Liverpool City Council v Commonwealth of Australia

[1993] FCA 539

539 7'3

JUDGMENT No. ........ ........ ,. I ....,.... ,

IN THE FEDERAL COURT OF AUSTRALIA	)
VICTORIA DISTRICT REGISTRY	)
GENERAL DIVISION	) No. VG 227 of 1993
B E T W E E N :

WASANA VIPAMANEERODE

Applicant

- and -

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

Coram:	Olney J
Place:	Melbourne  >..-,S - V - -
-:	5 August 1993  11 AUG 1993

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MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed in so far as it seeks the review of the determination of MS Cooper made on 26 May

1993 that the applicant had failed to comply with a

terminating condition sublect to which her entry permit was granted namely the condition that she must not engage in work for more than 20 hours a week during her stay in Australia, and the review of the decislon of MS Cooper made on 4 June 1993 declining to set aside her earlier determination;

AND DECLARES THAT the applicant's entry permit was not

2.   The purported notice of determination given by Megan Cooper to the applicant on 26 May 1993 be set aside;

terminated by operation of regulation 2.36 of the Migration

j1993) Regulations upon such notice being given to the

applicant:

3.   The respondent be permanently restrained from giving effect to the order for the deportation of the applicant made on 30 June 1993;

4.   The respondent pay the applicant's costs limited to a single day hearing.

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 )	GENERAL DIVISION	)	No. VG 227 of 1993
B E T W E E N :

WASANA VIPAMANEERODE

Applicant

- and -

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

Coram:  Olney J

Place	:	Melbourne
Date:	5 August 1993

REASONS FOR JUDGMENT

BACKGROUND The applicant is a Thai national. She first arrived in Australia on 25 November 1988 on a student visa and was granted a student entry permit. On 24 November 1990 she married a Thai national who also held a student entry permit.	At some stage shortly thereafter the applicant ceased to be a	student and on 18 July 1991 she obtained what is known as a
student dependent entry permit which has since been extended twice and at the relevant time was current to 15 March 1996. Apart from two absences of about 6 weeks each, the applicant has resided in Australia continuously since her first arrival.
On the evening of 26 May 1993 whilst the applicant was working as a cook at Thai Oriental Cafe in Bridge Road, Richmond, the premises were visited by a number of officers of the respondent's department, including MS Megan Cooper who interviewed the applicant and subsequently handed her notice of a determination that the applicant had failed to comply with a terminating condition subject to which her entry permit was granted. The applicant was taken into custody, and on the following day she was released upon a bond being provided and her undertaking to abide by certain conditions. On 1 June 1993 the applicant was again interviewed by MS Cooper, this time at the department's offices in Melbourne and in the presence of her husband and a Thai interpreter. On 28 May 1993 and on 2 June 1993 the applicant's solicitor provided MS Cooper with additional information and on 4 June 1993 MS Cooper wrote to the solicitor advising him that there was no reason to alter her previous determination that the applicant had failed to comply with a terminating condition of her entry permit. An order for the applicant's deportation was made on 30 June 1993. By interlocutory order of this Court made on 8
the deportation order until the determination of these July 1993 the respondent was restrained from giving effect to
proceedings. The substantive application was dealt with on 21 and 22 July 1993, on which latter date I reserved my decision.
THE ENTRY PERMIT As at 26 May 1993 the applicant held a valid entry permit issued pursuant to the provisions of the Migration Act and the Miaration (Reaulationsl which entitled her (subject to conditions referred to hereunder) to remain in Australia until
15 March 1996.
The applicant's entry permit was issued on the basis that she was a "secondary person" (a member of the family unit) in relation to a person (her husband) who was the holder of a class 560 (Student (category A)) entry permit. The regulations do not use the term student dependent entry permit but it is a convenient term to describe the type of entry permit held by the applicant. Under the regulations such a permit is subject to certain mandatory conditions being those identified by the code numbers 9104 and 9109 in Part 1 of Schedule 9 to the regulations. These conditions are:

9104. The holder must not engage in work for more than 20 hours

a week dur~ng the holder's stay in Australia.

