Minister for Immigration, Local Government & Ethnic Affairs v Montero, F

Re: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
And: FERNANDO MONTERO
No. D G9 of 1991
FED No. 485
Migration
(1991) 31 FCR 50

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Spender(1), French(1) and Von Doussa(1) JJ.

CATCHWORDS

Migration - visitor class visa issued subject to a condition prohibiting work - cancellation of the visa before entry into Australia - whether the respondent intended to work - meaning of "work" - scope of the Minister's power to cancel a valid visa at any time in his absolute discretion - whether decision to cancel visa involved an error of law.

Migration Act 1958, ss.4(5)(b), 17, 18, 23, 26, 176(1)

Migration Regulations 1989, reg.18

HEARING

DARWIN

#DATE 14:8:1991

Counsel for the appellant : Mr P. Roberts

Solicitor for the appellant : Australian Government Solicitor

Counsel for the respondent : Mr C.R. McDonald

Solicitor for the respondent : N.T. Legal Aid Commission

ORDER

The appeal be dismissed with costs.

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

JUDGE1

This is an appeal from a decision of a judge of this Court (Olney J.) made under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") which set aside the decision of a delegate of the appellant made on 10 March 1991 to refuse the respondent entry into Australia and to cancel a valid visitor class visa which had earlier been issued to him through the Australian Embassy in Manila on 20 February 1991.

The appeal raises for consideration the meaning of a condition which attached to the visitor class visa that the holder not perform any work in Australia without the permission of the Secretary to the Department of Immigration, Local Government and Ethnic Affairs, and in particular whether the proposed activities of the respondent in Australia, as believed by the delegate at the time of his decision, could constitute "work".
The respondent is a citizen of the Republic of the Philippines. He arrived by aeroplane from Brunei at Darwin airport in the early hours of 10 March 1991. Under the Migration Act 1958 ("the Act"), s.17, the holder of a valid entry visa may enter Australia after disembarkation at a proclaimed airport. Darwin airport is a proclaimed airport. A person arriving in Australia by aircraft who disembarks at a proclaimed airport is deemed to enter Australia when he or she leaves the airport: para.4(5)(b). By s.8 of the Act where the holder of an entry visa enters Australia pursuant to s.17, the visa has effect, immediately after the holder's entry, for all purposes as if it were an entry permit granted subject to any conditions, and to any limitations as to the time the holder is authorised to remain in Australia, that are specified in the visa.
Section 23 provides for the making of regulations concerning, among other matters, the granting of visas subject to conditions including under para.23(4)(c) "a condition imposing restrictions about the work that may be performed in Australia by the holder, including restrictions on performing

(i) any work;

(ii) work other than specified work; or

(iii) work of a specified kind;

without the permission in writing of the Secretary."

Regulation 18 of the Migration Regulations 1989 prescribes conditions which must attach to the grant of visas of different classes. A visitor class visa may only be granted subject to the condition "holder not to perform any work without permission in writing of the Secretary". When the respondent arrived at the Darwin airport he was the holder of a visitor class visa, the endorsement of which in his passport clearly drew attention to the mandatory condition. The endorsement stated, "work prohibited". There is no dispute that the respondent was at all times aware of this condition.
The Minister may at any time, in his absolute discretion, cancel a valid visa: s.26, and the Minister may delegate to a person any of the Minister's powers under the Act: sub.s.176(1). The decision to refuse the respondent entry into Australia and to cancel his visitor class visa was made by an Immigration Inspector, James William McLoughlan to whom a delegation of power had been made.
The review under the ADJR Act was conducted on affidavit evidence. There were several affidavits filed by the respondent; and on behalf of the appellant, two by Mr McLoughlan, and two by Ms Consuelo Stewart, a telephone interpreter who interpreted conversations between Mr McLoughlan and the respondent. No deponent was cross-examined. Olney J. based his findings of fact upon the affidavits filed on behalf of the appellant which he considered provided a convenient summary of what occurred. There were points of difference in the recounting of two conversations between Mr McLoughlan and the respondent in the respective affidavits of Mr McLoughlan and Ms. Stewart. Olney J. said:

"Although the second respondent (Mr McLoughlan) was not cross-examined on his affidavit, it is clear that his recounting of the conversations is based upon his memory and purports only to state the effect of what was said. There is no suggestion that the second respondent made any contemporaneous notes from which he has since refreshed his memory. In these circumstances I regard the notes made by the interpreter as a more satisfactory record of the substance of the conversations..."

