Mohammed v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 970
•27 JULY 2004
FEDERAL COURT OF AUSTRALIA
Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 970
MIGRATION – review of decision of Migration Review Tribunal – Tribunal affirming decision to cancel applicant’s student (temporary) (class TU) visa – whether Tribunal in error of law in concluding applicant breached condition 8105 – whether Tribunal asked wrong question or ignored relevant evidence – Tribunal did not ignore correspondence asserting work as part of course requirement – absence of evidence of specification of such work as course requirement – Tribunal did not ask wrong question in relation to qualification as ‘work’ – whether Tribunal denied procedural fairness – no contention open that Tribunal should have made inquiry – no contention open that Tribunal should have given applicant opportunity to comment upon information given by him for the purpose of the application
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 48, 116, 116(1)(b), 116(3), 359A, 359A(4), 420
Education Services for Overseas Students Act 2000 (Cth) s 10Migration Regulations 1994 Sch 8 cl 8105, subcl 8105(1), subcl 8105(2), regs 1.03, 2.01, 2.12, 2.43(2)
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 applied
SAM SUZZAMAN MOHAMMED v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W214 of 2003SAM SUZZAMAN MOHAMMED v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W4 of 2004RD NICHOLSON J
27 JULY 2004
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W214 OF 2003
W4 OF 2004
BETWEEN:
SAM SUZZAMAN MOHAMMED
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
RD NICHOLSON J
DATE OF ORDER:
27 JULY 2004
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.In W214 of 2003:
(a)The application be dismissed.
(b)The applicant pay the respondent’s costs of the application.
2.In W4 of 2004:
(a)The application be dismissed.
(b)The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W214 OF 2003
W4 OF 2004
BETWEEN:
SAM SUZZAMAN MOHAMMED
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
27 JULY 2004
PLACE:
PERTH
REASONS FOR JUDGMENT
PROCEEDING W214 OF 2003
The applicant brings a further amended application in reliance on s 39B of the Judiciary Act 1903 (Cth). He seeks review of a decision of the Migration Review Tribunal (‘the Tribunal’) made on 8 October 2003. In that decision the Tribunal affirmed a decision under review (made by a delegate of the respondent) to cancel the applicant’s Student (Temporary) (Class TU) visa. The application seeks that the Tribunal decision be quashed and set aside and the matter be referred back to a separately constituted Tribunal for hearing afresh. Alternatively, a declaration is sought that by reason of subcl 8105(2) of Sch 8 of the Migration Regulations 1994, the applicant did not contravene condition 8105 of his student visa.
The applicant first entered Australia on a student visa on 14 February 2000. On 1 November 2000 condition 8105 was amended by Statutory Rule 259 of 2000 having the effect of making cancellation of a student visa mandatory for breach of that condition. On 6 March 2001 the applicant was granted his third student visa. Condition 8105 was attached to it.
RELEVANT LEGAL PROVISIONS
The power to cancel a visa is provided for in s 116 of the Migration Act 1958 (Cth) (‘the Act’) which reads:
‘(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(b)its holder has not complied with a condition of the visa; or
…
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.’
Regulation 2.43(2) sets out prescribed grounds for cancellation of visa under s 116:
‘…
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(i)condition 8104 or 8105 (if the condition applies to the visa); or
(ii)condition 8202.’
Condition 8105 at the date of the grant of the review of the applicant’s visa, 6 March 2001, read:
‘8105
(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 Courses for Overseas Students.’
It is also necessary to have regard to the education services for Education Services for Overseas Students Act 2000 (Cth). Section 10 of that Act provides that the Secretary must cause a register to be kept for the purposes of the Act and must cause certain information (and only that information) to be entered in the register. Such information refers to the name of the approved provider registered to provide a specified course in a specified State or the name of its principal executive officer (if the provider is not an individual) and a number allocated to the provider for the purposes of the register. Additionally, any other matters prescribed by the regulations are to be entered. Reference to reg 2.01 shows that provision presently only has effect in the regulation with relation to matters such as addresses. It is common ground that course particulars (such as specification of work experience as a course requirement) are not matters required to be entered in the register.
It is therefore common ground that the reference to the register in condition 8105(2) of the conditions to the applicant’s visa is only able to identify that the course and its particulars have been entered in the register to the limits of the requirements of the Education Services for Overseas Students Act and the regulations and not otherwise. In short, the entry in the register identifies the course and provider but not the specification of work experience as a requirement of the course.
EVIDENCE OF APPLICANT’S WORK REQUIREMENT
Before turning to the reasons of the Tribunal it is appropriate to identify two items of correspondence which were relied upon, for the applicant in particular, to establish his compliance with condition 8105(2). The first was a reference dated 7 September 2003 from Caesar’s Café Restaurant in Fremantle. This purported to certify that the applicant worked at the restaurant for a period of 10 months, having been employed on a casual basis. It also said that ‘during this time he did work experience at different times as part of his course’. The second was a letter dated 9 September 2003 from the applicant’s course provider (Australian School of Tourism and Hotel Management ‘ASTHM’) which read ‘as part of the certificate he did 196 hours of unpaid work experience at the Parmelia Hilton and Caesar Restaurant Fremantle’.