9109. The holder must maintain adequate arrangements for health insurance during the period of stay in Australia.

The applicant's entry permit was issued subject to these conditions and to another which is not presently relevant.

Regulation 2.8 provides that if the Minister determines that	Conditions 9104 and 9109 are "terminating conditions".
the holder of an entry permit has failed to comply with a terminating condition subject to which the entry permit was granted the Minister must give notice of the determination to the holder of the entry permit. If such a notice is given the entry permit is terminated on the day on which the holder is notified of the determination (Reg. 2.35, 2.36).
In this case it is said that MS Cooper as delegate of the Minister determined that the applicant had failed to comply with a terminating condition of her entry permit by working in excess of 20 hours per week and that she gave notice of such determination to the applicant on 26 May 1993 whereupon the applicant's entry permit terminated.
THE APPLICATION By her amended application the applicant seeks the review of the following decisions and conduct:
1. The decisions of Megan Cooper (as delegate of the respondent) made on 26 May 1993 that:

(a)	the applicant had worked more than 20 hours per week;
(b)	the applicant had breached a terminating condition of her entry permit;

(c) the applicant's entry permit be terminated;

2.    The conduct of the respondent and his delegate in failing

to set aside any of the decisions referred to in 1 above.

Relief is claimed pursuant to the Administrative Decisions

(Judicial Review) Act 1977, section 39B of the Judiciary Act

1903 and the accrued jurisdiction of this Court in relation to

each of the decisions and/or conduct referred to on the
grounds that:

(i) there was an improper exercise of power in that there was a failure to take into account relevant considerations in the exercise of power;

(ii)there was an error of law affecting the exercise of power in that the applicant had not breached a terminating condition of her entry permit;

(iii)there was an improper exercise of power in that the

exercise of power was so unreasonable that no reasonable
person could have exercised the power in such a way;

(iv)there was a breach of the rules of natural justice in connection with the making of the decisions and the exercise of power;

(v) procedures required by law to be observed in connection with the making of the decision were not observed.

The applicant claims that each decision or conduct the subject of the application be quashed and set aside, that the respondent or his delegate give further consideration to all of the matters to which each decision or conduct relates, and that the respondent be restrained from seeking to deport the applicant from Australia pending reconsideration according to

