Rahhal v Minister for Immigration
[2008] FMCA 933
•17 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAHHAL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 933 |
| MIGRATION – Visa – Business visa – Temporary Business Entry (Class UC) visa – Subclass 457 – cancellation of visa – application for review of decision of Migration Review Tribunal to affirm decision that Temporary Business Entry (Class UC) visa be cancelled – breach of condition 8107 – work – whether applicant was engaged in work – condition 8107(a)(i) – condition 8107(a)(iii) – company director – condition 8107(a)(ii) – remuneration – discretion – exercise of discretion – fraud – allegations of fraud – whether Tribunal fell into error when it made no finding about allegations of fraud made by the applicant – whether Tribunal failed to consider relevant matters – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.101, 116, 119, 235, 348, 349, 474 Workers Compensation and Injury Management Act 1981 (WA), s.18 Migration Regulations 1994 (Cth), reg.1.03 |
| William Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552 referred to Ahmed v Minister for Immigration [2004] FMCA 127 referred to Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 referred to Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240 followed Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489 cited Tikoisuiva v Minister for Immigration [2001] FCA 1347 cited Xu v Minister for Immigration [2007] FMCA 285 cited Chalmers v Commonwealth of Australia (1946) 73 CLR 19 cited Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50 cited Kim v Witton (1995) 59 FCR 258 cited Lobo v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 132 FCR 93 cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 cited Baidakova v Minister for Immigration and Multicultural Affairs [1998] FCA 1436 cited Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152 cited Sean Investments v Mackellar (1981) 38 ALR 363 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 111 cited Attorney-General (NSW) v Quin (1990) 170 CLR 1 followed Enfield City v Development Assessment Commission (2000) 199 CLR 135 cited VXDC v Minister for Minister for Immigration v Multicultural and Indigenous Affairs (2005) 145 FCR 562 cited SZLHM v Minister for Immigration & Citizenship [2008] FCA 754 followed Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 followed |
| Applicant: | ABDUL SALAM AHMAD RAHHAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 196 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 March 2008 |
| Date of Last Submission: | 27 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ellis |
| Solicitors for the Applicant: | SanLing Chan |
| Counsel for the Respondents: | Mr Tsaknis |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PEG 196 of 2007
| ABDUL SALAM AHMAD RAHHAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant, a national of Lebanon, applies for judicial review of a decision of the Migration Review Tribunal signed on 31st August 2007 and handed down on 11th September 2007. The Tribunal affirmed the decision of a delegate of the Minister that the applicant’s Temporary Business Entry (Class UC) visa should be cancelled for a breach of condition 8107.
The applicant seeks relief for the following reasons (taken from the Outline of the Applicant’s Submissions):
(1)The Tribunal erred in concluding that the applicant had breached condition 8107(a)(iii) of his visa by participating in a workplace rehabilitation program at a company called Universal Stone Pty Ltd. The Tribunal failed to consider the applicant’s particular circumstances in that his activities were part of a workplace rehabilitation program while he was on workers compensation and he was not in receipt of “remuneration”. Accordingly, his activities were not “work” within the meaning of that expression in the Migration Regulations 1994.
(2)The Tribunal erred in concluding that the applicant had breached condition 8107(a)(ii) of his visa by holding office as a director of Universal Stone between 3rd January and 6th July 2006; and
(3)The Tribunal failed to exercise its discretion under s 116 of the Migration Act properly, in that it failed to consider whether the breaches of the condition were the consequence of and in furtherance of the fraudulent conduct of the applicant’s sponsoring employer towards the applicant.
The applicant seeks:
(a)writs of certiorari and mandamus;
(b)a declaration that the purported decision of the Tribunal is wholly invalid; and
(c)costs.
Background
The applicant first entered Australia on 13th January 2000. He left Australia on 1st June 2000 and returned on 10th December 2000 on a Temporary Business Entry (Class UC) visa, subclass 457. He was granted another Temporary Business Entry (Class UC) visa, subclass 457, on 31st January 2005. This visa was due to expire on 31st January 2008, but it was cancelled on 16th March 2007.
The visa had been granted on the basis that he would be employed by a business sponsor, Aurora Stone (WA) Pty Ltd as a stonemason.
The applicant was in receipt of workers compensation between
22nd August 2005and August 2006. During that time the applicant was engaged in a workplace rehabilitation program at a company called Universal Stone (WA) Pty Ltd.