The appellant contends that the learned primary judge erred in rejecting Mr McLoughlan's version of the conversations as "it was not subject to cross-examination or challenge", and that in doing so he wrongly descended into a determination of the merits which is not permissible in judicial review. These contentions are misconceived. The difference between the two versions of the conversation had to be resolved to enable the court to determine what was said by Mr McLoughlan and by the respondent. The ascertainment of the facts which constitute the material before a decision-maker at the time when the decision was made does not involve a consideration of the merits of the decision-maker's decision. As the differing versions of the conversation were contained within the affidavits filed on behalf of the appellant, the failure of the respondent to cross-examine either of the deponents to those affidavits provides no reason why the version of one of the appellant's witnesses, rather than another, should be accepted. The appellant complains that the absence of cross-examination of Mr McLoughlan required the trial judge to accept his version. But the same argument would apply also to Ms Stewart's version, and material differences in the two versions cannot stand together.

After the respondent arrived on an incoming flight, he first came to notice after having passed through the primary line barrier. His Inward Passenger Card indicated that he was visiting relatives but gave only a post office box as his intended address. Mr McLoughlan approached the respondent and had a short conversation with him in words to the following effect:

"Q. Who are you visiting?

A. My sister.

Q. What's her address?

A. I don't know but I have a paper with it on."

The respondent then produced an Affidavit of Support, signed by Joseph Muscat and Teresita Muscat of Humpty Doo in the Northern Territory, which he had amongst his luggage. Mrs Muscat was the respondent's sister. Mr McLoughlan noted Mrs. Muscat's address on the respondent's Passenger Card. In the Affidavit of Support, sworn on 4th September 1990, Mr Muscat deposed that he was employed by Commonwealth Industrial Gases Ltd N.T. on an annual salary in excess of A$25,000.00, and Mrs Muscat deposed that she was employed by Inghams Chicken Farms N.T. on an annual salary in excess of A$18,000.00. Mr and Mrs Muscat guaranteed to defray all expenses of the respondent in travelling from and returning to the Philippines, and to provide the respondent during his stay in Australia with board, accommodation and all other living expenses. The purpose of his journey was said to be for "family reunion and vacation".