law of the decision and conduct complained of. The application particularises the various grounds upon which	relief is sought. The general thrust of the particulars
pleaded is first, that the decision-maker failed to properly inquire into the facts before making the decision, second that the process of interviewing the applicant at the restaurant was unfair due to the unavailability of an interpreter and to the environment in which she was interviewed, and third, that the form of notice given to the applicant of the decision- maker's determination was inappropriate and did not have the effect of terminating the applicant's entry permit.
THE EVIDENCE Affidavit evidence was relied upon in support of the application and in response to it. The applicant swore affidavits dated 9 June 1993, 7 July 1993 (2) and 14 July 1993. The first three were originally relied upon in support of the application for interlocutory relief and were also read in support of the substantive application.
The applicant gave evidence at the hearing with the aid of an interpreter. It was quite apparent that for the most part she understood the questions as put to her in English but this was not invariably so. Frequent resort was had to the interpreter. On many occasions the applicant understood the question in English but elected to convey her answer to the interpreter in Thai, who translated it into English.
Given the circumstances, it is not possible to make any
subjective assessment of the credibility of the applicant. I am however satisfied that at the end of the day she understood what was put to her and that her evidence represents her version of the events testified to.
In her evidence at the trial the applicant agreed that she did not, on the evening of 26 May 1993 request the services of an interpreter as deposed to in her affidavit of 9 June 1993. Her explanation for this variation from her affidavit evidence seems to be that she wrote down in Thai what had happened and her husband interpreted her writing to her solicitor. It is assumed but not said in so many words, that the error occurred in this process. In her affidavit of 14 July 1993 (paragraph
5 ) a different explanation is given but one which does not
involve a retraction of her earlier statement.
Given the importance initially ascribed to this aspect of the case particularly in the affidavits used in support of the interlocutory application, I do not accept the applicant's explanation. I am satisfied that at the outset the applicant instructed her legal advisors that she had asked for an interpreter on 26 May 1993 and that none had been provided. This was one of the key arguments in support of her application for interlocutory relief and was the basis upon which that relief was granted. The applicant successfully relied upon false evidence to obtain a stay of the deportation order. Her attempt to explain away the inaccuracy in her
to other important issues. first affidavit lacks conviction and raises a serious question in my mind as to the reliability of her evidence in relation
With a few important exceptions, the applicant ultimately agreed with most of MS Cooper's evidence. The critical issues on which they did not agree were first, whether the applicant understood what questions were asked of her at the restaurant on 26 May 1993, second whether the applicant said on that occasion that she worked 24 hours per week and third whether she said she was paid at the rate of $10 per hour.
Mr Singham's evidence was that the applicant worked 20 hours per week. Her working week was from Monday to Friday between the hours of noon and 5pm and she had one hour off for lunch between 3pm and 4pm. He also gave evidence, and produced records, to establish that the applicant was at the relevant time earning $300 per week nett after income tax. He employs about 10 staff altogether but keeps no records of their hours nor any rosters. From experience in other employment he was aware that a person holding a student visa was not permitted to work more than 20 hours per week.
THE FACTS I find the following facts.
At about 7.15pm on 26 May 1993 whilst the applicant was working as a cook at the Thai Oriental Cafe, 430 Bridge Road,
Department of Immigration and Ethnic Affairs being officers Richmond the premises were visited by six officers of the Liakopoulos, Harrison, McLeod, Peric, Lai and Cooper.
Having approached the applicant, who was standing near the takeaway counter, MS Cooper introduced herself and explained the purpose of her visit. The applicant said that she had her passport and, accompanied by MS Cooper, went to a backroom but was unable to locate the passport. MS Cooper and the applicant returned to the restaurant area and sat down at one of the tables where MS Cooper sought the applicant's personal and work details. At MS Cooper's request the applicant wrote her name and date of birth in MS Cooper's official notebook. In response to questions asked, the applicant gave her address, the date of her arrival in Australia and the period of time she had worked at the restaurant. MS Cooper wrote her answers in the notebook. The applicant told MS Cooper that she worked 24 hours per week, Monday to Friday 12 noon to 5pm. She explained that she was working at that time (being after 5pm) because she was filling in for a friend who was sick. MS Cooper wrote all these details in her notebook. She then again asked the applicant how many hours she worked at the restaurant and the applicant again said 24 hours per week. MS Cooper then told the applicant that she would check her details with the department and used a mobile telephone for that purpose. While she was waiting for a response the applicant returned to her work. At this stage MS Cooper mentioned to the team leader Mr Liakopoulos that the applicant
while MS Cooper was advised that the department had not been had said she was working more than 20 hours per week. After a able to locate the applicant on the computer. She conveyed
this information to the applicant and asked her to look again for her passport. The applicant went again to the backroom. A few minutes later MS Cooper followed her there by which time the applicant had located the passport and had showed it to Mr McLeod who handed it to MS Cooper who was able to confirm that the applicant held a student dependent entry permit valid to 15 March 1996. MS Cooper and the applicant remained in the backroom. MS Cooper advised the applicant that she needed to ask her a series of questions and would note her answers on a questionnaire. She said that because the applicant had worked more than 20 hours per week she appeared to have breached a terminating condition of her entry permit and she (MS Cooper) would have to consider whether to terminate her entry permit. She told the applicant she would have an opportunity to advise her why her entry permit should not be terminated. She asked the applicant if she had understood what had been said to which the applicant replied, yes.
MS Cooper then asked the applicant a series of questions from a standard form which had been supplied to her by one of her colleagues. ~uestions were put to the applicant as they appeared on the form and MS Cooper wrote the applicant's answers either beside or below each printed question. At the conclusion of the questionnaire the applicant was invited to read through the document which she did and said that a11 her
answers were true. MS Cooper made an endorsement to this effect and the applicant signed and dated the form. I set out in full the form of questionnaire together with the answers as
written by MS Cooper. The parts shown in italics are in MS Cooper's hand with the exception of the applicant's signature and the date which were written by the applicant.