On 21st March 2006 Aurora Stone Pty Ltd wrote to the Department of Immigration and Citizenship, over the signature of one Paul Shehade, a director, seeking to terminate the company’s sponsorship of the applicant. The letter enclosed copies of various court documents in Arabic, translated into English, showing that the applicant had been found guilty in absentia of an offence involving a cheque which had not been met on presentation and had been fined and sentenced to a period of imprisonment[1].
[1] Court Book at 23-24
Apart from seeking to terminate the company’s sponsorship of the applicant, the letter from Aurora Stone made this allegation:
Mr Rahhal is currently under a worker’s compensation claim which we believe to be fraudulent. Whilst being paid under this claim he is operating his own business in competition with ours. He has also made application under the Industrial Commission for unpaid overtime which we contend is also fraudulent[2].
[2] Court Book 31
A departmental file note dated 23rd March 2006 shows that the documents from Lebanon had been given to one Ken Graffin, presumably a departmental officer “for investigation and appropriate action”[3].
[3] Court Book 32
The Department’s inquiries showed that the company Universal Stone (WA) Pty Ltd was first registered on 3rd January 2006. The applicant and one Hiyam Abou Merhi were shown as directors and shareholders. The applicant ceased to be a director and shareholder on 6th July 2006[4].
[4] Court Book10-12, 478
On 2nd May 2006, Mr Shehade of Aurora Stone forwarded to the Department a copy of a medico-legal report dated 18th April 2006 by Dr J.M. Hill, referring to an examination of the applicant on 30th March 2006. Mr Shehade or someone on his behalf had placed lines on the copy of the report to highlight this paragraph:
He told me that he had not returned to work in any capacity, although next month there is a query that he will start 2 hours a day in the office. He specifically denied starting up a business with a friend, although he says he has been offered shares. He denies working at Universal Stone[5].
[5] Court Book 43
The Department of Immigration and Citizenship wrote to the applicant’s solicitor on 7th August 2006, indicating that there may be grounds for cancellation of the applicant’s visa under s 116(1)(b) of the Act. The letter set out a number of pieces of information, particularly:
i)that on 24th July 2006 departmental officers visited the premises of Universal Stone where they met the applicant, who said he had been working there as part of a rehabilitation program for two months;
ii)that according to ASIC records the applicant owned one of two shares in Universal Stone (WA) Pty Ltd;
iii)that the applicant ceased to be a director and shareholder of Universal Stone (WA) Pty Ltd from 6th July 2006;
iv)that according to ASIC records the applicant was one of two persons carrying on the business name Universal Stone WA which had a start date of 26 August 2005;
v)
that there was evidence of the applicant providing quotes for stonework on behalf of Universal Stone on 3rd April and
10th May 2006;
vi)that Dr Hill’s report of 18 April 2006 contained the report of the applicant’s denial of having returned to work in any capacity and his specific denial of working at Universal Stone.
The letter went on to state:
Based on the documents and evidence of Mr Rahhal’s work for Universal Stone and documents lodged with ASIC, it is possible to conclude that the information provided by Mr Rahhal to the medical specialist on that day contained false information[6].
[6] Court Book 114
The letter enclosed copies of the Arabic documents and English translations relating to the alleged court proceedings in Lebanon.
The letter went on to say:
The actions of Mr Rahhal’s in working for Universal Stone (WA) Pty Ltd including company director appear to be a contravention of the visa conditions and section 235 of the Migration Act 1958. Also noting Mr Rahhal’s legal responsibilities and duties as a company director according to company law[7].
[7] Court Book 116
The Department’s letter stated that there appeared to be a case to consider visa cancellation under s 116(1)(b) because the visa holder had not complied with a condition of the visa. The letter asked for the applicant’s comments and reasons as to why the visa should not be cancelled. The comments were to be in writing and to be provided by 23rd August 2006.
The applicant’s solicitors wrote back on 22nd August 2006. The letter set out that the applicant had been advised by the rehabilitation consultant of ORS Group that he should start being involved in rehabilitative work. The letter stated that the proprietor of Aurora Stone had a personal vendetta against the applicant and, in the opinion of the applicant’s general medical practitioner, a return to light work at Aurora Stone would aggravate his injuries.