Each of the above letters, which were relied upon before the Tribunal and on the hearing of the application for review in the case for the applicant, were referred to in a letter from the applicant to the Tribunal dated 8 September 2003. There he asserted that more than 160 hours of work experience which he had done at Caesar’s Café Restaurant ‘coincides with my course requirements (see attached letter provided from ASTHM)’.
In an earlier letter to the Tribunal dated 19 May 2003 the applicant had asserted that he had worked ‘in order to gain an expanded knowledge and experience at cooking to better my qualification and understanding’.
TRIBUNAL’S FINDINGS AND REASONS
In connection with the issue of the applicant’s non-compliance with condition 8105, the Tribunal recorded that the delegate had made a decision to cancel the applicant’s visa pursuant to s 116(1)(b) for non-compliance with condition 8105 based on a finding that the applicant had worked in excess of the prescribed 20 hours per week. The nub of the Tribunal’s reasoning appears from the following paragraph:
’27. The Tribunal has mainly turned its attention to whether Mr Mohammed has established compliance with condition 8105. The Tribunal has referred to Mr Mohammed’s statements in evidence, to the migration legislation and to case law. Mr Mohammed based his defence on arguments that his activities did not amount to work. He suggested that his not having been paid for all the hours he worked supported his argument that his activities were in the nature of ‘work experience’ unlike paid work. His employer and his education provider have both furnished written statements. His education provider has said that he completed 196 hours of ‘unpaid work experience’ and his employer has written that he decided to pay him. However, there is nothing before the Tribunal to indicate that the work Mr Mohammed undertook 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. This is a requirement for work experience activities to be recognised for the purpose of condition 8105. See subclause 8105(2) under legislation above.’
In relation to evidence of the occasions on which the applicant had worked prior to the completion of his studies on 20 December 2002 was addressed by the Tribunal as follows. It said that there were 15 occasions covered by such pay records, including December 2001 and January, February, March, April, July, August, September and October 2002. It found that several of these dates were within scheduled hours for his course. It considered there was clear evidence of his having breached visa condition 8105. It had brought that evidence to his attention and he had duplicated some of these records in materials sent to the Tribunal. It continued:
‘29…The conclusive evidence of Mr Mohammed’s work hours is in the form of payment records from his employer from December 2001 to January 2002. These records demonstrate that on fifteen occasions, he worked in excess of forty hours per fortnight. The Tribunal accepts Mr Mohammed’s defence that some of these occasions were during holiday periods. However, not all of the excess hours have been explained as occurring in holiday breaks. Mr Mohammed has sought to justify his long work hours over a sustained period in the year 2002, not by denying he served long hours, but by saying he was gaining work experience and was not always paid.
30. The Tribunal finds that Mr Mohammed’s activities were ‘work’ according to the definition of that term in regulation 1.03 whether or not he was paid. Therefore, the Tribunal further finds Mr Mohammed did not comply with condition 8105 of his student visa. It follows that his visa was liable for cancellation pursuant to section 116(1)(b) and that cancellation was mandatory under section 116(3) of the Act.’
GROUNDS OF REVIEW
The application for review contains two principal limbs. The first is that the Tribunal was in error of law because it asked itself the wrong question and ignored relevant evidence. It was therefore, it is contended, in jurisdictional error. Secondly, it is said the proceedings before the Tribunal failed to provide procedural fairness. I turn to the arguments in support of each of these contentions.
ASKING WRONG QUESTION; IGNORING RELEVANT EVIDENCE
The applicant contends that the Tribunal did not properly deal with the letter from ASTHM dated 9 September 2003, or the applicant’s submissions of 8 September 2003 and the letter from Caesar’s Café Restaurant. The submission is that the letter from ASTHM was evidence that it was ‘as part of the certificate’ that the applicant had done the 196 hours of unpaid work experience. Further, it is said that the applicant’s own submission was in terms that his work experience at Caesar’s coincided with his course requirements. Additionally it is said that the letter from Caesar’s Café Restaurant referred to his work experience being ‘as part of his course’. Therefore, it is said that the Tribunal could not have concluded that the applicant had undertaken work which was specified as a requirement of his course (particulars of which course were entered as required in the register).
There are three reasons why these contentions cannot succeed. The first is that none of the materials so relied upon are evidence that the work he undertook was ‘specified as a requirement of the course’. The assertion that his work experience was ‘as part of his course’ in the letter from Caesar’s Café Restaurant is unsupported by reference to any course requirements. Likewise, the applicant’s assertion in his letter of coincidence of a 160 hours of work experience with his course requirements is unsupported by evidence of specification of such work experience as part of the course requirements. Similarly, the assertion in the letter from the Director of Culinary Arts at ASTHM that his 196 hours of unpaid work at the Parmelia Hilton and Caesar’s Café Restaurant was as part of the certificate is itself not a reference to the specification of the course requirements.