QUESTIONNAIRE ON STUDENTS WHO ARE SUSPECTED OF BREACHING THE

CONDITIONS OF THEIR ENTRY PERMITS IN THAT THEY ARE WORKING IN
EXCESS OF 20 HOURS PER WEEK

1.     Date of interview. 26/5/93

2. N a m e wasana LIMPICHOTIPHONG

nee VIPAHANEERODE

3.          Address 1/386 Inkerman St S t Kzlda 5258686

4.          Name of company where student is working: Thai Oraental 430 Bradge Rd Rachmond

5. How long have you been working f o r t h r s company?

about 3 yea r s

6.        Is t h i s a f u l l t i m e job? no

7 .          How many hours per week do you work f o r t h i s company?

from 12-5pm Hon - Frzday f o r l a s t 2 yea r s

8.          What is your weekly earnings? $10 p e r hour

9.          Do you work anywhere e l se?

NO

10. Where d i d you work p r i o r t o working f o r t h i s company?

Yes, m Thai takeaway Barkly St S t Kzlda

11.	How long d i d you work there?
about one y e a r
12.	What was your weekly earnings w ~ t h t h a t company?

$7 p e r hour

13.	What co l l ege a r e you enrolled with?
Not en ro l l ed a t t h e moment I have s tudent dependant vzsa
14.	Do you a t t e n d c las ses? I f not why not and when was t h e
l a s t time you at tended classes? N/a
15.	Were t h e r e any condit ions on your v isa?

I can work 24 hours pe r week

16.       Were you aware t h a t a s a s tudent i n Aus t ra l i a you a r e not allowed t o work i n excess of 20 hours per week while your

course is i n session?

NO, I thought I could work 24 h r s p e r week

17.          A r e you aware t h a t by working i n excess of 20 hours pe r

week while your course is i n sess ion you a r e i n breach of t h e condi t ions of your ent ry permit and t h e r e f o r e your e n t r y permit could be cancelled?

NO

18.       Are t h e r e any reasons why your en t ry permit should no t be cancelled?

I have t o work t o wazt f o r mv husband t o f i n z s h school

and t o support ourselves. I d idn ' t know I was only

allowed 20 h r s work p week

The answers I have given a r e t r u e and cor rec t .	I have no t been
offered any inducement t o make these answers .
Signed	Wasana Vipamaneerode 26/~ay/93

(No explanation has been offered f o r t h e a l t e r a t i o n made t o t h e

answer t o ques t ion 16.)

MS Cooper then told the applicant that from the information given she had worked in excess of 20 hours per week and she (MS Cooper) had determined that the applicant had breached a terminating condition of her entry permit. MS Cooper made the following endorsement at the foot of the questionnaire.

Assessment

A/n (sic, abovenamed) admitted working 24 hrs per week. She claims she was not aware that she could only work 20 hours. Permit terminated as in breach of terminating condition. Decision discussed with Mr Liakopoulos.

(Signed) M. Cooper
26/5/93

MS Cooper informed the applicant that her entry permit was terminated and she had thus become an illegal entrant. She handed the following two documents to the applicant:

Department of Immigration, Local Government

and Ethnic Affairs

Victorian State Headquarters 55 King Street
Melbourne, Vic. 3000

Reference:	26/5/93
Dear MS WASANA VIPAMANEERODE

NOTICE OF INVALIDATION OF EN!CRY PERMIT BY DETERMINATION OF

BREACH OF A TERMINATING CONDITION

I am writing to you concerning your stay in Australia.