The applicant’s solicitors stated that the applicant had been advised by the workers compensation insurer to start rehabilitation at Universal Stone and he commenced in about April 2006. The applicant was not paid wages but weekly payments as part of his workers compensation entitlement.
The applicant’s solicitors stated that the applicant, whose first language is not English, had misunderstood the questions asked of him by
Dr Hill.
The solicitors also referred to the Arabic documents from Lebanon, denying that the applicant could have drawn the cheque concerned and claiming that the applicant’s police clearance submitted to the Department was lawfully obtained.
The applicant’s solicitors submitted that the applicant’s visa should not be cancelled as he had not breached condition 8107 by ceasing to be employed by his employer. He had not ceased to be employed by Aurora Stone as he was still being paid weekly payments. In addition, the applicant was not working at Universal Stone as he was complying with a directive to undertake suitable duties within medical guidelines and under WA WorkCover legislation the applicant remained an employee of Aurora Stone.
The applicant’s solicitors also made submissions about whether the department should exercise its discretion to cancel the applicant’s visa.
The applicant’s solicitors provided a statement by one Eli Queern, a rehabilitation consultant, who stated that he had been managing the applicant’s file since 26 October 2005. He stated that his employer would arrange to find suitable duties for the applicant, it having been agreed that a return to work at Aurora would be inappropriate due to the heavy lifting involved. Mr Queern stated that a placement was arranged at Universal Stone and the applicant commenced “modified duties and restricted hours with Universal Stone on 10 April 2006”[8].
[8] Court Book 133
The applicant’s solicitors also provided a statement by the applicant in which he claimed, inter alia, he had not been provided with an interpreter at his consultation with Dr Hill. He said that he did not fully understand Dr Hill’s questions because his command of English was “not excellent”[9].
[9] Court Book 135
The applicant’s solicitors provided other documents to the Department.
By means of a letter dated 23rd October 2006, Aurora Stone advised the Department that the applicant ceased to be employed by the company on 7th September 2006.
The Department sent a second Notice to Consider Cancellation of the applicant’s visa to his solicitor on 13th December 2006. The solicitor replied on 20th December 2006, stating that the applicant had not resigned from his employment and was not in breach of condition 8107(a)(i).
The applicant’s visa was cancelled on 16th March 2007.
The applicant applied for a fresh Temporary Business (Long Stay) subclass 457 visa on 21st March 2006. That application was refused on 22nd August 2006. The applicant applied to the Migration Review Tribunal for review of the decision not to grant him a visa on
31st August 2006.
On 23rd March 2007 the applicant applied to the Migration Review Tribunal for review of the decision to cancel his visa.
Application to the Migration Review Tribunal
At the request of the applicant’s solicitor, the two applications for review were dealt with together. The Tribunal invited the applicant and members of his family to attend a hearing by video conference on
22nd June 2007.
The applicant’s solicitor made a written submission to the Tribunal on 21st June 2007.
The applicant gave evidence to the Tribunal on 22nd June 2007, as did his wife and Mr Tony Abou Mehri.
After the hearing, the applicant’s solicitor wrote to the Tribunal on
3rd and 10th August 2007, providing further medical evidence.
The Tribunal Decision
The Tribunal handed down its decision on 11th September 2007. A copy of the Tribunal Decision Record appears at pages 592 to 613 of the Court Book.
The Tribunal’s findings are set out in the Court Book on pages 602 through to 613. The Tribunal set out the requirements of s 119 of the Migration Act in respect of notices of proposed cancellation and referred to the decisions of the Federal Court in William Tien v Minister for Immigration and Multicultural Affairs[10], the Federal Magistrates Court in Ahmed v Minister for Immigration[11] and the Full Court of the Federal Court in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs[12].
[10] [1998] FCA 1552
[11] [2004] FMCA 127
[12] [2004] FCAFC 248
The Tribunal found that the Notice of Intention to Consider Cancellation of the visa issued on 13th December 2006 (the second notice) was “sufficient to inform fairly the review applicant of the basis of the cancellation”[13].
[13] Court Book at 604
The Tribunal found that the applicant’s visa was cancelled under subsection 116(1)(b) of the Act for breach of condition 8107 and set out the terms of condition 8107 that applied at the time of the grant of the visa, referring to the decision of the Federal Court in Pradhan v Minister for Immigration and Multicultural Affairs[14].
