Pannu v Minister for Immigration & Anor - [2006] FMCA 883

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PANNU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 883

MIGRATION – Review of decision by Migration Review Tribunal – applicant alleges Migration Review Tribunal failed to provide interpreter – whether interpreter required for purposes of communication – whether failure to provide interpreter is breach of natural justice – meaning of “work” in condition 8107 of visa.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116; 357A; 360; 366C; 366C(2); 366C(3); 474; div.2 pt.8; div.5 pt.5
Migration Regulations 1994, sch.8

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

Applicant:

HARBIR KAUR PANNU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

SYG390 of 2006

Judgment of:

Emmett FM

Hearing date:

15 June 2006

Date of last submission:

15 June 2006

Delivered at:

Sydney

Delivered on:

7 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr A. Kumar

Counsel for the Respondent:

Mr G. T. Johnson

Solicitors for the Respondent:

Ms J. Pownall, Australian Government Solicitor

ORDERS

The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $5000.
Order 2 is stayed for a period of 14 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG390 of 2006

HARBIR KAUR PANNU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 11 January 2006 pursuant to s.39B of the Judiciary Act 1903 (Cth) and div.2 of pt.8 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal affirmed a decision of a delegate of the First Respondent made 23 September 2004 to cancel the applicant’s Temporary Business Entry (Class UC) visa.
The applicant arrived in Australia on 10 January 2003 as the holder of a Temporary Business Entry (Class UC) visa (“the Applicant”). Condition 8107 of her visa provided that she must not engage in “work” for another person or on her own account while undertaking the employment in relation to which the visa was granted (sch.8 of the Migration Regulations 1994).

The hearing before this Court

The Applicant was represented by Counsel at the hearing before this Court. The Applicant relied on the following 3 grounds of her amended application (“the Amended Application”) filed on 21 March 2006:
“1. That the Tribunal did not observe the procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision.
7. The Tribunal did not act according to the natural justice.
5. That the mere location of the applicant at the place of employment is not a ground for cancellation of Visa under Section 116 of the Migration Act.”
The Amended Application contained 6 other grounds that were abandoned at the commencement of the hearing.
At the outset of the hearing, by consent, the names Harminder Pal Singh Pannu, Jasveen Pal Sing Pannu, Anjandeep Kaur Pannu, Reuben Sing Pannu were removed from the Applicant’s application as they had been added in error and without leave of the Court. No leave was sought by either party to have any further person joined to the proceeding as an applicant.

Ground (a) – “The Tribunal did not observe the procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision”

