Prasad, Kesho v Minister for Immigration and Multicultural Affairs

[1998] FCA 266

FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Immigration Review Tribunal (“IRT”) decision - failure to comply with requirements of Migration Act - whether applicant is a person who complied substantially with the “no work condition” to which his visitor entry permit was subject - whether applicant engaged in an activity that normally attracts remuneration where no evidence to justify finding

Migration Act 1958 (Cth), ss 353(1); 368(1)(b),(c),(d); 476(1)(a),(e),(g); 476(2); 476(4)(a),(b)

Myeong Il Kim v Witton & Anor (1995) 59 FCR 258, considered

KESHO PRASAD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 186 of 1997

O’CONNOR  J
MELBOURNE
25 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 186  of   1997

BETWEEN:	KESHO PRASAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		O'CONNOR J
DATE OF ORDER:		25 MARCH 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application for the determination of whether the applicant was a person who complied substantially with the “no work condition” to which his visitor entry permit was subject and was entitled to a grant of a temporary resident class 42a (religious worker) entry permit be referred to the Immigration Review Tribunal to be further considered according to law.

1. The respondent pay the 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
VICTORIA DISTRICT REGISTRY	VG 186 of 1997

BETWEEN:	KESHO PRASAD APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'CONNOR J
DATE:	25 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application to review the decision of the Immigration Review Tribunal (“IRT”) made on 4 April 1997 refusing the grant of a Class 428 (Religious Worker) entry permit (after entry) to the applicant.

The grounds of the application are:

• that procedures that were required by the Migration Act 1958 (“the Migration Act”) or the regulations to be observed in connection with the making of the decision were not observed by the IRT namely:

(a)that the IRT failed to prepare a statement of its reasons for the decision which complied with the requirements of s 368(1)(b), (c) and (d) of the Migration Act; and

(b)contrary to s 353(1) of the Migration Act, the IRT did not provide a mechanism for review that was fair or just.

• that there was no evidence or other material to justify the making of the decision. The IRT was required to reach that decision only if a particular fact was established and there was no evidence or other material (including facts of which the IRT was entitled to take notice) from which the IRT could reasonably be satisfied that the matter was established. The IRT based its decision on the existence of a particular fact or facts and that fact or those facts did not exist within ss 476(4)(a) and (b) of the Migration Act.

• that the decision involved an error of law being an incorrect interpretation and/or application of the law (s 476(1)(e).

The applicant seeks and order that the decision of the IRT made on 4 April 1997 be quashed and a declaration that on 4 April 1997 the applicant was a person who complied substantially with the “no work” condition to which is visitor entry permit was subject and was entitled to the grant of a Temporary Resident Class 428 (Religious Worker) entry permit..  Alternatively the applicant seeks an order that the application for the determination of his status be referred to the IRT to be further considered according to law on the issue of whether the applicant complied with the “no work” condition to which his visitor entry permit was subject.

Legislative Context
The relevant provisions of the Migration Act in respect of this application are as follows:

“Tribunal’s way of operating

353.  (1)  The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
  (2)  The Tribunal, in reviewing a decision:
...
(b)      shall act according to substantial justice and the merits of the case.

...

Tribunal to record its decisions etc. and to notify parties

368.  (1)  Where the Tribunal makes its decision on a review, the Tribunal must, subject to paragraph 375A(2)(b), prepare a written statement that:
...
(b)      sets out the reasons for the decision;
(c)       sets out the findings on any material questions of fact; and
...

Application for review

476.  (1)  Subject to subsection (2) application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures which were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.

...

(g)that there was no evidence or other material to justify the making of the decision.

(2)  The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

...

(4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

The criteria for a Class 428 (Religious Worker) entry permit (after entry) are set out in Part 428 of Schedule 2 of the Migration Regulations (“the Migration Regulations”).  Clause 428.731(b) requires the applicant to satisfy the criteria for the grant before entry to a primary person of a Class 428 visa.  The criteria are set out as follows:

“428.321The applicant is sponsored by a religious organisation in Australia to undertake work in Australia that directly serves the religious objectives of the organisation.

428.322The applicant provides a written undertaking by the religious organisation:

(a)to meet all the applicant’s travel expenses to a place in a foreign country on:

(i)the expiry of the sponsorship; or

(ii)the expiry of the visa (if granted as an entry visa) or of the resultant entry permit (if the visa is granted as a travel-only visa); whichever is the earlier; and

(b)not to seek to recover from the applicant any expenditure by the religious organisation in relation to the applicant’s travel to or from Australia, or in relation to financial support of the applicant in Australia.

428.323If the application relates to a proposed stay in Australia for more than 6 months, the applicant is able:

(a)to ask and answer simple questions in English; and

(b)to write simple statements in English about everyday matters; and

(c)to complete simple forms in English.

428.33Criteria to be satisfied at time of decision (visa-before entry)

428.331The applicant continues to satisfy the criteria specified in clauses 428.321 to 428.324.

428.332The applicant satisfies the public interest criteria 4001 to 4005 and 4010.

428.333If the applicant has previously been in Australia, the applicant satisfies special re-entry criteria 5001, 5003, 5005, 5007, 5009 and 5010.

428.334If so requested by the Minister, an assurance of support in relation to the applicant has been given, and has been accepted by the Minister.

428.335The sponsorship of the applicant under clause 428.321 has been approved by the Minister, and the sponsorship fee specified in regulation 7.27 has been paid.”

