Kaur v Minister for Immigration

[2014] FCCA 1069

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1069

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – where Tribunal confirmed delegate’s decision to cancel visa for breach of condition 8105 – where applicant admitted to Tribunal and delegate to working more than 40 hours during course of study – where Tribunal stated that it gave no weight in its decision to rosters and pay slips before it – where applicant claimed she had not provided those pieces of evidence to Tribunal – whether Tribunal required to put evidence of pay slips to applicant – where decision affirmed on other uncontested evidence – whether Tribunal’s decision affected by jurisdictional error.

Legislation:  

Migration Act1958 (Cth) s.359

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs 225 CLR 88

Applicant: NAVNEET KAUR

Second Applicant: JASBIR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 361 of 2013

Judgment of: Judge Raphael

Hearing date: 15 May 2014

Date of Last Submission: 15 May 2014

Delivered at: Adelaide

Delivered on: 15 May 2014

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 361 of 2013

NAVNEET KAUR

First Applicant

JASBIR SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Ms Kaur, the first applicant in these proceedings, was granted a Student (Vocational, Education and Training Sector) (Subclass 572) visa on 20 November 2012.  The second applicant also held this visa by virtue of his membership of her family unit.  The visa had attached to it condition 8105, which is the in following form:

   “(1A)  The holder must not engage in any work in Australia before the holder's course of study commences.

   (1)  Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder's course of study or training is in session.

   (2)  Subclause (1) does not apply:

   (a)  to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students; and

   (b)  in relation to a Subclass 574 (Postgraduate Research Sector) visa if the holder has commenced the masters degree by research or doctoral degree.

   (3)  In this clause:

   "fortnight" means the period of 14 days commencing on a Monday.”

2. Ms Kaur commenced a course consistent with her confirmation of enrolment document found at [CB 27] at an education establishment known as Salford College on 1 November 2012.  The course was due to end on 1 May 2013.  Ms Kaur passed the course and obtained the certificate.  Ms Kaur decided that she wished to obtain a further qualification and so enrolled in another course with Salford College, a diploma of business.  In four weeks she received a confirmation of enrolment found at [CB 29].  This was a course commencing on 1 July 2013 and ending on 14 July 2014.  In fact, the applicant did not commence the course on 1 July; she commenced it on 12 July 2013.

3. During the time that her first course was being undertaken, Ms Kaur obtained employment with two organisations.  These were McDonald’s and Goodstart Early Learning.  On 26 July 2013 the Department of Immigration and Citizenship issued a notice of intention to consider cancellation which it handed to Ms Kaur on the same day.  That notice contained as a reason for the proposed cancellation of her visa the following:

   “The delegate has received information, that Ms Navneet Kaur who is a TU-572 primary holder is in breach of her condition 8105.  …

   Officer MOHEICH was provided with a copy of Ms Kaur’s work hours from 21/01/2013 to 17/07/2013 showing all fortnights in excess of 40 hours. 

   PRISMS shows client was in session studying Diploma of Business at Salford College.  [To some degree this is inaccurate as at the time Ms Kaur was studying a Certificate III in Business]

   Office MOHEICH contacted client and invited her to attend an interview.  During the interview, client did not dispute the fact that she has breached and admitted to working in McDonalds 3 – 4 nights a week and at Good Start Learning Centre since January this year.  She also added that her work hours do exceed the 40 hours a fortnight limitation.” [As in original]

4. It would appear that Ms Kaur attended a further interview with the Department on or about 30 July 2013, or possibly 2 August 2013, when the matter was raised again, and between [CB 9] and [CB 11] there is contained the delegate’s reasons for cancelling the visa.  Essentially, these reasons were the same as those already extracted, namely the admission by Ms Kaur that she had worked in excess of 40 hours a fortnight whilst her course was in session.

5. There is found at [CB 13] a letter from Ms Kaur which appears to be dated 2 August 2013.  It says in part:

   “My name is Navneet Kaur.  I and my husband want to let you know that this will not happen again.  I have done some extra work, because my mother was sick.  I want you to understand my situation please. […]

   Please give me one chance and I will assure you that this will not happen again.  You can even monitor my working hours from now on.  I will not work more than 20 hours a week.  If you want, I will not work anywhere.  Please understand my situation; my future will be in the drain.  Please give me one chance.  I will be very thankful to you.

6. There also appears at [CB 157] a letter from Goodstart Early Learning dated 30 October 2013.  This states:

   “To Whom it may concern

   Navneet Kaur is employed with the company Goodstart early learning as a casual educator, and is able to work at different centres in the area. But she has worked only here at Goodstart Payneham and her first shift with the centre was on Tuesday January 29^th 2013, where Navneet continued to work between 30 and 38 hours per week until her last shift working the stated hours being Friday 12^th July 2013.”

   Ms Kaur advised the court that this document was produced by her to the Tribunal. 

7. Upon receiving the notice of cancellation, Ms Kaur has sought review of that decision from the Migration Review Tribunal before whom she appeared to give evidence and make submissions.  At [19] – [20] [CB 168] the Tribunal notes:

   “At the hearing of this matter, the first named applicant told the Tribunal that she was working “almost every weekday” at Goodstart Early Learning Centre for an average of 60 hours per fortnight, but that this work had ceased on 12 July 2013.  She also told the Tribunal that she was working at McDonald’s restaurant in Collinswood, South Australia (McDonalds) between two and four nights per week of between two and five hours each shift.  She said that she started working at McDonalds three years ago and that she continued working there until her visa was cancelled on 2 August 2013. The Tribunal put to the first named applicant that according to her own evidence, this meant that from her work at McDonalds she was working between 8 and 40 hours per fortnight. Added to this is her work at Good Start Early Learning Centre to 12 July 2013 which she said averaged 60 hours per fortnight.