A delegate of the Minister responsible for administering the Higration Act 1958 has, under Regulation 2.23 (entry vlsa) or 2.36 (entry permit), determined that you have failed to comply with a terminating condition subject to which your entry visa or entry permit was granted, in that you were found to be engaged in work for more than 20 hours in any week during which the institution at which you are studying is in session.

The formal notification concerning the determination of breach

of terminating condition(s) 1s herewith attached.
Accordingly, as t h ~ s notrfication is deemed to be received by
you today, the 26th day of May 1993, your temporary entry
permit ceases to be in force on this day.

Given that you are no longer the holder of a valid entry permit, you are now an illegal entrant in Australia and therefore you are detained in custody pursuant to section 92(1) of the Migration Act 1958.

Yours sincerely

(Signed) M. Cooper

Compliance Branch

Department of Immigration, Local Dovernment and Ethnic Affairs

MIGRATION ACT 1958

DETERMINATION OF BREACH OF TERMINATING CONDITION

I, Megan Cooper, a delegate of the Minister of State responsible for admrnistering the Migration Act 1958, hereby determ~ne that Wasana VIPAMANEERODE, a non-citizen and holder of a Temporary Entry Permit/Entry Visa which includes a condition that the holder is not to engage m work (other than in relation to his or her course of study) for more than 20 hours in any week during which the institution at which the holder is studying is in session, has failed to comply with that condition.

In accordance with Regulation 2.3612.23 of the Migration Regulations, that Temporary Entry ~ermit/Entry Visa ceases to be in force on the day on which the holder is notified under Regulation 7.1

Dated this 26th day of May 1993 M. cooper

........ ........ ........ ..

(Signed)

Delegate of the Minister of State responsible for admrnistering the Migration Act 1958

The applicant read the notice and said she understood its

contents. She indicated that she understood its contents and

agreed to sign an acknowledgment to that effect at the foot of

the notice, which she did. Her signature was witnessed by Mr McLeod. The applicant was detained in custody and taken to a detention centre. She was released from custody on the following day. On 27 May 1993 MS Cooper attempted to interview the applicant at the department's office in William Street, Melbourne. The applicant requested an interpreter but none was available until much later in the day. There was however an interpreter present who had been engaged for another purpose and the opportunity was taken to have this interpreter explain to the applicant and some other Thai nationals a document called "Very Important Notice". Mr Singham also attended at the department on 27 May 1993 and put up a bond to secure the applicant's release from custody. On

. .

this occasion Mr Singham told MS Cooper that although the applicant had been at work later than her usual hours of 12 to 5pm she was not going to work the following day. On 28 May

1993 the applicant's solicitor Mr Woods wrote to MS Cooper

advising that his instructions were that the applicant

break for lunch for which she was not paid. He said that she

attended for work for 25 hours per week but took a one hour

had never worked more than 20 hours per week with Mr Singham. Mr Singham employed about 10 staff but kept no records of the hours worked by his employed nor any rosters in relation to this employment. On 1 June 1993 MS Cooper interviewed the applicant with the assistance of a Thai interpreter and in the presence of the applicant's husband. The interview took the form of MS Cooper working through a 16 page pro forma document headed "Report of Interview with suspected illegal entrant/deporteeU. MS Cooper wrote the applicant's answers adjacent to the various questions set out in the document. As part of the answer to one question (no. 7.3) the applicant said that she only worked 20 hours per week. In answer to another question (no. 10.1) the applicant said in part that she only worked 20 hours because she had a break between 3 - 4pm. Annexure B to the pro forma report is headed "Report on matters relating to Migration Regulations 178/179". The first question in this section is:

Do you believe that you are in Australia with or w~thout the authority of the Australian Government and why?

to which the applicant replied:

. .