Secondly, it is simply not open to argue that the Tribunal asked itself the wrong question or had no regard to this evidence. In par 27 of its reasons quoted above, there is an explicit reference to the written statements to which I have referred. The Tribunal (correctly) said that this did not provide it with evidence that the work the applicant undertook was specified as a requirement of the course.
Thirdly, as the Tribunal reasons consider, the applicant’s alleged work experience very substantially exceeded any amount which the condition could have required. In the written submissions for the respondent, a tabulation of the work undertaken by the applicant based on the evidence of payslips before the Tribunal from his work at Caesar’s Café Restaurant shows that the applicant worked the following hours for which he was paid (the dates in bold type representing the term time of the applicant’s course):
Two week period Hours worked 04 12 01 – 17 12 01 46.75 18 12 01 – 31 12 01 99 01 01 02 – 14 01 02 126 15 01 02 – 28 01 02 107.5 29 01 02 – 11 02 02 102 12 02 02 – 25 02 02 89.5 26 02 02 – 11 03 02 97.25 12 03 02 – 25 03 02 32.75 26 03 02 – 08 04 02 65 09 04 02 – 22 04 02 68.25 23 04 02 – 05 05 02 0 18 06 02 – 01 07 02 35.5 03 07 02 – 16 07 02 82.75 18 07 02 – 31 07 02 98 30 07 02 – 12 08 02 86.5 13 08 02 – 26 08 02 99 27 08 02 – 09 09 02 85.5 24 09 02 – 07 10 02 45 08 10 02 – 21 10 02 30.5
The totality of paid work during term time is 555.50 hours. This figure is very substantially beyond the figure which the applicant himself said was attributable to work he was doing as part of his certificate and course. Consequently, he would have been in breach, in any event, of condition 8105(1) because he would have engaged in work for more than 20 hours a week during any week when his course was in session.
Therefore, I do not consider that the first ground of the application can be made out.
It was contended for the applicant that in the second portion of its reasons quoted above the Tribunal had focussed on the requirements of reg 1.03 and the definition of ‘work’ and thereby disclosed that the Tribunal had taken a wrong approach to the issues before it. It is said that this is supported by reference to the above quoted immediately preceding passage.
I am unable to accept this additional submission. In par 27 (quoted above) the Tribunal expressly addressed the issue which the applicant says it should have addressed. Its comments on his work hours were associated with the issues addressed in that paragraph. The finding that his activities were ‘work’ within reg 1.03 as made in par 30 of its reasons were simply a subsidiary finding incidental to it addressing the main task. It did not ask the wrong question in this respect.
PROCEDURAL FAIRNESS
There are two limbs to the procedural fairness contention. The first is that the Tribunal failed to make any inquiries (consonant with s 420 of he Act) to ascertain whether the work undertaken by the applicant was a requirement of the course at the time when the course particulars were entered in the relevant register. However, there is no such duty to inquire: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ.
The second limb to the procedural fairness ground is that the Tribunal failed to give the applicant the opportunity to comment upon particulars of information (being those matters referred to in the above quoted portions of its reason), which it considered would be the reason or part of the reason for affirming the decision under review. It is said that this contravenes s 359A of the Act. I agree with the submission for the respondent that there is no substance to this claim. Section 359A(4) provides that the section does not apply to information ‘(b) that the applicant gave for the purpose of the application’. The matters referred to in those sections of the Tribunal’s reasons come within that description. There is no case that the Tribunal had regard to particulars entered in the register but not disclosed to the applicant.
CONCLUSION IN W214 OF 2003
For these reasons the application for review must be dismissed.
PROCEEDING W4 OF 2004
This application, which was made on 20 January 2004 is also before the Court by reason of an order of French J made on 16 February 2004. In this proceeding the applicant seeks relief in relation to the determination that an application he made for a subclass 136 visa (skills) was invalid by reason of s 48 of the Act. That section provides:
‘(1) A non-citizen in the migration zone who:
(a)does not hold a substantive visa; and
(b)either:
(i)after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or
(ii)held a visa that was cancelled under section 109 (incorrect information), 118 (general power to cancel), 134 (business visas), 137J (student visa) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes.’
See also reg 2.12, which prescribes the visas for which an applicant may apply. The visa class 136 is not prescribed in reg 2.12.
This application was advanced by the applicant on the basis that if the applicant succeeded in his application in proceeding W214 of 2003, then there would be no case for s 48 having the preclusionary effect. As that is not the case his related application in proceeding W4 of 2004 must also be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate:
Dated: 27 July 2004
Counsel for the Applicant in both proceedings: Mr RE Lindsay Solicitor for the Applicant in both proceedings: Wojtowicz Kelly Counsel for the Respondent in both proceedings: Mr JD Allanson Solicitor for the Respondent in both proceedings: Australian Government Solicitor Date of Hearing: 13 July 2004 Date of Judgment: 27 July 2004
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