Gonzalez v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 645

FEDERAL COURT OF AUSTRALIA

Gonzalez v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 645

MIGRATION – application for review of decision of delegate of Minister of Immigration and Multicultural and Indigenous Affairs – cancellation of business long validity visa – failure to comply with visa condition 8112 in Sch 8 of the Migration Regulations 1994 (Cth) – whether error of law or jurisdictional error – where applicant engaged in work which could be carried out by Australian citizen or permanent resident.

Migration Act 1958 (Cth): s 116
Migration Regulations 1994 (Cth): Sch 8 par 8112

WESLEY ADAM GONZALEZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 305 of 2002

GOLDBERG J
20 MAY 2002
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 305 of 2002

BETWEEN:	WESLEY ADAM GONZALEZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	20 MAY 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        There be no order as to the costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 305 of 2002

BETWEEN:	WESLEY ADAM GONZALEZ Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	20 MAY 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant is presently held in immigration detention. He arrived in Australia on 17 May 2002, holding a valid visa for entry into Australia. The visa was cancelled by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) under s 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”). The applicant has applied to the Court to review the decision of the delegate of the Minister.

2. Section 116(1)(b) of the Act provides that:

   “Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
   (a)      …
   (b)      its holder has not complied with the condition of the visa.
   …”

3. The applicant is a citizen of the United States of America.  He applied for an Electronic Travel Authority Subclass 956 Business Long Validity Visa (multiple entries) which was granted on 31 January 2002.  It was valid until 1 January 2012 for multiple entries for up to three months for each entry.

4. The applicant first entered Australia on 7 February 2002 on that visa and left Australia on 29 April 2002. He returned on 17 May 2002. He was interviewed by officials of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) and as a result of statements he made, the delegate of the Minister formed the view that there were grounds for cancellation of his visa under s 116(1)(b) of the Act.

5. The relevant condition for present purposes is the condition found in par 8112 of Sch 8 of the Migration Regulations 1994 (Cth) which provides:

   “The holder must not engage in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.”

   The applicant was interviewed at Melbourne Airport by officers of the Department and the substance of the interview, which records a number of answers by the applicant to questions asked of him and statements made by him, is not in issue.  I refer to relevant parts of the interview and the statements made. 

6. The reason why the applicant came to Australia was to meet, and be with, two friends with whom he had worked in the United States and who presently live in Australia.  One of those persons, Matt McQuinley, runs his own business selling beds and home furnishings and the other person works for Mr McQuinley.

7. During the period of time when the applicant was first in Australia under the terms of the visa, that is, between 7 February and 29 April 2002, he undertook a number of activities.  As well as sightseeing, he helped his friend, Matt McQuinley, in his business.  He assisted in the warehouse by carrying out inventories, answering phone calls and moving goods.  He worked at the warehouse for approximately 30 hours per week, mostly on a voluntary basis, although he sometimes received payments in kind and he received some payments of the order of $500 to $700 per week and during one week he received $1000.

8. The applicant’s counsel submitted that these payments were not to be regarded as payment for work done but, rather, advances in relation to a business he was considering setting up later.  It is not relevant for present purposes how those payments are characterised, having regard to the terms of the relevant regulation.

9. The applicant told the officers of the Department that he was looking at creating his own business in the bedding industry similar to the business of his friend, by making and marketing ready‑made beds.

10. A threshold question arises on the application because the Minister contended that s 474 of the Act precluded this application being made in this Court. It was implicit in the Minister’s submission that the decision which had been made by the delegate of the Minister was a privative clause decision within s 474 of the Act and therefore judicial review of that decision was precluded except in a limited way.

11. Having regard to the manner in which the application was argued and the conclusion I have reached in the matter, it is not necessary to decide whether the decision was a privative clause decision, and in particular, whether there was an issue raised as to whether there was such a jurisdictional error as might be considered to be amenable to judicial review, notwithstanding s 474 of the Act. Having regard to the conclusion I have reached, I do not need to consider the issues raised, for example, by Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, and NABC v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 539, or by Wilcox J in Boakye‑Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438, or Finkelstein J in Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498.

12. I am satisfied on the material before me that there has not been any error disclosed as having been committed by the delegate in her consideration of the matter before her, whether it be an error of law or whether it be a jurisdictional error of whatever kind.  I am satisfied on the material before me that the delegate did not misconceive her function. 

13. The evidence and material that was before the delegate showed, having regard to the statements made by the applicant, that he had undertaken and engaged in work in Australia.  The nature of the work identified by the applicant was of a kind which it was open to the delegate to decide was work that might otherwise be carried out by an Australian citizen or an Australian permanent resident. 

14. Certainly on the material before the delegate, it was open to her to be satisfied that the applicant had engaged in work in Australia that might otherwise be carried out by an Australian citizen or an Australian permanent resident.  I do not consider it to be to the point as to whether or not, or to what extent, the applicant was paid for that work. 

15. Counsel for the applicant submitted in substance that the delegate had misstated or misunderstood her function because she had not explored the issue as to the reason why, or the purpose for which, the work was undertaken.  It was submitted on behalf of the applicant that he had come to Australia to train and obtain experience in the business into which he was proposing to enter and that such work as he had undertaken and engaged in, in the business of his friend, was work which was for the purpose of such training and of obtaining such experience.  It was submitted that the delegate had not explored that issue, but had simply looked at the fact that the applicant had engaged in work.

16. I do not consider that this submission can be sustained.  The words of the condition are clear.  It is the engaging in work which results in a breach of the condition.  It does not have a purposive element in the sense that the condition does not preclude the visa holder from engaging in work for a particular purpose.  Rather, it precludes the applicant from engaging in work simpliciter. 

17. I do not consider that the delegate erred in her consideration by failing to explore the issue to which counsel for the applicant referred. She was not required to do so. Even if I accept the reasons propounded by the applicant as to why he worked, that is, because it related to the business into which he was proposing to enter or set up, it was certainly still open to the delegate to be satisfied that the condition of the visa had been breached, or put more accurately in terms of s 116(1)(b) that the applicant had not complied with that condition.

18. In those circumstances, the application will be dismissed.  The usual order in applications of this nature is that costs follow the event.  In the rather unusual circumstances of this case I think the interests of justice would be satisfied by each party bearing their own costs and the Court making no order as to costs.  The matter came before the Court as a matter of urgency and the material that was communicated to the applicant from the Department in the form that was handed to him stated that he admitted to a breach of the condition, albeit as a holder of the earlier subclass 977 visa. 

19. Although there was later some clarification, there was a sufficient amount of confusion when the matter first came before the Court.  If that confusion had been clarified on Friday afternoon before Finkelstein J, as it has been clarified by way of material before me this day, it is probable that today’s hearing might have been averted.

20. In those circumstances, without being critical in any way of any of the officers of the Department, who work under very tight time conditions and under a stringent statutory scheme, it is nevertheless appropriate to order that there be no order as to costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:            21 May 2002

Counsel for the Applicant:	J Woods
Solicitor for the Applicant:	Law Partners
Counsel for the Respondent:	C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 May 2002
Date of Judgment:	20 May 2002