The respondent then proceeded to the baggage inspection area. A short time later Mr McLoughlan was approached by a customs officer from the baggage inspection area who produced the respondent's passport and informed Mr McLoughlan that the respondent had no money. Mr McLoughlan advised him that he had sighted an Affidavit of Support for the respondent.
The customs officer then informed Mr McLoughlan that the respondent had hardly any luggage, but did have a lot of documents, some of which were not in his own name. Mr McLoughlan agreed to examine the documents at the baggage inspection area. He was shown a number of documents and examined them briefly in the respondent's presence. The respondent agreed that he had brought the documents into Australia. Questions were asked about certain of the documents in the name of John Montero and Mario Celis. The respondent's response to the questioning caused Mr McLoughlan to think that he might need the assistance of an interpreter.
Mr McLoughlan noted that the respondent's Inward Passenger Card indicated that his usual occupation was "cook". On further examining the respondent's documents he saw that there were menus, recipes and references from former employers, among them. He asked the respondent why he had brought these papers to Australia but the respondent appeared not to understand.
Mr McLoughlan then ascertained that the respondent's mother, and a friend Ms Atkinson, were present at the airport to meet the respondent. He had a conversation with them, during which he was informed by Ms Atkinson that the respondent's sister conducted a food stall at the Rapid Creek market.
In a report prepared by Mr McLoughlan within a few hours of the events at the Darwin airport, he wrote that Ms Atkinson "confirmed that Teresita Muscat operates stalls at the Parap and Rapid Creek Markets". This statement is inconsistent with the effect of his conversation with her deposed to in his affidavit. The trial judge in his reasons for judgment does not refer to this statement, but by implication he has rejected it as inaccurate, as he has found as a fact that Ms Atkinson spoke only of a stall at the Rapid Creek market, and that Mr McLoughlan made the decision under review in the belief that Mrs Muscat operated one market stall.
After sorting through the respondent's documents Mr McLoughlan contacted Ms Stewart and requested that she introduce herself to the respondent and act as interpreter. With the use of a dual handset telephone Mr McLoughlan and the respondent then conversed through Ms Stewart's interpretation. The substance of the conversation, as found by the learned trial judge, was that Mr McLoughlan asked the respondent the purpose of his visit. He said it was to visit his mother and sister whom he had not seen for many years. The respondent's usual occupation as a cook was confirmed, as was the fact that he had worked as a cook in Saudi Arabia and the Philippines. (The documents in the respondent's possession confirmed that he had worked in Saudi Arabia between 1980 and 1986 and subsequently in the Philippines as a cook). Mr McLoughlan then referred to the recipes and menus which the respondent had with him, and to the fact his sister sells food at a market in Darwin. Mr McLoughlan asked the respondent if he would do the cooking (presumably for the market stall). The respondent replied that he would help his sister prepare food at her home. The interpreter's notes show the word "help" is underlined. Mr McLoughlan then posited that the sister may give him money for helping and asked what he would do with the money; would he receive it? The respondent replied that he would receive it as pocket money. As the learned trial judge observed, it is not without significance that Mr McLoughlan referred to the possible receipt of money from the sister for "helping" thus taking up the explanation earlier given by the respondent. Mr McLoughlan informed the respondent, according to the interpreter's notes, that he "can't do cooking for sister", and the respondent replied "so, just teach sister". In response to further questions as to his family the respondent said that he had a wife, two children and property in the Philippines and had no intention to stay in Australia beyond six months.
The evidence before the court failed to reveal the exact nature of the Rapid Creek market at which the respondent's sister conducted a stall, but it was accepted as common ground between the parties before Olney J. that each Sunday morning at the Rapid Creek shopping centre in suburban Darwin various stalls are set up at which a great variety of goods, including food, may be purchased. His Honour observed that it is a feature of this market that the various food vending stalls reflect the cosmopolitan population of Darwin and could be expected to sell food of a type typical of the ethnic origin of the stall proprietor. In this case the respondent's sister, being of Filipino origin, could be expected to sell Filipino food. Olney J. assumed for the purposes of his decision that the Rapid Creek market would be conducted weekly on Sundays throughout the respondent's proposed stay in Australia. His Honour found that there was no material before Mr McLoughlan to suggest that the respondent's sister engaged in any other market than that of Rapid Creek.
On the hearing of this appeal counsel for the appellant contended that there was no material before Mr McLoughlan about the nature of the Rapid Creek market, and the assumptions made by Olney J. about the likely level of commercial activity of Mrs Muscat's food stall were not justified by the material before the Court. It was contended that it was open to Mr McLoughlan to infer that Mrs Muscat conducted a business with a large turnover such that the preparation of food beforehand would require Mrs Muscat to engage another person to assist her if help were not forthcoming from the respondent. As will shortly appear, Olney J. proceeded on the footing, based on the assumptions set out in the preceding paragraph, that the information before Mr McLoughlan when he made his decision was to the effect that Mrs Muscat's stall was a small one which operated for only a few hours each Sunday. We do not think his Honour erred in doing so. The case was conducted on the footing that residents of Darwin, including Mr McLoughlan, would be familiar with the Rapid Creek market, and would make the assumptions which were common ground at the trial.
The learned trial judge summarised the facts as they were known to Mr McLoughlan at the time of making his decision in the following terms:

"...the (respondent's) mother and sister had resided in Australia for upwards of eight years; the (respondent's) sister conducted a food stall at a small suburban market for a few hours one day a week; the (respondent) gave his occupation as cook; he had in his possession some employment references, menus and recipes; he said he would help his sister at home prepare food for her stall but when told he was prohibited from doing that he said he would teach his sister (presumably to cook the recipes that he had with him). There was no suggestion that he would receive payment for helping his sister, but when the proposition was put to him that his sister may give him money, he said he would receive it as pocket money. This latter comment is of course in the context of a visitor who has already produced an affidavit from his sister and her husband undertaking to support the (respondent) during his stay in Australia."

