Hossain v Minister for Immigration
[2007] FMCA 175
•23 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOSSAIN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 175 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a Student (Subclass 573) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 116, 483A |
| Islam v Minister for Immigration [2006] FMCA 1229 Nong v Minister for Immigration (2000) 106 FCR 257 |
| Applicant: | SAYEED AKHTER HOSSAIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG 1189 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 23 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Young on a direct access basis |
| Advocate for the Respondent: | Ms K Hooper of DL Phillips Fox |
ORDERS
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 9 May 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1189 of 2005
| SAYEED AKHTER HOSSAIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 9 May 2005 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 April 2005, affirming a decision of the delegate of the first respondent made on 10 January 2005, cancelling the applicant’s Student (Class TU) (Higher Education Sector) visa. The applicant seeks unstated relief against the decision of the Tribunal.
A Court Book (“CB”) prepared by the respondent’s solicitors marked “Exhibit A” was filed on 10 June 2005 and read into evidence.
Background
The Tribunal decision of C Packer, reference number NO5/00393, provides the following background information. The review applicant, Mr Sayeed Akhter Hossain, a national of Bangladesh, was granted a Student (subclass 753) visa on 28 July 2003. This visa contained condition 8104 ("holder must not engage in work in Australia for more than 20 hours a week during any week while the holder is in Australia").
On 2 December 2004, the Department issued the review applicant a Notice of Intention to Consider Cancellation (NICC) pursuant to s.116 of the Act. The NICC was issued on the basis that the review applicant may have breached condition 8104 of his visa by engaging in work for more than 20 hours a week while he was in Australia. This notice also invited the review applicant to attend a Department interview to provide comments on this ground of cancellation and to give reasons why his visa should not be cancelled.
In a letter dated 10 January 2005, the review applicant indicated that he had worked more than 20 hours a week before 25 October 2004. (CB 7) He also tendered a letter from the manager of Smarte Card dated 5 January 2005, saying that the review applicant had not understood visa condition 8104 and that after October 2004, did not exceed the 20 hour a week work limit.(CB 6) On 10 January 2005, the review applicant attended a Departmental interview. The Department noted that the review applicant indicated he made a mistake and did not fully understand the work restriction.(CB 53)
On 10 January 2005, the delegate proceeded to cancel the applicant's student visa on the ground that he had breached condition 8104 of his visa by engaging in work for more than 20 hours a week while in Australia.(CB 53) The visa would otherwise have ceased on 19 January 2005.(CB 53)
An application for review was lodged with the Tribunal on 17 January 2005.(CB 16) On 3 February 2005, the Tribunal invited the applicant to comment on information.(CB 24) The applicant responded through his agent by letter dated 21 February 2005.(CB 27) On 3 March 2005, the applicant and his employer provided oral evidence at the Tribunal hearing. The Tribunal gave weight to the following:
a)Pay details provided by Smarte Card for 6 September to 25 October 2004, indicating the applicant had worked for greater than 20 hours a week in each of the eight weeks of that period.
b)At the hearing, the applicant did not dispute that he worked for greater than 20 hours in the eight‑week period ending 25 October 2004. The applicant also stated he did not understand what condition 8104 meant.
Notwithstanding the applicant's confusion about the visa condition in question, on 20 April 2005 the Tribunal affirmed the decision of the Department to cancel the applicant's visa, pursuant to s 116(1)(b) of the Act.(CB 49)
Application for Review of the Tribunal’s Decision
On 9 May 2005, the applicant filed an application for review under s 39B of the Judiciary Act. On 12 July 2005, the applicant filed an amended application in this Court which contained two grounds of review. Mr Young, appearing for the applicant, indicated that the second ground of review was based on a defence of honest and reasonable mistake. However, Mr Young acknowledged that that defence was confined to criminal law and matters which have penal sanctions; therefore the second ground was not pressed. The remaining ground claims:
1.The Tribunal found (at CB55.1) that "for each of [eight weeks in September and October 2005] the review applicant engaged in work for more than 20 hours a week while he was in Australia and so breached condition 8.104". This finding indicates that the Tribunal construed condition 8104 such that if an applicant engaged in work for more than 20 hours a week in any week the applicant had breached condition 8104. This construction of condition 8104 is not correct. Instead, the Tribunal must consider whether the applicant engaged in work for more than 20 hours a week over a period of time between the grant of the visa and either -
(a) the time of the Tribunal's decision; or
(b) the expiry of the visa.
On this basis, the Tribunal misconstrued condition 8104 and hence fell into jurisdictional error. For this ground of view, the applicant relies on Nong v MIMA (2000) 106 FCR 257 at [37‑44], and a decision of the Tribunal in the matter of Khanthone Inthavong (MRT Case Number A03/03/01) dated 6 June 2003.
