KAMELY v Minister for Immigration
[2010] FMCA 867
•8 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAMELY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 867 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Applicant breached condition 8105 of her visa by working more than the permissible number of hours in the relevant period – whether any work undertaken by the Applicant was in accordance with an industry placement requirement of her course – whether the Tribunal complied with s.359A of the Migration Act 1958 (Cth). |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.116(1)(b); 116(3); 359A; 359A(4); pt.8 div.2 Migration Regulations 1994 (Cth), reg.2.43(2)(b)2643; Sch.2, Sch.8 |
| Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152 Kim v Witton (1995) 59 FCR 258 |
| Applicant: | KAMELY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1761 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 8 November 2010 |
| Date of Last Submission: | 8 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2010 |
REPRESENTATION
| Applicant appeared in person assisted by a Bengali interpreter |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Mr K. Hooper, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1761 of 2010
| KAMELY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 21 July 2010 and handed down on 22 July 2010.
The applicant is a national of Bangladesh born in 1982 (“the Applicant”). The Applicant arrived in Australia on 25 June 2006 on a subclass 573 student visa valid until 30 June 2009. On 06 November 2009, the Applicant was granted a subclass 572 visa originally valid to 06 October 2010 and which was subject to condition 8105.
On 07 April 2010 a delegate of the Minister for Immigration and Citizenship (“the Delegate”) cancelled the Applicant’s visa pursuant to s 116 of the Act.
The issues in this case are whether the Applicant breached condition 8105 of her visa by working more than the permissible number of hours in the relevant period; and, whether any work undertaken by the Applicant was in accordance with an industry placement requirement of her course. This issue are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
The Applicant’s visa subclass 572 is subject to condition 8105 pursuant to subclause 576.11(a) in schedule 2 to the Migration Regulations (“The Regulations”). Condition 8105 is found in Schedule 8 to the Regulations and places restrictions on the Applicant’s capacity to engage in work. Applicant must not engage in work in Australia for more than 20 hours a week during any week when her course of study is in session. The restriction does not apply to work that may be specified as a requirement of the Applicant’s course. Relevantly, condition 8105 is as follows:
“…
(1) Subject to subclause (2), the 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.
(2) Subclause (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Course for Overseas students.
….”
Pursuant to s.116(1)(b) of the Act, the Minister may cancel a visa if, relevantly, its holder has not complied with a condition of the visa. Pursuant to s.116(3) of the Act, the Minister must cancel a visa where prescribed circumstances exist and have been breached.
Regulation 2.43(2)(b)(i) makes clear that condition 8105 is such a prescribed circumstance.
On 07 April 2009, the Delegate gave the Applicant a written notice of intention to cancel her visa and, after a further interview, decided to cancel the Applicant’s visa. The Delegate found that the Applicant had breached condition 8105 of her visa by working in excess of 20 hours per week in respect of certain weeks in November 2009.
The Tribunal’s review and decision
On 09 April 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.
The Tribunal’s review and decision are accurately summarised by Mr Smith, counsel for the First Respondent, in his written submissions as follows:
“5. The applicant’s agent gave the Tribunal a written submission dated 28 May 2010. The agent argued that the delegate had made her decision on the basis of an average of hours worked, had not taken into account the higher rate of pay on weekends, and had not considered that part of the work had been engaged in as part of industry placement required by the course (and thus excluded from the condition by sub-clause 8105(2)).
6. The applicant attended a hearing to give evidence and present arguments on 1 June 2010.
7. On 3 June 2010 the Tribunal wrote to the applicant inviting her to comment on information and to provide additional information: CB 105. In response, the applicant’s agent sent the Tribunal a number of documents relating to industry placement: CB 110 – 116. The Tribunal then wrote to the Perth Institute seeking information concerning the applicant’s course, the industry placement part of that course and the documents sent to it by the applicant: CB 118. On 7 July 2010 Perth Institute replied, stating in part that the documents from the applicant were not an accurate record of her submission to the college: CB 127. The Tribunal then wrote to the applicant again to invite her to comment on the information obtained from the Perth Institute: CB 133. The applicant’s agent responded to this invitation on 15 July 2010.
