Re Cecil (IRT Decision 8469, 30 December 1996)).

Given the above, the Tribunal finds that Mr Dib has breached the condition of his visa in that he has worked in Australia. He therefore fails to satisfy clause 686.213(b) of the Regulations. Further, the Tribunal on balance, is not satisfied that Mr Dib would comply with the conditions of the visa sought were it to be granted. He is therefore unable to satisfy subclause 686.221(2)(g)(iii).

The Tribunal thus not only affirmed the decision of the delegate but added the finding that the applicant had already engaged in "work" in Australia and had thus substantially breached the terms of his current visa. This additional finding prevents the applicant applying for any other types of visas because it is a condition of a 686 visa, indeed it seems to be a standard provision for all temporary visas, that the conditions of previous visas shall have been substantially complied with. The Tribunal also repeated the delegate's conclusion that he would continue this "work" if the visa was extended.

THE TRIBUNAL'S INTERPRETATION OF WORK

There are several problems with these conclusions, of which I will refer to three. First. The applicant was not paid for the assistance he gave, but he did spend some of his time at or in connection with the family's business doing things that would otherwise be done by Rodger or an employee for reward. The circumstances peculiar to this case thus place the assistance given by the applicant in the grey area between work done for the purpose of gaining remuneration or a livelihood and activities that are purely in the pursuit of personal satisfaction or compassion. Yet when read as a whole, the Tribunal's reasons applied the definition in regulation 1.03 abstractly or in isolation, only giving consideration to the activities performed by the applicant and whether or not he received remuneration for the assistance given. Indeed they referred to the applicant's lack of pay as the only factor weighing against their conclusion. The decision that the applicant had "worked" in Australia makes no reference to the case law on the interpretation of "work" as defined in the Regulations. Moreover, there was a range of factors, most importantly the applicant's sense of moral obligation towards his family and his purely compassionate and domestic motives, that should have been factored in to the Tribunal's decision.

The cases establish that the question whether an activity is "work" requires going beyond the nature of the activity in question to the particular context of the assistance provided; they provide a guide as to what type of circumstances may influence the determination. In my opinion, the following factors are important in determining whether the applicant engaged in "work":

1. At the time of the hearing the applicant had provided a variety of assistance to the Metry family for over two years, both prior to and after a 686 visa was granted and later extended without contest by the Minister's department.

   2. He received no monetary reward for his assistance and receives a substantial independent income from overseas.

   3. If he did receive food and lodging from the Metry family without contributing money -- and there is no evidence either way on this matter -- it could not be said to be anything more than the normal hospitality offered by a family to a visiting relative.

   4. The obligation the applicant felt was not based on contract but on family loyalty. It is quite clear that he would have felt extremely disloyal and guilty if he had not attempted to help his sister and brother in law in every way possible within the limits of his visa.

   5. Given that he is a trained administrative technician on unlimited leave from his job, he has no interest in gaining work experience in a tyre business and was not performing the services to secure future employment. The purpose of the applicant's activities at the tyre business was purely to help his family in their time of need. His motives were entirely domestic and kindly.

   6. The applicant had engaged in tourist activities whilst providing the assistance and had separately visited at least two other relatives interstate.

   7. The applicant and his family were all aware of the condition on his visa which prohibited "work" and they intended that he comply with those conditions.

   8. In this application for extension under review, the applicant applied for permission to work for the first time and thus voluntarily drew attention to his past activity, not merely his proposed future intentions. Obviously if he could gain permission to work it was intended that he take on a more expanded supervisory role of Rodger's business when Rodger was unwell, but if he did not, he would prefer to stay to help the family over a difficult period of struggle.

Once these considerations are taken into account -- a process that is required in equivocal factual situations such as this -- the applicant's activity cannot in my view be described as "an activity that, in Australia, normally attracts remuneration". In my opinion the Tribunal erred in law by applying regulation 1.03 without any consideration as to how this definition should be interpreted and applied in law.

THE FINDING THAT THE APPLICANT WOULD ENGAGE IN WORK IF HIS VISA WAS EXTENDED

Second. Having determined that the applicant had engaged in work in Australia, the Tribunal went on to conclude that given the circumstances and the evidence before the Tribunal, it was not convinced that the applicant would not work again while in Australia. This conclusion was based on the Tribunal's erroneous interpretation of "work" and on inferences it drew from the applicant's expressed intention to work if he obtained permission to do so. This reasoning requires brief discussion.