Submissions and Reasons
Ms Hooper, appearing for the first respondent, submits that the Tribunal correctly construed condition 8104 when it considered whether the applicant had worked greater than 20 hours in any given week during the currency of his visa. Ms Hooper argued that this construction is supported by Islam v Minister for Immigration [2006] FMCA 1229 (“Islam”) per Smith FM which is the only viable construction of condition 8104 available.
Mr Young, appearing for the applicant, referred to Nong v Minister for Immigration (2000) 106 FCR 257 (“Nong”) per Katz J which concerns the construction of condition 8202. Condition 8202 requires, amongst other things, the student in question to attend at least 80% of scheduled classes. His Honour held that the condition required the Department to assess attendance at the conclusion of the course. This finding was primarily based on the wording of the condition, which refers to a percentage of classes scheduled of the entire course.
His Honour observed in Nong at [39] that the alternative means of meeting condition 8202, namely, satisfactory academic results, could not be determined until the end of the course. His Honour noted that condition 8202 could be contrasted with condition 8105, which his Honour described as:
By its language, requires a week-by-week examination of the student's conduct so far as engaging in work is concerned. (Nong at [38])
Ms Hooper submits that Nong stands for the principle that condition 8202 cannot be measured on a weekly or pro rata basis as it is a positive requirement based on the percentage of the classes attended over an entire course. This proposition does not apply to condition 8105, compliance with which must be measured on a week‑by‑week basis. Condition 8104 is more analogous to condition 8105 than condition 8202. Ms Hooper argues that the reasoning of Katz J in Nong contrasts the positive requirement of condition 8202 (to attend a percentage of classes scheduled) with the negative requirement of condition 8105 (to refrain from working more than 20 hours in any week where the course of study is in session). The wording of condition 8105 says:
8105(1) - subject to sub-cl (2), the holder must not engage in work in Australia for more than 20 hours per week during any week when the holder's course of study or training is in session.
Sub-cl (1) does not apply to work that was specified as a requirement of the course when the course particulars was entered in the Commonwealth Register of Institutions and Courses for Overseas Students.
Condition 8104 states:
8104 - the holder must not engage in work for more than 20 hours a week while the holder is in Australia.
The difference being that condition 8104 broadens the 20-hour work restriction to cover all weeks that the visa holder is in Australia. Therefore, for each and every one of those weeks that the visa holder is in Australia, he/she must not work for more than 20 hours, while condition 8105 limits the 20-hour work week to those periods when the applicant's course is actually in session.
Ms Hopper submits that the crucial significance is that if condition 8104 was intended to be calculated by reference to the entirety of the period that the visa holder was in Australia, this could only be calculated at the end of their time in Australia. Such an interpretation would make condition 8104 void of any utility. This is because in monitoring compliance, the Department would have to wait until the visa expired, or the visa holder left Australia, to determine whether the condition had been breached. Such a construction does not promote the purposes of the Act and is plainly incorrect. Section 116(3) makes it clear that the Minister must cancel a visa for failure to comply with condition 8104. It cannot be presumed that the Act would mandate the cancellation of a visa for failure to comply with a condition, compliance of which cannot be gauged until the visa holder leaves Australia. Ms Hopper submits that the issue of construction which arises in this matter was decided in Islam.
Mr Young contends, and I accept his submission, that Islam dealt with and rejected an “averaging” approach to the construction of condition 8104. However, the argument promoted by Mr Young is not different in substance to the “averaging” approach and arguments presented to Smith FM in Islam. His Honour held that condition 8104 is breached if a visa holder had ever, during their residence in Australia, engaged in work for more than 20 hours a week. His Honour found at [26]:
However, I would have expected much clearer language to have been used in condition 8104, if it was intended to proscribe a variable period of averaging, by defining that longer period or the discretion to define it. In my opinion, the simple language of the condition does not allow consideration of more than the simple question: Whether the holder has ever, during his residence under the visa, engaged in work "for more than 20 hours a week". Prima facie, a failure to comply with this obligation would appear to be intended to be found in any one "week" could be identified when a greater period of work has been engaged in.
Ms Hooper submits that in reaching this conclusion, Smith FM had regard to the purpose of the condition, namely, to regulate visa holders' conduct on a continuous basis, while they are in Australia. This purpose would clearly be frustrated if a visa holder works more than 20 hours for, say, one or two weeks, does not breach condition 8104.