8. On 21 July 2010 the Tribunal made a decision to affirm the delegate’s decision.
Tribunal’s decision
9. The Tribunal found that the applicant worked 42 hours in the week commencing 9 November 2009 and 27.45 hours in the week commencing 23 November 2009: CB 176 at [65]. It accepted that industry placements were a specific requirement of the course in which the applicant was enrolled, however, was not satisfied that, in each of the weeks in which she worked more than 20 hours, she did so as part of an industry placement: CB 177 at [68]. This conclusion was based on the information given to the Tribunal by the Perth Institute as well as inconsistencies in the industry placement documents given by the applicant to the Tribunal. For that reason, the Tribunal found that, by engaging in work for more than 20 hours in both the weeks commencing 9 November 2009 and 23 November 2009, the applicant had breached condition 8105: CB 178 at [74].
10. In addition, the Tribunal found that, even if the applicant had worked at Hungry Jacks as part of her industry placement for the time claimed, she would still have been in breach of condition 8105 in the week commencing 23 November 2009.
11. The Tribunal considered the applicant’s submission that she had made an honest mistake, but considered that the operation of s 116(3) and regulation 2.43(2)(b) meant that it had no discretion as to whether to cancel the applicant’s visa: CB 179 at [77].
12. For those reasons the Tribunal affirmed the decision to cancel the applicant’s visa: CB 116.”
The proceeding before this Court
The Applicant was unrepresented before this Court, although had the assistance of a Bengali interpreter.
On 07 October 2010, the Applicant’s solicitor attended a directions hearing before me. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.
On 07 October 2010, the Applicant’s solicitor served her with a Notice of Intention to Withdraw as Lawyer and, on 15 October 2010, served the Applicant with a Notice of Withdrawal as Lawyer. On 02 November 2010, the Applicant’s solicitor filed a Notice of Withdrawal as Lawyer.
At the commencement of the hearing, the Applicant confirmed that she had been given a copy of the Courts direction’s, made on 07 October 2010, by her solicitor at around that time. She confirmed that she had not filed any amended application, evidence or submissions in support of her application and that she had no further documents to present to the Court this morning in support of her application.
The Applicant confirmed that she relied on the grounds contained in her application filed on 12 August 2010 as follows:
“1. The Tribunal made an error not providing the information which the Tribunal used in making the decision of the application.
2. The Tribunal failed to consider that the applicant had complied with her visa conditions particularly he) did work experience voulntry (sic) which was paid by the company.
3. The Tribunal failed to consider the applicant’s has completed 95% of her designated course.”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
Ground 1
Ground 1 was unsupported by particulars evidence or submissions. At the hearing this morning, the Applicant said no more that that this ground was about her work and that she was working 20 hours and had 20 hours of work experience. She declined to make any further submission to explain any further her complaint in ground one.
Counsel for the first respondent, Mr Smith, addressed the ground as a complaint that there was information which formed the reason or part of the reasons for the Tribunal affirming the decision under review and was not given to the Applicant for comment. This complaint can not be made out.
The Tribunal’s decision record made clear that it affirmed the decision under review because it found that the Applicant had worked 42 hours in the week commencing 09 November 2009 and 27.45 hours in the week commencing 23 November 2009. The Tribunal found that this work was not undertaken as a part of the Applicant’s industry experience requirement of her course.
In finding that the Applicant did not undertake the work as part of her course, the Tribunal had regard both to evidence given by the Applicant and an advice received by the Tribunal from the Perth Institute where the Applicant was enrolled.
On 10 June 2010, the Tribunal wrote to the Perth Institute seeking verification of documents provided to the Tribunal by the Applicant in support of her review application. On 07 July 2010, the Perth Institute responded to the Tribunal’s letter advising that the copy of the Industry Placement Agreement provided by the Applicant could not be confirmed and that the attached time sheets were not in accordance with the Perth Institute’s records in respect of the Applicant.