Factual Background
The applicant arrived in Australia, together with his spouse, on a visitor entry permit issued on 7 January 1994 allowing a stay of two months upon entry.  The applicant and his spouse entered Australia on 8 February 1994.  This entry permit indicated three conditions:  no residence, no formal study and no work.

The applicant was a citizen of Fiji and gave evidence that he had worked for many years in Fiji as a Hindu priest.  Within a few days of his arrival in Australia, the applicant made contact with the Shri Sanatan Dharam Society of Victoria (“the Society”) and commenced working full time as a priest with the Fijian Hindu community and continues to do so.  The applicant receives donations from members of the Fijian Hindu community for the work he does.  This money was paid to the Society by the applicant who in turn is provided with a sum of money for his living costs.

The Class 428 application was lodged on 28 March 1994, together with a sponsorship form completed by the Society, with the then Department of Immigration and Ethnic Affairs and was rejected on 8 November 1994.  An application for review of that decision was made to the Migration Internal Review Office on 8 December 1994 and a review officer affirmed the original decision on 7 December 1995.  An application was made to the IRT on 14 December 1995.  On 4 April 1997 , the application was rejected by the IRT who found that the applicant had not complied substantially with the ‘no work’ condition to which his visitor entry permit was subject.

IRT’s Decision
The IRT outlined the background and relevant statutory context in relation to this application then made the following findings:

That at the date of the Class 428 application, 28 March 1994, the applicant was the holder of a valid visitor entry permit.

The IRT noted that the applicant’s entry permit was issued with the conditions of no residence, no formal study and no work.  After discussing the various authorities on the meaning of the term ‘work’ the IRT stated that:

“Considerations such as the length of time an activity is pursued, the nature and 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 remain relevant to the characterisation of a particular activity in a particular context”.

The decision-maker then concluded:

“It appears that soon after his arrival in Australia, the Principal commenced work as a priest.  He began to receive donations for this work which were in turn provided to the Society.  The Principal has been paid regularly a sum of $150 by the Society.  The Tribunal finds that that the Principal has been engaged in an activity that in Australia normally attracts remuneration.  In other words, he has been engaged in ‘work’’ in Australia as a priest since a few days after his arrival in Australia on 8 February 1994.”

In this case the applicant submits that there has been an error of law because the decision maker has found, as a fact, that the applicant has been engaged in an activity that in Australia normally attracts remuneration where there is no evidence to justify the finding.  In the decision, the law in relation to the question of the definition of work under the regulations is set out in some detail and no quarrel is made by the applicant with the way the law is expressed.

Relevantly, in Myeong IlKim v Witton and Anor (1995) 59 FCR 258, Sackville J considered all these authorities in relation to the definition of work and then at page 268 said:

“However, as French J pointed out in Braun, it is not enough to constitute “work” that a person engages in an activity.  It must be an activity that “in Australia, normally attracts remuneration”.  The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason.  The test to be applied is an objective one, namely, whether the “activity” performed by the individual normally attracts remuneration in Australia.”

Of course, in the given case, it is necessary to identify the “activity” performed by the individual in order to determine whether it is one that normally attracts remuneration in Australia.”

In this case the decision-maker dealt in some detail with the actual activity that was being undertaken by the applicant and made findings in relation to this activity.  The decision-maker also found that the activity of the applicant in Australia normally attracts a remuneration.  There is however, no basis referred to by the decision-maker as to why that finding is made.

The respondent submitted that this omission amounts to no more than “looseness of language” or “unhappy phrasing of the reasons of an administrative decision maker” and the Court should not be concerned with it.  By reading the decision as a whole and in particular, the paragraph preceding the finding, the Court could draw he said an inference that the decision maker had considered this issue.

I do not consider that this inference is available in this case.  The decision maker is required to consider on what basis this applicant has been engaged in activity that in Australia normally attracts remuneration.  He is also required to refer to it in the reasons for decision.  It would have been open to the decision maker to make a finding about the normal practice of priests.  In this case the applicant could have been asked about it, or other enquiries made to form the basis of the finding.  However, this was not done and an error of law has been made.

Having come to this decision it is not necessary for me to consider the respondent’s submission that the failure to prepare a statement of its reasons for decision which complied with the requirements of s 368(1)(d) and (c) of the Migration Act is not reviewable pursuant to s 476(1)(a) not being procedures which are observed in connection with the making of a decision, but only in connection with the reasons for decision (my emphasis).

The respondent made a final submission that there was no utility in sending the matter back to the Tribunal even though an error of law had been found. I was referred to a number of cases dealing with the effect of s 481 of the Migration Act and the right of the Court not to remit if the same result ultimately would occur or would be found by the Tribunal even though there had been an error.

This is not a case where it would be possible to come to the view that the same result would occur and be found by the Tribunal even though there had been an error.

The word “normally” in the definition has to be interpreted and there has to be evidence before the decision-maker as to that matter.  The applicant submitted that there was material about this matter in the court book which was before the decision-maker and not referred to in the decision.

Further, the Tribunal could seek further evidence about the matter at the rehearing.  I agree with those submissions.

I make an order that the application for the determination of whether the applicant was a person who complied substantially with the “no work condition” to which his visitor entry permit was subject and was entitled to a grant of a temporary resident class 42A (religious worker) entry permit be referred to the IRT to be further considered according to law.

I order the respondent to pay the costs of the application.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Connor

Associate:

Dated:             25 March 1998

Counsel for the Applicant:	I Gray
Solicitor for the Applicant:	Dean & Co
Counsel for the Respondent:	R Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 March 1998
Date of Judgment:	25 March 1998