Federal Magistrate Smith also observed that the mandatory cancellation scheme is enforceable at any point during the visa’s currency and not only at its conclusion. His Honour therefore found that the phrase "while the holder is in Australia" should be construed literally – the relevant week must be one in which the visa holder is in Australia. These words do not indicate requirement for continuous breach. A Student visa allows the holder to leave Australia during holiday periods to visit their family or undertake private pursuits. Naturally, during the period the visa holder is outside Australia, he/she is not subject to the 20‑hour work restriction. This is the purpose of the words "while the holder is in Australia".
Ms Hooper submits that I should follow Islam unless I am convinced that it is plainly wrong. In support of her submission, Ms Hooper referred me to Minister for Immigration v SZANS [2005] FCAFC 41 at [38] per Weinberg, Jacobson and Lander JJ:
Even if the Federal Magistrate was correct in holding that the judgment of Madgwick J was not binding upon him, he most certainly was not correct in refusing to follow it. The judicial comity which ought to apply between the Federal Magistrates Court and judgments of single judgments of this Court (when not exercising appellate jurisdiction) should at the very least be the same as that which exists between single judges of this Court. The correct principle is that a judgment ought to be followed unless it is plainly wrong. Lander J referred to the relevant authorities in Cooper v Commissioner of Taxation (2004) 210 ALR 635 at [46].
I accept Ms Hooper's submission that Islam is not plainly wrong and it is also consistent with Minister for Immigration v Alam (2000) 145 FCR 345: Islam at [28]. I agree that Islam is logical and consistent with a fundamental principle of statutory interpretation – that a provision must be construed in a manner that does not render it void of utility. Islam is also consistent with the existence and operation of a mandatory cancellation power.
This issue of judicial comity was considered in SZEEU v Minister for Immigration [2006] FCAFC 2 at [147] and [148]. Justice Weinberg stated, with whom Moore and Allsop JJ agreed:
147. It followed from all this that the Minister faces a considerable hurdle in these appeals insofar as it is submitted that Al Shamry should not be followed. It is not sufficient merely to persuade this Court that there is an alternative, and preferable, construction to s.424A(3)(b) available. The Court must go further and demonstrate that the decision of Al Shamry was "plainly wrong".
148.The word "plainly" is more than simply an emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a learned Court to say that the point is not reasonably arguable.
Mr Young drew the Court's attention to the "Notice of Intention to Consider Cancellation under s 116 of the Migration Act" (CB 4-5). Mr Young indicated that the Notice did not particularize which period the Department was referring to. However, this alone does not give rise to jurisdictional error because the matter can be cured before the Tribunal: Zubair v Minister for Immigration [2004] FCAFC 248.
The Tribunal decision identifies the period in question as the eight weeks from 6 September to 25 October 2004.(CB 54.9) Mr Young indicates that the period identified was some months prior to the Notice which was dated 2 December 2004, while the date of the delegate’s decision was 10 January 2005. Mr Young submits that the delegate dredged up past events in consideration of its cancellation decision. In response to this argument, Ms Hooper submits that the Department acted on the applicant's breach as soon as it became aware of it and it was reasonably practical. Ms Hooper argues that it is not reasonable to expect that such Notices be issued immediately in all cases as this was administratively impossible. It does not mean that when the Notices are not issued immediately after a breach, the condition is not enforceable.
There is no time limit prescribed by the Migration Act or Regulations such as to restrict the cancellation process in the manner suggested by Mr Young. Neither is there a time limit in condition 8104. Ms Hooper submits, and I believe her submission to be correct, that at any time such a visa holder has worked in excess of 20 hours a week, condition 8104 is breached. The breach does not need to be continuing; it can be one that has occurred in the past.
Mr Young also brought the Court's attention to the Tribunal decision where it incorrectly stated condition 8104:
Attached to this visa was condition 8104 ("holder must not engage in work in Australia for more than 20 hours a week during any week while the holder is in Australia"). (CB 53.3)
Clearly, the words "during any week" are not part of condition 8104 and have been incorrectly included by the Tribunal in its decision. Ms Hooper submits that this is likely to have been a typographical error which was overcome by the Tribunal referring to the condition correctly.(CB 54) Ms Hooper submits, and I accept her submission, that the typographical error made no difference to the Tribunal decision which was based on the correct interpretation of condition 8104.
Conclusion
I accept the submissions made by Ms Hooper that this Court should follow where His Honour held that a breach of condition 8104 is established where a relevant visa holder engages in work for more than 20 hours a week in any week they are in Australia. I accept that this interpretation is consistent with the principle that a statutory provision must be interpreted in a manner that does not render it inoperative. The applicant's breach was clearly made out on the undisputed evidence before the Tribunal. Consequently, pursuant to s.1163 of the Act, the Tribunal had no alternative but to cancel the applicant's visa.
I am satisfied that an order for costs should be made in this matter.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 February 2007