[14] [1999} FCA 1240
The Tribunal noted that the applicant’s subclass 457 visa was granted to enable him to be employed as a stonemason by Aurora Stone. He claimed to have suffered an injury at work on 22nd August 2005 and was on workers compensation and an associated work trial rehabilitation program until August 2006, when his workers compensation case was settled.
The Tribunal noted the applicant’s claim made at the hearing that he did not go back to work with Aurora Stone after his case was settled because they had “kicked him out”[15].
[15] Court Book 606
The Tribunal found that the applicant had not worked or been employed in any sense by Aurora Stone since August 2006 and that he had not been employed at all in Australia between September 2006 and March 2007. The Tribunal found:
Even if the review applicant has not formally resigned his position it is clear that he has ceased ‘to be employed by the employer in relation to which the visa was granted’.
The Tribunal finds that the breach of condition 8107(a)(i) is made out in respect of the period in which the review applicant ceased his work trial rehabilitation program, that is, after August 2006, until his visa was cancelled in March 2007[16].
[16] Court Book at 606
The Tribunal then considered what it described as the Workers Compensation Issue. It noted that between 22nd August 2005 and August 2006 the applicant was on workers compensation as a result of injuries allegedly suffered whilst employed by Aurora Stone. He was not engaged in any activity at Aurora Stone in that period but from
10th April 2006to August 2006 he was engaged at Universal Stone.
The Tribunal referred to the definition of work in regulation 1.03:
Work means an activity that, in Australia, normally attracts remuneration;
The Tribunal went on to find:
Clearly, the activities undertaken by the visa applicant as a Stonemason in his work rehabilitation program at Universal Stone (WA) Pty Ltd, and the duties he described as undertaking there, would normally attract remuneration[17].
[17] Court Book 607
The Tribunal set out three reasons why it considered that the work was not being undertaken for the benefit of the putative employer, Aurora Stone:
(a)The applicant’s Rehabilitation Consultant and general medical practitioner considered it was not feasible for him to work at Aurora Stone due to the poor relationship between the applicant and the sponsor.
(b)The applicant was employed at Universal Stone because the Rehabilitation Consultant believed that there was no feasible alternative even though the applicant had a financial interest in Universal Stone and had suggested that he should work there.
(c)Universal Stone was a direct competitor of Aurora Stone.
The Tribunal found that the applicant’s activities at Universal Stone were “work”, saying:
On this basis, although the Tribunal acknowledges that the payments (wages) made to the review applicant were made pursuant to workers compensation arrangements, the Tribunal finds that the nature of the activities undertaken by the review applicant were as an employee of Universal Stone (WA) Pty Ltd. Whether he was also ‘working’ as a company director is another matter considered later[18]
[18] Court Book 607
The Tribunal considered the view put by the applicant, that the payments made to him pursuant to the workers compensation arrangements would have been paid whether the applicant undertook those activities or not; that the payments were not “wages”, that the activities at Universal Stone were not “work” and the applicant was still employed by the sponsor, Aurora Stone.
The Tribunal was not convinced by that argument and found that the applicant’s activities constituted “work” whether or not he was actually paid for them.
The Tribunal acknowledged that Aurora Stone remained the applicant’s putative or vicarious employer but considered that since the applicant did not work for Aurora Stone during that period, found that the applicant was not working for the sponsor in the relevant period of workers compensation:
The Tribunal finds that the review applicant was engaged ‘in work for another person…while undertaking the employment in relation to which the visa was granted’. The Tribunal finds that the breach of condition 8107(a)(iii) is made out in respect of the period of the work trial program, from 10 April 2006 to August 2006[19].
[19] Court Book 608
The Tribunal then considered the applicant’s position as a company director under the heading Director of Universal Stone (WA) Pty Ltd. The Tribunal noted that the applicant became a director of the company when it was first incorporated on 3rd January 2006 and remained a director until 6th July 2006.