Ground (a) was ground 1 of the Amended Application. Counsel for the Applicant submits that it relates to a failure by the Tribunal to comply with the statutory requirements in s.366C of the Act, set out as follows:
“366 Interpreters
(1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person.
(2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.
(3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection(1).”
Section 366C of the Act requires the Tribunal to comply with a request made by an Applicant for an interpreter at a hearing, unless the Tribunal considers that the person is sufficiently proficient in English (s.366C(2)). Section 366C(3) of the Act requires the Tribunal to appoint an interpreter for purposes of communication between the Tribunal and the person even though no request may have been made by an applicant or where a tribunal considers that an applicant appearing before it is not sufficiently proficient in English.
It is common ground that a breach of s.366C of the Act would be a jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162).
It is common ground that the Applicant requested a Punjabi interpreter in writing. That request was received by the Tribunal on 21 April 2005.
In its decision, the Tribunal stated that “An accredited interpreter assisted the review applicant throughout the hearing.” That statement is plainly incorrect. However, quite properly, it is not the Tribunal’s incorrect statement upon which the Applicant relies. The Tribunal’s incorrect statement has no further relevance to the application before this Court.
Both parties filed a transcript of the hearing before the Tribunal, although both parties agreed to rely on the transcript annexed to the affidavit of Judith Pownall affirmed 14 June 2006 and filed by the First Respondent on 14 June 2006.
The Applicant read two affidavits in support of her submissions, one filed on 31 May 2006 and the other filed on 9 June 2006. In neither affidavit does the Applicant state the she had any difficulty in understanding or communicating with the Tribunal.
The First Respondent contends that, when one has regard to the transcript as a whole, it is apparent that there was no difficulty by either the Applicant or the Tribunal in communicating with each other. At no stage of the hearing was an interpreter sought by the Applicant. The First Respondent submits that there is no obligation on the Tribunal to record reasons as to why it considered that an Applicant may be sufficiently proficient in English. The First Respondent submits that such an inference can be drawn, and, indeed, should, in this case, be drawn from the evidence before the Court, particularly the transcript.
The First Respondent referred to the following exchange between the Tribunal and the Applicant at the commencement of the hearing:
“Tribunal:Thank you. Mrs Pannu, I just want to make sure, are you able to understand all that I am saying?
Mrs Pannu:If I am having any problem can I ask you again, is that okay?
Tribunal: Absolutely, and I will speak very slowly and I will try and use very simple language, very simple words, okay?
Mrs Pannu: Thank you.”
Counsel for the First Respondent took the Court randomly through the transcript in support of his submission that the overwhelming inference from the transcript is that neither the Tribunal nor the Applicant had any difficulty in understanding or communicating with each other.
The First Respondent referred particularly to exchanges between the Tribunal and the Applicant that involve the Tribunal putting its concerns about the Applicant’s evidence to her, for example:
“Tribunal:Yes, but tell me how someone can put words into your mouth when you say “I’m working here five to six days and I got paid cash and they”-
Mrs Pannu:They said “do you work there” and I said yes, but I said yes, but I said I don’t – I’m telling you I didn’t work there, I was volunteering for them for. Like. Two or three hours (indistinct) day.
Tribunal:That’s different again from what you said to me before, you’re telling me today that your volunteering two to three hours a day?
Mrs Pannu:Two or three hours a day for two weeks, two day in a week.
Tribunal:Why did you tell the Department that you and your husband were looking at purchasing a business like this?
Mrs Pannu:   Because that was our future plan for my husband.
Tribunal:Okay, so that’s one version you said to the Department, then you told them that you were working ~~and~~ when they call you and they pay you cash, now you’re telling me that you weren’t working but you did work two or three hours a day showing them how to prepare food?
Mrs Pannu:I was volunteering, I was volunteering for them, I did not work for them.
Tribunal:You see the definition of work in the Migration Regulation has nothing to do with whether it’s voluntary or otherwise.
Mrs Pannu:   I wasn’t told…
Tribunal:Work is defined as something where it would attract a wage, a pay, whether you get a pay or not is irrelevant but the fact that you are in a position where someone could get paid, even if it was showing how to prepare their food, that’s what work is defined as.
Mrs Pannu:But I wasn’t working for them. I have been volunteering -…
Tribunal:But you gave them your false name before you came to know about these things? Let me put this scenario to you. I – you’re telling me that when the Department officers came in you were confused and you were scared.
Mrs Pannu:They didn’t let me go to the toilet, I wanted to go to the toilet, I said, can I please go to the toilet, they didn’t let me go to the toilet.
Tribunal:      Perhaps they thought you might leave?
Mrs Pannu:   No. I can’t leave like this.
Tribunal:      Why was that?
Mrs Pannu:I’m –I know I was – like I don’t know, I was so scared and confused, I can’t even answer you now about that.    “
Counsel for the Applicant was able to identify only one exchange in the transcript which he contended was capable of revealing a misunderstanding between the Tribunal and the Applicant. That exchange is set out as follows:
“Tribunal:When you were working at the Tannery, what was    your wages there?
Mrs Pannu:   My wages at the - ?
Tribunal:      At the Tannery?
Mrs Pannu:Yes 30,000 Australian dollars per year, but, like maybe at this time – you can answer, Mr Khan, he’s better answerable to you.
Tribunal:That’s okay, I just wanted to a have rough idea what you get paid, that was all. So that’s 30,000?
Mrs Pannu:Hm, yes
Tribunal:And your husband’s income when he was working as a security guard, how much did your husband roughly get when he was working as a security guard?
Mrs Pannu:$600 to $700 a week.
Tribunal:Six to 7 hundred a week, okay. Was that money paid into your bank account from both you and your husband?
Mrs Pannu:Sorry
Tribunal:Was your pay put into your bank – paid into your bank account by your employer or did they pay you in cash?
Mrs Pannu:My husband’s went to the bank
Tribunal:And yours?
Mrs Pannu: And like as I said, I was waiting for work to become – many more people supposed to be coming for Union Tannery so that’s what I told you when I was (indistinct) coming answer, that question.”
In relation to the Applicant’s contention that the transcript extract above reveals a misunderstanding, I have regard to the fact that the Tribunal found the Applicant not to be a credible witness.
Plainly s.366C of the Act is part of the statutory scheme of the provision of procedural fairness to an applicant. The intention is to ensure that a person appearing before a Tribunal is not disadvantaged by reason of insufficient proficiency in English. Not only does the Applicant not claim any disadvantage by the absence of an interpreter, there was no complaint by the Applicant during the hearing and no meaningful error of understanding on the part of either the Tribunal or the Applicant was identified by the Applicant in the transcript.
I find that a perusal of the transcript of the hearing, being exhibit JP1 to the affidavit of Judith Pownall affirmed on 14 June 2006, does not disclose any, or any meaningful, difficulty on the part of the Applicant in understanding the Tribunal’s questions or an inability, or meaningful inability, to fail to respond appropriately.
I am satisfied that the Tribunal, by its conduct in its exchange with the Applicant at the commencement of the hearing and the ease of its communication with the Applicant during the hearing, make it clear that the Tribunal considered that the Applicant was sufficiently proficient in English such that an interpreter was not required “for the purposes of communication between the Tribunal and the person.” There is no evidence to suggest that an interpreter was required for that purpose. In those circumstances the Tribunal was entitled to proceed with the hearing in the absence of an interpreter, even though one was originally requested by the Applicant.
There was no breach by the Tribunal of its obligations pursuant to s.366C of the Act. No other breach is relied upon by the Applicant in support of this ground and none is apparent from the decision of the Tribunal.
Accordingly, ground (a) is not made out.