Without because my visa cancelled but I would like have to prove that something missing. [sic]

By letter dated 2 June 1993 Mr Woods wrote again to MS Cooper and forwarded a statement from Mr Singham in which he said

work more than 20 hours per week, that she had never worked	that he understood that the applicant was not permitted to
more than 20 hours per week for him, that her normal hours were 12 to 5pm but that she took an hour off from 3pm to 4pm. Annexed to the statement was a copy of what was said to be Mr Singham's wages book showing wages paid to the applicant. This document covered the period from the week ending 5 July 1992 until the week ending 23 May 1993. It showed that for the 33 weeks from 5 July 1992 to 14 February 1993 the applicant's gross earnings were $287.45, from which $41.95 was deducted for tax leaving nett pay of $245.50. For the 2 weeks ending 21 February and 28 February 1993 the corresponding figures were $511.50, $111.50 and $400. In the case of these two weeks there was a notation which appears to be "bonus
100". For the 12 weeks from 7 March 1993 to 23 May 1993 the
figures shown were $356.85, $56.85 and $300. There was no record of any overtime having been paid.
On 4 June 1993 MS Cooper wrote to Mr Woods in the following terms :

Department of Immigration

and Ethnic Affairs

Victorian State Headquarters 55 King Street
Melbourne, Vic. 3000

Reference: V90/4125

4th June 1993

Mr James M Woods
Law Partners

PO Box 174

Richmond VIC 3121

Dear Mr Woods,

RE: Wasana VIPAWNEERODE

I refer to your letter of 2nd June 1993 in relation to mv

decision to ierminate Ms Vipamaneerode's entry permit and to the documents submitted by MS VIPAMANEERODE's emplover, Mr Bob .	-	-
Singam.

MS Vipamaneerode was the holder of a student dependant entry permit. This entry permit was subject to certain conditions, one of those conditions being a limitation on the amount of hours allowed to be worked each week. In this case MS Vipamaneerode's entry permit restricted her to 20 hours of work each week.

My determinataon that MS Vrpamaneerode had failed to comply with a terminating condition of her entry permit was based on my conversation with her on the 26th May 1993. At this time MS Vrpamaneerode advised that she worked at the Thai Oriental Restaurant for 24 hours each week. These hours are between 12 - 5pm Monday to Friday. MS Vipamaneerode confirmed thrs when intervrewed later on the same day.

As the amount of hours worked each week exceeded the limit, and in accordance wrth regulation 2.36, MS Vipamaneerode's entry permit was terminated. The termination took effect from 26th May 1993, that date MS Vipamaneerode was notified of the termination.

At a subsequent interview on 1st June 1993 MS Vipamaneerode informed me that her total working hours per week were 20 as she has a one hour break every day between 3 - 4pm.

Mr Singam's statement of 3rd June 1993, amongst other thrngs,

states that "...Wasana Vipamaneerode has worked no more than 20

hrs in any week whale she has worked in my employ".

The wages record submitted and statement made by Mr Sangam in support of MS Vipamaneerode have now been considered. Unfortunately, however, these documents do not gave reason to alter the original determrnation that MS Vipamaneerode had failed to comply with a termrnating condition of her entry permit.

The wage records provided by Mr Singam andrcate that between February and May of 1993 MS Vipamaneerode received gross weekly wages in excess of $356. As MS Vipamaneerode had stated at interview on 26th May 1993 she was being paid $10 per hour, thas represents more that (sic) 20 hours work each week.

Accordingly MS Vipamaneerode will need to provide evidence that she will be departing Australra before the expiry of her period of grace. Evidence of these arrangements will need to be produced to myself within seven days.

Yours Sincerely

(Signed) M. Cooper

Megan COOPER
For Manager
Compliance.