   The Tribunal asked the first named applicant whether, to substantiate this she could provide documentary evidence of her hours of work and shifts for all work undertaken for the period, mid June 2013 to 2 August 2013. The Tribunal informed the first named applicant that it was prepared to allow time for this to occur.  In response, she said she could provide such documents, then proceeded to admit to the Tribunal that she had, in fact, worked more than 40 hours per fortnight when her course of study was in session, just before her visa was cancelled on 2 August 2013.  The Tribunal checked with the first named applicant whether she meant or understood that she was in breach of a condition of her visa not to engage in work in Australia for more than 40 hours per fortnight during any fortnight when her course or study or training is in session. She responded that she understood that to be the case but submitted that she should be afforded “one chance because I think I that deserve one”. 

8. It is at this stage that the matters become somewhat confusing.  Paragraph 21 of the Tribunal’s decision record reads:

   “The Tribunal has since the hearing, received (inter alia) a Period Wage Payment summary from McDonalds of the first named applicant’s pay for the period from 9 June 2013 go 28 July 2013. The weekly periods commencing 30 June 2013 and 7 July 2013 show work undertaken during a fortnight of (23.02 + 24.37) 47.39 hours for a fortnight that covers a period when her course of study was in session. The Tribunal however, does not rely on that information and has given it no weight, as it has not substantiated this directly with the employer involved. The Tribunal instead, prefers the evidence of the first named applicant given in her oral admission at hearing, and finds that she engaged in work of more than 40 hours in the fortnight (from Monday 1 July 2013) when the course of study was in session. This is more than the permissible number of 40 hours per fortnight specified in condition 8105, during a period her course was in session.”

9. Ms Kaur has provided the Court with an affidavit dated 13 March 2014. The gravamen of the affidavit is that she had not seen a number of the enclosures within the green book until the green book had been delivered. In particular, she had not seen the McDonald’s payslips referred to at [21]. These payslips, she said, are not hers. They are a manager’s with the same name. She also says in her affidavit that the diploma course did not commence on 1 July 2013. It commenced on 12 July, and therefore the period to which the Tribunal refers was not a period during which she was undertaking a course of study. What Ms Kaur argues is that the Tribunal appears to have made its decision based upon her admission of working during this period and based upon evidence that she says she had not seen and was incorrect. However, it seems to the court that there are a number of hurdles in the way of Ms Kaur establishing that these facts constitute evidence of a jurisdictional error having been made by the Tribunal.

10. The first is that it was only today that Ms Kaur told the court that she had not provided those wage slips from McDonald’s to the Tribunal. And although she says that the wage slips do not refer to her, that is her assertion, and there is no other evidence before the court that this other person of the same name exists. And certainly, there was no such evidence before the Tribunal. The evidence about this is somewhat ambivalent. At [158] there is a letter from Ms Kaur purportedly providing payslips from McDonald’s. At [CB43-48] payslips from McDonald’s roster documents from McDonalds are produced. Ms Kaur tells the court that the document she provided to Tribunal is not reproduced in the green book; only the other rosters. If the Tribunal came upon the information in some other way, under s.359 of the Migration Act1958 (Cth), it is information which one would normally expect the Tribunal to put to the applicant.

11. Whilst this would normally call for the court to adjourn the matter so that some clarification could be obtained, and perhaps for Ms Kaur to obtain legal advice, it has not done so in this case because of the other two matters which it believes prevent any error on the part of the Tribunal with regard to the McDonald’s issue affecting the decision.  The first is that the Tribunal has said that it disregarded this evidence.  The court is aware that there is authority to the effect that even where the Tribunal indicates that it is not taking a matter into account, a jurisdictional error can still occur: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs 225 CLR 88. And so that in itself might not avail the respondent.

12. However, the more important issue is this; the Tribunal’s duty was to affirm or reject a decision made by a delegate.  The decision that was made by the delegate was not made upon the basis of what Ms Kaur did or did not do in the month of July 2013.  It was made on the basis of what Ms Kaur did in the previous six months while she had been enrolled in the certificate course.  The evidence in relation to that period is clear.  Ms Kaur did work, on her own admission, for more than 40 hours per week for a consistent period of time, both for McDonald’s and for the Goodstart Early Learning Centre. 

13. Insofar as the Tribunal may have been led into error in regard to the period between 1 and 12 July 2013, it was an error that was available to it on the evidence.  The Certificate of Enrolment document indicated that the course started on 1 July and Ms Kaur did not tell the Tribunal that she had holidays until 12 July, and therefore the earlier period was not within the time that she was studying.  In those circumstances, any error of the Tribunal was an error within jurisdiction and not a jurisdictional error.

14. The Tribunal had a discretion to determine whether or not to cancel the visa.  It describes the manner in which it exercises that discretion between [26] and [30] [CB 196].  There is nothing in that description that would indicate that the discretion miscarried.  The court is therefore unable to review the matter as the applicant asks.  The application must be dismissed and the applicants must pay the respondent’s costs assessed in the sum of $5,800.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  26 May 2014