Upon the information received by Mr McLoughlan in his conversations with the respondent, and from the documents in his possession, he formed the opinion that the respondent was intending to assist his sister in the preparation of food for her market stall and was therefore intending to "work" in breach of his visa condition. In the affidavits filed before Olney J. Mr McLoughlan deposed that the matters that he took into account in reaching his decision were:

(1) The Applicant's admission that he was a cook by occupation;

(2) The presence of menus and recipes in the Applicant's baggage;

(3) The Applicant's stated intention of assisting his sister in the preparation of food for sale at her market stall for which he may receive some payment;

(4) That the Applicant's visa was issued subject to the mandatory condition that he not work without the permission in writing of the Secretary of the Department of Immigration, Local Government and Ethnic Affairs;

(5) That the assistance which the Applicant intended to provide to his sister, whether paid or unpaid, would be "work" contrary to his visa condition;

(6) That refusal or failure to comply with a visa condition is a ground for cancellation of the visa;

(7) That there were grounds to believe the Applicant would fail to comply with the visa condition;

(8) That the Applicant did not therefore intend to make a genuine visit to Australia in accordance with his visa;

(9) That it is the policy of the Department of Immigration, Local Government and Ethnic Affairs that persons not be permitted to enter Australia to perform work which might otherwise be available to an Australian citizen or permanent resident;

(10) The difficulty in adequately monitoring the Applicant's compliance with his visa during his stay in Australia in light of his stated intention of working at his sister's home, the resources of the Department and the number of overseas entrants present in Australia;

(11) That the job references and the documentation in the Applicant's possession were not consistent with a person entering Australia for the purpose of visiting close family and were not necessary solely as a means of identification, but could be used for the purpose of seeking employment as a cook. Mr McLoughlan considered there to be a risk that the Applicant would seek such employment. This caused Mr McLoughlan to further doubt that the Applicant was intending a genuine visit to Australia in accordance with his visa and its conditions;

Mr McLoughlan deposed that at the time when he made his decision he was aware, from reading a departmental "procedures advice manual" available to him, that unpaid activity could constitute work. The relevant statement in the procedures advice manual reads:

"For the purposes of visitor entry, "work" means the undertaking of activity in Australia in a paid or unpaid capacity."

Mr McLoughlan was also aware of the decision of this Court in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 through a departmental minute which had informed him that "work" included engaging in one's regular occupation, whether paid or unpaid. In relation to Mr McLoughlan's understanding of "work" prohibited as a condition of the respondent's visa, Olney J. said:

"I think that if nothing else is certain in this case, it is abundantly clear that the Departmental definition of work cannot be taken to be literally correct. The concept of 'the undertaking of activity' is so broad as to include all of the normal adjuncts of daily living. At the best, the definition can only be regarded as valid to the extent that it draws attention to the fact that payment is not a necessary criterion to establish that any particular activity is 'work'."

His Honour then discussed Broussard's case where the court considered whether the pursuit by a priest of his vocation in his church for no wage or salary, although his day to day needs were met by the local parish, broke a condition attaching to his temporary entry permit that "employment prohibited without written permission of an authorised officer". In Broussard Gummow J. had said at pp 475-476:

"... the applicant stresses the irregular hours in which a priest performs his duties and the absence of a wage or salary in the ordinary sense of that term. However, as the definition of 'employment' in the Oxford English Dictionary (2nd ed, 1989) shows, the ordinary usage of that term includes a business or an occupation. In my view, the sense of the condition imposed in this case pursuant to s.6(6) of the Act is that the holder of the temporary entry permit is prohibited, without written permission from an authorised officer, from engaging in employment, not only in the sense of regular employment as a member of the general workforce, involving receipt of a wage or salary, but also in the sense of pursuit of any business or occupation. The pursuit of the vocation of a priest in the applicant's Church would, in my view, properly be regarded as the following of an occupation. Further, in my view, to engage in one's regular occupation is to work, whether or not one's labour is in return for a wage or salary in the ordinary sense. Accordingly, in my view, the decision maker did not fall into error when she gave weight 'to the fact that the applicant had worked in Australia without permission'."