By letter dated 08 July 2010, the Tribunal wrote to the Applicant giving her this information and explaining its relevance and that the Tribunal may not be satisfied that she had complied with condition 8105 of her visa and that the Tribunal, therefore, may have no alternative other than to affirm the decision made under review. The letter enclosed a copy of an earlier letter, dated 03 June 2010, to the Applicant informing the Applicant of concerns it had about her evidence and documents and requesting further information. The Tribunal’s letter dated 08 July 2010 also enclosed a copy of its request for information made to the Perth Institute by letter, dated 10 June 2010, and copies of documents sent by the Perth Institute in response. The Applicant’s migration agent responded to the Tribunal’s letter by fax, dated 15 July 2010.
The Tribunal accepted that industry placements are a specific requirement of the Applicant’s course. However, the Tribunal was not satisfied that the work done by the Applicant with Hungry Jacks during the weeks 09 November 2009 and 23 November 2009 were done pursuant to that requirement. Consequently, the Tribunal found that by working 42 hours in the week commencing 09 November 2009 and 27.45 hours in the week commencing 23 November 2009, the Applicant was in breach.
Moreover, the Tribunal further considered that, even if it were to accept that the Applicant had an industry placement with Hungry Jacks, such a placement ended on 13 November 2009 when her course of study recommenced. In those circumstances, the work undertaken by the Applicant on 23 November 2009 was in breach of condition 8105 of her visa in that she had worked 27.45 hours in the week commencing 23 November 2009. Accordingly, the Tribunal was satisfied that grounds existed for the cancellation of her visa. The Tribunal found that s.116(3) of the Act and reg.2.43 of the Regulations removed any discretion from the Tribunal upon non compliance with condition 8105 being established (see reg.2.43(2)(b)(i)).
There was no other information that the Tribunal was obliged to give to the Applicant pursuant to s.116(3) of the Act. The information which formed the Tribunal’s reasons or part of its reasons in affirming the decision under review was information that it gave to the Applicant in accordance with s.359A of the Act or was information otherwise excluded from the obligation s of s.359A of the Act, by reason of s.359A(4) of the Act.
In the circumstances, the Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.
Accordingly ground one is not made out.
Ground 2
Ground 2 asserts that the Tribunal failed to consider that the Applicant did voluntary work experience for which she was paid by the company. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered carefully all the submissions made by the Applicant and her migration agent in respect of that allegation. The Tribunal accepted that industry participation was a specific requirement of the Applicant’s course and that the 20 hour work limit did not apply to work engaged in by the Applicant for the purpose of that requirement. However, as stated above, the Tribunal found that the Applicant did not have an industry placement in November 2009, as alleged. Alternatively, the Tribunal found that, even if the Applicant did have such an industry placement, it ended on 13 November 2009.
I accept the submission of counsel for the first respondent that Ground 2 may be intending to assert that voluntary work is not work within the meaning of condition 8105. However, the Applicant was in fact paid for the work. Moreover, an activity does not need to be renumerated for it to be “work” so long as it is an activity that normally attracts renumeration (Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152; Kim v Witton (1995) 59 FCR 258). The Tribunal specifically had regard to the meaning of “work” in its decision record, including the notion of whether or not voluntary work was “work” for the purposes of the legislation and the issue before the Tribunal.
Accordingly ground two is not made out.
Ground 3
Ground three is an assertion by the Applicant that the Tribunal failed to consider that she had nearly completed her course. As is clear from the reasons above, condition 8105 is a prescribed circumstance in which cancellation for breach of that condition is mandatory pursuant to s.116(3) of the Act and reg.2.43(2)(b). In the circumstance, the Tribunal has no residual discretion to have regard to how close to the end of her course the Applicant may be.
Accordingly ground three is not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant both at the hearing and twice in writing matters of concern it had about her evidence and noted the Applicant’s responses. To the extent that the Tribunal had regard to information that enliven the obligation of s.359A of the Act, the Tribunal gave that information to the Applicant in accordance with that statutory regime. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 8 November 2010
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