Ground (b) – “That the Tribunal did not act according to the natural justice”

Ground (b) was ground 7 of the Amended Application. No further particulars are provided in respect of this ground. I understand the relevant particular to be the failure of the Tribunal to provide the Applicant with an interpreter at the hearing.
However, s.357A of the Act provides that the statutory regime under div.5 of pt.5 of the Act is an exhaustive statement of the natural justice hearing rules. Section 360 of the Act requires the Tribunal to invite the Applicant to appear before the Tribunal to give evidence and present arguments. That occurred. There was no breach of s.366C of the Act. Moreover, there is no manner in which the Tribunal hearing was conducted that is in breach of div.5 of pt. 5 of the Act.
Accordingly, ground (b) is not made out.

Ground (c) – “That the mere location of the applicant at the place of employment is not a ground for cancellation of Visa under Section 116 of the Migration Act”

This ground was ground 5 in the Amended Application. It is a complaint by the Applicant about the Tribunal’s findings of fact in relation to whether or not the Applicant was working in breach of condition 8107 of her visa. Counsel for the Applicant contended that the Tribunal failed to have regard to the Applicant’s evidence of the reason why she was on particular premises. That is plainly a question of fact.
The Tribunal considered the Applicant’s claim that she worked voluntarily at Nando’s and therefore was not in breach of condition 8107 of her visa. Relevantly, condition 8107(a)(iii) provided that the Applicant must not engage in “work” for another person or on her own account while undertaking the employment in relation to which the visa was granted. Condition 8107 is set out as follows:
“8107 The holder must not:
(a) if the visa was granted to enable the holder to be employed in Australia:
(i) cease to be employed by the employer in relation to which the visa was granted; or
(ii) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(iii) engage in work for another person or on the holder’s own account while undertaking the employment in relation to which the visa was granted; or
(b) in any other case:
(i) cease to undertake the activity in relation to which the visa was granted; or
(ii) engage in an activity inconsistent with the activity in relation to which the visa was granted; or
(iii) engage in work for another person or on the holder’s own account inconsistent with the activity in relation to which the visa was granted.”
After considering the evidence before it and the relevant law, the Tribunal found that the Applicant’s activity at Nando’s was one that would normally attract remuneration in Australia and therefore was “work” for the purposes of condition 8107. Moreover, the Tribunal did not consider the Applicant to be a credible witness. Those are findings of fact that were open to the Tribunal on the evidence and material it. This Court has no jurisdiction to review such findings of fact.
Accordingly, ground (c) is not made out.

Conclusion

There being no jurisdictional error, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
Accordingly, the application before this Court is dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 21 June 2006