Olney J. considered no relevant distinction can be made between the concept of employment as discussed in Broussard, and that of work in the present case, so that to engage in one's regular occupation, whether or not a wage or salary is paid, is to work. His Honour considered that neither that proposition, nor a submission by counsel then appearing for the appellant that "work" did not include personal exertion exclusively for domestic, social or recreational purposes assisted in deciding whether the respondent, in helping his sister in her home to prepare food for her to sell in her market stall, would be engaging in his regular occupation. His Honour observed that an enormous range of hypothetical cases can be put to demonstrate the difficulties involved in this type of case, and said that it was beyond the proper function of a judge to attempt to do what Parliament has failed to do - to provide a definition which would be applicable in every instance. His Honour expressed his ultimate conclusions as follows:

"...I think it is fair to say that whatever the applicant may have intended to do for his sister, it was essentially of a domestic and social nature. It was no more than any visitor may do for his host. It cannot be sensibly said that by helping his sister at home by way of showing her how to cook certain special recipes the applicant would be engaging in his regular occupation any more than a visiting motor mechanic could be said to engage in his occupation by helping his host, or indeed a stranger, start his car. In my opinion it was not open to the second respondent on the basis of what he knew about the applicant to reach the conclusion that he intended to engage in his regular occupation. In my opinion the second respondent's understanding of the concept of work for the purposes of applying the condition attached to the applicant's visa, based as it was on the definition contained in the departmental procedures advice manual and his understanding of the decision in Broussard and his conclusion that the applicant intended to engage in his regular occupation, were both incorrect. Accordingly, the decision to refuse entry and cancel the visa involved an error of law, and should be set aside. The matter should be remitted to the original decision maker to be dealt with according to law."