When the applicant applied for the extension, it appears that he was led to believe by the immigration official to whom he spoke that he should seek permission to work despite knowing that his 686 visa prohibited work. As a consequence of this occurrence, a number of statements and letters were submitted to the Minister's department indicating why permission to work should be granted. It is apparent from the decision of the Tribunal that it placed considerable weight on these statements as to future intent. In its ensuing reasoning the Tribunal noted the legal proposition that:

... [a] Tribunal may have regard to the subsequent history of a matter in determining a question of fact at the time of application, so long as it tends logically to show the existence or non-existence of facts relevant to the issue to be determined...

referring to Bretag v Immigration Review Tribunal (unreported, 29 November 1991) in which Justice O'Loughlin quoted Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 to that effect. The only plausible application of this principle could have been in an analysis of the applicant's future intention to work if he was granted permission to work. Yet the Tribunal apparently determined that these statements tended to show as a matter of logic that he would engage in work even if he not receive departmental permission to do so and that he was not therefore seeking the extension for a genuine visit.

I respectfully disagree with this finding. Statements by a person that he wishes to receive a permit to allow him to work in Australia do not tend logically to show that if he is subsequently refused permission to work, he will nevertheless engage in "work", still less that he has already engaged in "work". In other words, such statements may demonstrate the applicant's desire to work, but do not tend at all to show that he would breach his visa conditions to achieve his wider desires. No doubt he did intend to undertake much more extensive duties at Rodger's business if given permission to work. For example, a letter prepared and signed by Roger and Katia Metry dated 5 February 1996 which accompanied the application stated in part:

It is therefore imperative that I have some help to run my business as a matter of urgency and I formally request that Ghassan Dib be granted a working visa to assist my situation. Over the past 18 months I have engaged a number of employees whom I found were unsatisfactory and some untrustworthy and my business suffered due to this. As Ghassan Dib is a family member I have no doubts regarding his trustworthiness and feel he would be a great assistance to me.(emphasis added)

The evidence established quite clearly that the Metrys were struggling to run the family business and were only managing to cope because of the assistance the applicant was giving them. It could no doubt be readily inferred that the type of assistance previously provided by the applicant, which I have said did not amount to "work" properly construed, would have continued if a visa extension had been granted without permission to work, but only if this activity did not threaten his visa. It is apparent from the Tribunal's decision that the applicant has for example continued to assist his family in this manner throughout the appeal process. Indeed, the applicant was at all times open about the assistance he was giving his family and there was no attempt to mislead the department or the Tribunal about his actions. But there was no evidence of any kind to suggest that the applicant will not leave Australia when his family assistance is no longer required, foreseeably when both of his sister's children are attending school, and no suggestion that he would not do so.

In summary, the evidence before the Tribunal demonstrated the intention of both the applicant and his family that the applicant comply with his visa conditions at all times. Yet the Tribunal inferred from the applicant's expressed intention to work if granted permission that he would engage in work if permission was not granted. In my opinion that finding was erroneous. The Tribunal's regard for the expressions of future intentions was inappropriate as they did not logically show that the applicant would work if granted an extension to his visa without permission to work. Rather the evidence tended to show logically that the applicant intended to continue to provide assistance to his family in a manner that complied with his visa conditions.

THE FINDING THAT THE APPLICANT HAD ALREADY BREACHED THE CONDITION OF HIS CURRENT VISA THAT HE NOT WORK

Third. The Tribunal's finding that the applicant had contravened the existing visa prohibition on "work" was an unnecessary finding which operated to the applicant's detriment without ever being the subject of the application to the Tribunal. The application before the delegate was, on the advice of an immigration official, for an extension of the current 686 visa and for permission to work. In other words, if a 686 visa could by itself permit work, the applicant sought a waiver of or an exemption from condition 8101 in Schedule 8. If not, he was applying for another type of visa which would permit him to work. The delegate does not appear to have given any attention to that situation and the Tribunal committed the same error. It compounded that error by making a finding that would exclude him from applying for, or at least receiving, any other visa. Quite apart then from the fact that he did not, in my view, perform "work" in contravention of his current visa, this additional finding was not open either to the Tribunal or the delegate.

RELIEF

The application for review is granted. I set aside the decision of the Tribunal and remit the matter to the Tribunal for redetermination according to these reasons for judgment. The costs of the applicant are to be paid by the respondent.