THE DECISION MAKING PROCESS

Notwithstanding her evidence that the interviews conducted at the restaurant were carried out in an environment of noise and activity, the applicant does not assert that she failed to understand any specific question that was put to her by MS

Cooper on the evening of 26 May 1993. Nor does she dispute MS

Cooper's record of the answers that were given. The applicant originally asserted, falsely, that she had asked for an interpreter. This she admits was not so and I am satisfied that the claim she originally made was made with the intention of misleading the Court. Be that as it may, she does not dispute that she said to MS Cooper that she worked for 24 hours per week and that she believed she was entitled to work that number of hours. She would have it that MS Cooper asked her how many hours she attended at the restaurant each week and that her answer was related to the span of hours from starting time to knock-off. But I reject that assertion. MS Cooper's purpose in interviewing the applicant was to check whether she had breached the term of her entry permit which limited the number of hours that could be worked. The way to do this was to ask precisely that. Any other question would not have elicited a relevant response. MS Cooper says she asked the applicant how many hours she worked per week. I accept that she did so, and I accept that the response given

on 2 occasions was 24. Further, the pro forma questionnaire	raises the same issue in the same direct terms ( 4 . 7 ) . The
fact that the latter question was not answered directly does not detract from the evidence that that was the question asked. I also reject the applicant's evidence concerning her answer to question 8 in the questionnaire. She would have it that she was asked what was her hourly rate and that she said, after some discussion, that it was nearer $10 than $20. MS Cooper's evidence is that she asked the question in the form on the pro forma and that the reply of $10 per hour was given without hesitation. The question of hourly rate was never again averted to by the applicant or her solicitor in the communications that followed on 27 May 1993 and later.
The applicant complains that in view of the inconsistency between her answers first that she worked 2 4 hours per week and second that she worked Monday to Friday from noon to 5pm (a total of 2 5 hours per week), MS Cooper should have enquired further to resolve the conflict. In my opinion it was perfectly proper for MS Cooper to accept the applicant's answers as evidence that she worked more than 2 0 hours per week, particularly as it transpired that the applicant said that she thought that she was entitled to work 2 4 hours. In

-

any event it has been established that there are no records kept of the hours actually worked and further enquiry would have been fruitless.

Having regard to all of the evidence and the facts proved, I

am of the opinion that there is no basis to review the decision made by MS Cooper on 2 6 May 1993 first that the	applicant had worked more than 2 0 hours per week, second that
the applicant had breached a terminating condition of her entry permit and third that the applicant's entry permit be terminated.
The respondent concedes that the decision made by MS Cooper on
4 June 1993 not to set aside her earlier decisions is a
decision which is reviewable in these proceedings. The applicant says that MS Cooper ignored the additional material provided after 26 May 1993 and that she based her decision of 4 June 1993 only upon what she had been told on 26 May. The further material consisted of first, assertions by both the applicant and Mr Singham that the applicant took an hour off for lunch between 3 and 4pm each day and second, a copy of the record of wages paid to the applicant. Neither Singham nor the applicant said anything about the applicant's hourly rate. MS Cooper was given no reason to doubt that the rate of $10 per hour given to her on 26 May 1993 was correct and on this basis, the further evidence as to her weekly earnings only tended to support her original conclusion that the applicant had worked more than 20 hours per week. It was properly within the scope of the decision making process to assess the relative weight of the competing evidence and it cannot be said that by rejecting the mere assertions of the applicant and Mr Singham, which were otherwise unsupported by any objective evidence, she thereby exposed her decision to review. In my opinion the decision of 4 June 1993 was arrived
at in accordance with a proper process of decision making and
there is no basis upon which to interfere with it.
THE NOTICE OF DETERMINATION Regulation 2.8 of the Miaration (1993) Reaulations provides, so far as is presently relevant as follows:

2.8 (1) .. ., if the Minister:

(a)	. ..
( b )	determines t h a t t h e holder of a v i s a o r e n t r y
permit has f a i l e d t o comply wi th a
te rminat ing condition subjec t t o which t h e
v i s a o r e n t r y permit was granted;

t h e Minister must	give,	i n accordance wlth subregulat ion
( 2 ) :

( C )	...
( d )	i n t h e case of a deternunation of a kind
mentioned i n paragraph (b ) -
n o t i c e of t h e determination t o t h e holder of
t h e v i s a or en t ry permit.