Before this Court counsel for the appellant contended that in the exercise of delegated power under s.26 of the Act Mr McLoughlan had an "absolute discretion" to cancel the visa of the respondent; and that he was at liberty to formulate his own criteria and tests for the exercise of that discretion subject only to those criteria and tests being for the purpose of the Act: Shrimpton v The Commonwealth and Anor. (1945) 69 CLR 613. The test which Mr McLoughlan adopted was, in effect, whether he had reason to believe that the respondent intended to break the condition of his visitor class visa. This was an appropriate test. Provided there were reasonable grounds for Mr McLoughlan reaching this belief then the decision was lawful. It was then contended that on the information before Mr McLoughlan a reasonable ground existed for his belief that the respondent intended to "work".
Counsel for the respondent did not dispute that it would be a proper exercise of discretion for Mr McLoughlan to cancel the respondent's visa if he believed on reasonable grounds that the respondent intended to break a condition of his visa, but counsel contended that on the information before Mr McLoughlan, as found by the primary judge, that belief was not reasonably open. The decision of Mr McLoughlan was based on an erroneous understanding of the meaning of "work".
The discretion vested in the decision-maker under s.26 although described as absolute, is not arbitrary or unlimited. It is one that must be exercised bona fide and for the purposes of the Act and regulations thereunder: Shrimpton v The Commonwealth and Anor at 619- 620. If the discretion were exercised because of a bona fide belief, based on reasonable grounds, that the holder of a valid visa intended to break a condition attaching to the visa, the exercise would clearly be for the purposes of the Act and regulations. But despite the width of the discretion, the decision-maker in the exercise of the discretion, must not decline to take into account matters that he ought to consider, or take into consideration extraneous and irrelevant matters: ADJR Act paras.5(1)(e) and 5(2)(a) and (b); Shrimpton v The Commonwealth and Anor. at 626-627. If the exercise of discretion is based on an erroneous understanding of the meaning and scope of the mandatory condition attaching to the visa the decision will involve an error of law and vitiate the decision: ADJR Act para.5(1)(f).
It is apparent from the conclusions of Olney J. which are set out above that his Honour set aside the decision under review on the ground that it involved an error of law, within the meaning of para.5(1)(f) of the ADJR Act, as to the meaning and scope of the visa condition prohibiting "work". Elsewhere in his reasons for judgment he observed that: "If the proper construction of the term 'work' as used in para.23(1)(c) does not encompass the activities in which the applicant (now respondent) said he intended to engage whilst in Australia, it would be fair to say that the second respondent's decision to cancel the visa involved an error of law". A submission made on the appellant's behalf that Olney J. decided the case as one falling under para.5(1)(h) of the ADJR Act finds no support in the reasons for judgment, and we reject it.
The term "work" is not defined in the Act. It is a word in common usage and it is to be accorded its ordinary meaning, there being nothing in the context of the Act to suggest otherwise. The word "work" describes "exertion directed to produce or accomplish something; labour; toil" and "employment; a job, esp that by which one earns a living": The Macquarie Dictionary.
It is a term which frequently connotes activity of the mind or body undertaken in exchange for monetary reward, and may aptly be used to describe a person's occupation or employment, which again, will usually be pursued by that person for monetary reward. The payment of a monetary or other material benefit will be a strong indication that the activity undertaken is "work". But monetary reward is not a necessary component of "work" which has a wider meaning in the Act: Broussard v Minister for Immigration and Ethnic Affairs, supra.
Just as in some cases the pursuit of an activity for the purpose of gaining a livelihood or monetary reward will lead to the conclusion that the activity constitutes "work", there will also be cases where an activity is so clearly in pursuit, for example, of leisure or a hobby that beyond question no element of "work" in the ordinary sense of the term will be involved. Between the two extremes will fall cases where no particular factor is conclusive. In these cases considerations such as the length of time an activity is pursued, the nature and the purpose of the activity, other activities being pursued more or less contemporaneously with the activity in question, and the obligation of the person to undertake the activity, may bear on the decision whether the activity is fairly to be described as "work". In the end, the decision is one of fact and degree which must be decided in all the circumstances of the case. Decisions in decided cases will assist in elucidating the limits of the meaning of "work" as used in the Act, but it is not possible to lay down a universal test. The term "work", in the abstract, and in the context of the Act, is probably incapable of precise definition.
In the present case Olney J. referred to the proposed activities of the respondent as being "essentially of a domestic and social nature". It is not improbable that his Honour chose that expression in light of the submission made to him by counsel for the appellant (then the respondent) that work meant "personal exertion not exclusively for domestic, social or recreational purposes". His Honour did not accept that attempt at definition, but observed that "it may provide some guide as to what is not work". The definition suggested by counsel would serve only to replace the need to make an evaluative judgment of what constitutes "work" with a test that required judgments no less difficult to make as to what activities are domestic, social, and recreational. Such judgments would still depend on all the circumstances of the case, and the test would introduce a consideration which is not expressed in the Act, namely that the activity be "exclusively" of a particular kind. On the other hand the domestic, social or recreational purpose of an activity might, in association with all the facts of a case, provide, as Olney J. said, some guide to what activities do not constitute work.
The extent of the activity in question is a matter to be taken into account. In the present case the degree of assistance or teaching in the skills of cooking which the respondent intended to provide his sister might well have been minimal. Yet the extent of the activity is not a matter to which the factors taken into consideration by Mr McLoughlan advert. The conclusion reached that the respondent's proposed activities - which the respondent said, after being warned that helping his sister was not permitted, would be confined to teaching her recipes - would constitute work indicates that he applied a test which included those activities, even if unpaid. When regard is had to the respondent's stated purpose for his visit, the fact that he was to stay with his mother and sister from whom he had been separated for a long time, the offer of accommodation and support from Mr and Mrs Muscat both of whom were in regular employment when the respondent's visit was arranged, and the limited nature of Mrs Muscat's food stall, we do not consider that the information available to Mr McLoughlan could reasonably be regarded as indicating that the respondent's intended activities in Australia would be work contrary to the visa condition. We consider the conclusion reached by Olney J. that Mr McLoughlan misunderstood the concept of work was correct on the material before the Court and should be upheld.
Counsel for the appellant submitted that the finding made by Olney J. that Mr McLoughlan also erred in law in concluding that the respondent intended to engage in his regular occupation as a cook by providing assistance to his sister could not be supported as Mr McLoughlan nowhere in the material before the Court had expressed this conclusion. It is true that such a conclusion is not expressed in so many words by Mr McLoughlan in his affidavits, but he does refer to the respondent's admission that he was a cook by occupation, and to his awareness of the decision in Broussard v Minister for Immigration and Ethnic Affairs, implying that it was relevant to his decision. Broussard could only be relevant if the respondent intended to engage in his regular occupation, whether paid or unpaid. We consider his Honour's finding was justified, and we also agree that the material before Mr McLoughlan did not disclose that the respondent's assistance to his sister could amount to him engaging in his regular occupation.
Counsel for the appellant further submitted that the primary judge took a view of the material before Mr McLoughlan which was too narrow. It was submitted that Mr McLoughlan had before him firstly, the statement from Ms Atkinson that Mrs Muscat operated stalls at both the Parap and the Rapid Creek markets, secondly, papers in the name of John Montero, and thirdly, the menus, recipes and references from former employers which the respondent could use to assist him in gaining employment in Australia. The Court's attention was also referred to paragraph 14 of Mr McLoughlan's affidavit sworn on 8 April 1991 which reads:

"As we were speaking, a Customs Officer, Mr Parkes, entered and asked to see me outside. I asked Ms Atkinson to excuse me for a few moments and left the office. Mr Parkes was with the Applicant. He said to me words to the following effect: 'This man's just said that he's going to work in Australia.' Mr Parkes then said to the Applicant: 'Are you going to work in Australia?'

The Applicant gave no answer. I informed Mr Parkes that, for the purpose of further questioning the Applicant, I would be arranging for the services of an appropriate language interpreter. At that point, I escorted Ms Atkinson from the Immigration Airport Office to the area outside the arrival lounge where she had previously been, advising her that I wanted to speak to Mr Montero."

It was submitted that it was open to Mr McLoughlan on all this material to form a reasonable belief that the respondent intended to work.

The appeal cannot be upheld on this ground. Taking the matters raised by the submission in turn, firstly, the alleged statement of Ms Atkinson about Mrs Muscat operating two stalls was, as we have earlier stated, not accepted by the primary judge. Secondly, John Montero to the knowledge of Mr McLoughlan was the respondent's brother. The papers in the possession of the respondent were a copy of a tax return for the year ended 30 June 1990, during which time John Montero had worked in Australia. Mr McLoughlan had ascertained that John Montero had entered Australia on a valid entry permit which permitted him to work. Counsel did not suggest how those papers could assist the respondent to obtain employment in Australia. Mr McLoughlan apparently saw no such significance, and he did not consider the John Montero papers to be relevant to the making of his decision. Thirdly, as for the menus, recipes and references, Mr McLoughlan did take them into consideration: see paragraph numbered (11) of the matters he said he took into consideration. He considered those documents were not consistent with a person entering Australia to visit close family members and were not solely as a means of identification but could be used for the purpose of seeking employment as a cook. However, as the affidavit of Mr McLoughlan discloses, he treated the risk that the respondent would seek such employment as the cause for "further doubt that the (respondent) was intending a genuine visit to Australia...". The process of reasoning of Mr McLoughlan so exposed illustrates that his decision was based primarily on the belief that assistance by the respondent to his sister would constitute "work". That belief was, for reasons already given, based on a misunderstanding of the meaning of the term "work". It cannot be said that had he not misunderstood the meaning of the term his decision would have been the same. The operative decision to refuse entry and to cancel the respondent's valid visitor class visa therefore involved an error of law within the meaning of para.5(1)(f) of the ADJR Act: Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 353, 384. Finally, the transcript of the proceedings before the primary judge discloses that objection was taken to the admissibility of paragraph 14 of Mr McLoughlan's affidavit. It was received into evidence on the limited ground that it formed part of the history leading up to Mr McLoughlan's conversations through the interpreter with the respondent. The alleged admission to the customs officer was not referred to by Mr McLoughlan in those conversations, and it was conceded before the primary judge that the statement of the customs officer played no part in the decision made by Mr McLoughlan. In view of that concession the alleged admission cannot now provide a ground for arguing that the decision of Mr McLoughlan was based on material other than that which the primary judge held formed the basis for his belief, and that his decision does not necessarily involve the error of law as to the meaning of "work" which Olney J. detected.
In our opinion the appeal should be dismissed with costs.

[1991] FCA 485

14 AUGUST 1991