The Tribunal noted that for part of that time the applicant was on workers compensation from his sponsoring employer and was undertaking a work trial program. The Tribunal went on to say:
However, the work trial program was to do with rehabilitation of the review applicant to enable him to work at his previous occupation as a Stonemason or allied occupation, not as a company director.[20]
[20] Court Book 608
The Tribunal also referred to the fact that the holder of a subclass 457 visa may not act as a director of a company. It then considered whether the applicant’s activities as a director constituted “work’ within the meaning of regulation 1.03. The Tribunal stated:
The Tribunal does not accept that the directors of Universal Stone (WA)Pty Ltd undertook their duties, which would be considered work in the normal sense of the word, with no expectation of remuneration. The Tribunal finds that the activity of a company director is ‘an activity that, in Australia, normally attracts remuneration and is therefore ‘work’ within the meaning of regulation 1.03.[21]
[21] Court Book 608-609
The Tribunal found that a breach of condition 8107(a)(ii) was made out in respect of the period in which the applicant was a director of Universal Stone (WA) Pty Ltd, from 3rd January 2006 to 6th July 2006.
The Tribunal then considered whether there had been a breach of s 101 of the Act. That section allows for cancellation of visas based on incorrect information. The Tribunal held that s 101 does not apply to actions of the review applicant in failing to inform the Department of a change in material circumstances and therefore found that s 101 did not apply to the applicant in failing to inform the Department of a change in material circumstances.
The Tribunal next turned its attention to whether it should exercise its discretion to cancel the applicant’s visa. The Tribunal considered matters under the following headings:
·The purpose of the visa holder’s travel to and stay in Australia
·The extent of non-compliance with any conditions
·The degree of hardship which may be caused to the visa holder and any family members
·The circumstances in which the ground for cancellation arose
·Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations
·The person’s behaviour in relation to the Department, now and on previous occasions
·Other Matters
The Tribunal noted that the applicant was found to have breached conditions 8107(a)(i) between August 2006 and March 2007, 8107(a)(ii) between 3rd January and 6th July 2006, and 8107(a)(iii) between 10th April and August 2006.
The Tribunal then considered the degree of hardship which may be caused to the applicant and members of his family. In particular, the Tribunal noted the applicant’s claim that he was the victim of a fraud perpetrated by the owners of Aurora Stone, a claim corroborated by the applicant’s witnesses at the hearing. The Tribunal stated:
The Tribunal was told that ASIC and the police had been informed of the alleged fraud, and that taking the matter to court would be expected to take some 4 or 5 years, cost about $100,000 and have little chance of success. The Tribunal makes no finding about the alleged fraud but notes that in the absence of any current or proposed action by the claimed victim(s) there appears to be no useful purpose served buy treating this claim as a reason against cancelling the review applicant’s visa[22].
[22] Court Book 610
The Tribunal also found that:
(a)The applicant’s claim that his family would suffer disruption and hardship if they had to return to Lebanon was not supported by the fact that his two daughters had already returned there.
(b)The applicant and his wife had been in Australia as the holders of temporary residence visas and “There is no necessary expectation that the holder of temporary residence visas would for that reason be entitled to permanent residence.”[23]
(c)The applicant’s claim that he would experience difficulties in returning to Lebanon because if his conversion to Christianity was not supported by the fact that he and his wife had travelled back and forth between Australia and Lebanon on a number of occasions since January 2000.
(d)The applicant’s claims that he may face persecution in Lebanon were not supported by the fact that his two daughters had already returned there.
(e)The applicant had suffered personal loss and unemployment in Australia. The Tribunal found that there was no reason to believe that he would suffer hardship, other than the frustration of his preference to remain in Australia.
[23] Court Book 610
The Tribunal considered the circumstances in which the ground for cancellation arose. The Tribunal noted that the breach of condition 8107(a)(iii) arose at least in part as a result of the applicant being placed on a work trial program by the Rehabilitation Consultant, acting on behalf of the workers compensation insurers. The Tribunal noted that the insurers accepted that the applicant was on compensation as a result of an industrial accident. As this played a significant part in the applicant’s breach of condition 8107(a)(iii), the Tribunal found that the exercise of discretion in the applicant’s favour was warranted in respect of the breach of condition 8107(a)(iii).
The Tribunal then considered the applicant’s breach of condition 8107(a)(ii), arising from the applicant being a director of Universal Stone (WA) Pty Ltd. The Tribunal found that the exercise of discretion in the applicant’s favour was not warranted in respect of the breach of condition 8107(a)(ii).