( 2 ) A n o t i c e t o a person (" the person") must be given

i n 1 of	t h e following ways:
(a )	...
(b )	...
( C )	by g iv ing t h e notice:
(i) t o t h e person personally; o r

(ii) ...

( d ) ...

( 4 ) Where a n o t i c e i s given i n accordance wi th

paragraph ( 2 ) ( c ) o r ( d ) , t h e provisions of

paragraph 7 . 6 ( l ) ( a ) , (h) o r ( c ) , a s t h e case

requi res , apply t o se rv ice of t h e notice.

On 26 May 1993, after completing the questionnaire MS Cooper

determined that the applicant had failed to comply with a	terminating condition subject to which her entry permit was
granted. The assessment written at the end of the pro forma questionnaire indicates that she had determined that the applicant had worked more than 20 hours per week. It is beyond question that the applicant's entry permit was granted subject to the condition that she must not engage in work for more than 20 hours a week during her stay in Australia and that this was a terminating condition.
Having made a determination of a kind referred to in paragraph 2.8(b) of the regulations, MS Cooper was required to give notice of the determination to the holder of the entry permit. The scheme of the regulations is that upon service of notice of the determination, the entry permit is thereupon terminated (Reg. 2.36).
MS Cooper purported to give notice of the determination by giving to the applicant personally the two documents referred to above, being a pro forma letter notifying the applicant of the determination and a pro forma "determination". It is quite apparent that the notice given to the applicant was not a notice which specified the actual determination made by MS Cooper. Both documents refer to a terminating condition "that the holder is not to engage in work (other than in relation to his or her course of study) for more than 20 hours in any week during which the institution at which the holder is studying is in session".
numbered 9104 in Schedule 9 to the regulations but rather was The condition referred to in the notice was not the condition
in the form of the condition numbered 9105. MS Cooper was unaware until it was drawn to her attention in the course of her evidence in Court that this error had been made.
The short question for the Court to determine is whether the notice given by MS Cooper on 26 May 1993 was adequate to comply with the requirement of regulation 2.8 to have the effect contemplated by regulation 2.36. In my opinion it was not an adequate notice. It did not notify the applicant of the determination which had been made namely that the applicant had failed to comply with condition 9104. The effect of giving notice of a determination of breach of a terminating condition is both drastic and immediate. The procedures set out in regulation 2.8 are precise and readily capable of strict compliance and the purpose of the regulation cannot not be achieved unless it is strictly complied with.
In my opinion regulation 2.8 was not complied with and it follows that the applicant's entry permit was not terminated in accordance with regulation 2.36 on 26 May 1993.

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CONCLUSION The application will be dismissed in so far as it seeks the review of the determination of MS Cooper made on 26 May 1993 that the applicant had failed to comply with a terminating condition subject to which her entry permit was granted namely	the condition that she must not engage in work for more than	20 hours a week during her stay in Australia, and the review
of the decision of MS Cooper made on 4 June 1993 declining to set aside her earlier determination.
However, in purporting to give notice to the applicant of the determination made on 26 May 1993 MS Cooper did not observe the procedures that were required by law to be observed in relation to the giving of such notice. The notice will therefore be set aside.
The applicant is entitled to a declaration that her entry permit was not terminated by operation of regulation 2.36 on
26 May 1993.
No relief has been sought in relation to the deportation order but in view of the decision I have reached concerning the termination of the applicant's entry permit there will be an order permanently restraining the respondent from giving effect to the deportation order made on 30 June 1993.

I certify that this and the preceding 23 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Olney

Associate: ~(~te?b;.~+

Dated:  5 August 1993

Dr J. Scutt (instructed by Law Partners) appeared for the applicant.

Mr T. Hurley (instructed by Australian Government Solicitor)

appeared for the respondent.

Date of Hearinq:	21 and 22 July 1993
Place:	Melbourne
Date of Judcrment:	5 August 1993