The Tribunal stated that the breach of condition 8107(a)(i) was “fundamental to the purpose of the visa granted to the review applicant”[24].
[24] Court Book 611
The Tribunal found that, in view of the circumstances, the exercise of discretion in the applicant’s favour was not warranted in respect of the breach of condition 8107(a)(i).
The Tribunal stated:
Furthermore, the circumstances under which the review applicant and the sponsor parted make it clear that the review applicant will not return to the employment of the sponsor, nor will the sponsor take him back. The review applicant could not return to the employment of the sponsoring business and reinstating the applicant’s subclass 457 visa would not serve the purpose for which the visa had originally been granted.[25]
[25] Court Book 612
The Tribunal was satisfied that grounds existed for cancellation of the applicant’s visa and the reasons for cancelling outweighed the reasons for not cancelling the visa. The Tribunal affirmed the decision that the Temporary Business entry (Class UC) visa be cancelled.
Application for Judicial Review
The applicant commenced proceedings in this Court on 8th October 2007. He claims that the Tribunal fell into error when it found that his activities as a stonemason breached condition 8107(a)(i).
Grounds 2 and 3 of the applicant’s application relate to the applicant’s participation in the workplace rehabilitation program. Ground 2 claims that the Tribunal fell into jurisdictional error when it failed to exercise properly the power conferred on it by ss 348 and 349 of the Migration Act in that it failed to apply the correct interpretation of condition 8107(a)(ii) and, in particular, failed to apply the correct interpretation of the expression “work” in that condition. The ground claims that the Tribunal erroneously held that whether particular activities were “work” was to be determined by reference to the characteristics of the activities in the abstract, rather than by reference to the particular circumstances of the visa holder. Further, the ground claims that the Tribunal erred in failing to consider the particular circumstances of the applicant and failing to inquire whether a person in the circumstances of the applicant would normally receive remuneration for activities as apart of a workplace rehabilitation program.
The applicant’s Ground 3 claims that further or in the alternative, in considering whether the applicant had breached condition 8107(a)(i) the Tribunal failed to have regard to relevant matter, being the circumstances in which the applicant carried out various activities at Universal Stone during the course of a workplace rehabilitation program while he was disabled within the meaning of that expression in the Workers Compensation and Injury Management Act 1981 (WA) and in receipt of compensation in respect of that injury.
This error is claimed to be a jurisdictional error.
Grounds 4, 5 and 6 of the application deal with the Tribunal’s finding that the applicant breached condition 8107(a)(ii) by holding a directorship of Universal Stone (WA) Pty Ltd. Ground 4 claims further and in the alternative that the Tribunal failed to exercise properly the power conferred on it by ss 348 and 349 of the Act in that it failed to apply the correct interpretation of visa condition 8107(a)(ii) and, in particular, failed to apply the correct interpretation of the expression “work” in that condition, in the same way as the applicant claims the Tribunal fell into error in Ground 2.
Ground 4 claims that this failure by the Tribunal was a failure to apply the criterion for the cancellation of the applicant’s visa and is therefore a jurisdictional error.
Ground 5 claims that, further and in the alternative, in consideration whether the applicant had breached condition 8107(a)(ii) the Tribunal failed to have regard to a relevant matter, namely the particular circumstances in which the applicant carried out activities as a director of Universal Stone.
Ground 5 claims that this failure is a jurisdictional error.
Ground 6 claims that, further or in the alternative, in considering whether the applicant had breached condition 8107(a)(ii), the Tribunal took into account an irrelevant matter. This irrelevant matter was the assertion that directors of companies commonly receive remuneration for activities engaged in by them as managers or employees of those companies, that is, in capacities other than as directors.
This failure is claimed to be a jurisdictional error.
The applicant’s Ground 7 claims that, further or in the alternative, in making the decision that it did the Tribunal failed to take certain matters into account when exercising its discretion under s 116 of the Migration Act not to cancel the applicant’s visa.
Applicant’s Submissions
Counsel for the applicant, Mr Ellis, submitted that in finding that the applicant’s activities as a stonemason breached condition 8107(a)(i), the Tribunal fell into error when it found that those activities were “work” within the meaning of the reg 1.03. He submitted that whether any particular activity constitutes “work” within the meaning of the Regulations requires a consideration of all the particular circumstances in which that activity is carried on, including the commercial, social, domestic or altruistic motivations. In some circumstances, an activity may normally attract remuneration but in others it may not. Domestic activities, he submitted, are an example of this principle (see Dib v Minister for Immigration and Multicultural Affairs[26] ; Tikoisuiva v Minister for Immigration[27]; Xu v Minister for Immigration[28]).
[26] (1998) 82 FCR 489 at 495
[27] [2001] FCA 1347 at [11]
[28] [2007] FMCA 285
The applicant’s particular circumstances were such that his activities as a stonemason at Universal Stone would not normally attract “remuneration” and were not “work”. The word “remuneration” is not defined in the Regulations. In its ordinary, “remuneration” means “pay for services rendered” (Chalmers v Commonwealth of Australia[29]).
Mr Ellis submitted that the Tribunal did not apply or have regard to the notion of payment “in exchange” for services (Minister for Immigration, Local Government and Ethnic Affairs v Montero[30]).
[29] (1946) 73 CLR 19 per Williams J at 37
[30] (1991) 31 FCR 50 at 58
Because the applicant was disabled from working as a result of a workplace accident he was receiving compensation payments at the time he participated in the workplace rehabilitation program. These payments were compensation for his disability, not remuneration (Workers Compensation and Injury Management Act 1981 (WA) s 18). Those payments were not made to him by Universal Stone but by the workers compensation insurer for his employer, Aurora Stone. Thus, it is submitted, his activities at Universal were no more “work” than undergoing physiotherapy or participating in an exercise program.
It was further submitted that the fact that the applicant did not receive remuneration for his stonemason activities is not related to his motives or reasons for carrying out those activities (see Kim v Witton[31]).
[31] (1995) 59 FCR 258
Mr Ellis submitted that there was a material failure to apply the correct interpretation of the particular condition of the applicant’s visa, which is a jurisdictional error (Lobo v Minister for Immigration and Multicultural and Indigenous Affairs[32]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[33]; Xu v Minister for Immigration[34]).
[32] (2003) 132 FCR 93 at [42]-[62]
[33] (2004) 207 ALR 12 at [51]
[34] [2007] FMCA 285 at [24]
Counsel for the applicant submitted that the Tribunal’s error in determining that there was a breach of condition 8107(a)(iii) vitiates the Tribunal’s consideration whether there was substantial compliance with his visa. Although a breach of a single condition of a visa may mean that there has not been substantial compliance, the circumstances must be considered in their totality, which means that the number of breaches committed must be considered.
In considering whether an applicant has substantially complied with a condition of his visa the Tribunal must address the circumstances, including whether the breach occurred without fault on the applicant’s part (see Baidakova v Minister for Immigration and Multicultural Affairs[35]).
[35] [1998] FCA 1436 per Katz J
The applicant had alleged that the principal of Aurora Stone had fraudulently deprived a company in which the applicant and Mr Abou Mehri had substantial shareholding of significant assets. He claimed that this person had deprived him of his shareholding in Aurora Marble and Granite, pursued a vendetta against him and sought Mr Abou Mehri’s help in getting the applicant” kicked out” of Australia.
Mr Ellis submitted that the Tribunal failed to consider and determine whether the allegations of fraud and vendetta were true. If the applicant’s allegations were true the termination of the applicant’s employment with Aurora was part of a plan to prevent him from vindicating his rights against the principal and was “an instrument of oppression of the applicant”. Thus, it is argued, the applicant could not be regarded as being to blame for ceasing to work for Aurora in those circumstances.
It is submitted that the Tribunal could not properly have considered the circumstances of the breach without addressing these issues. Therefore, if failed to take into account matters that were central to the exercise of its discretion not to cancel the applicant’s visa.
Mr Ellis further submitted that the Tribunal found that the applicant’s activities as a stonemason had breached condition 8107(a)(iii) because it held that those activities were “work” within the meaning of the Regulations. This involved a material failure to apply the correct interpretation of the condition of the applicant’s visa and is a jurisdictional error (Lobo[36]; SGLB[37]).
[36] supra at [42]-[62]
[37] supra at [51]
Counsel for the applicant then turned to a consideration of the Tribunal’s finding that the applicant breached condition 8107(a)(ii) by holding a directorship of Universal Stone. He agreed that this question had to be considered separately from the impact of the workplace rehabilitation program.
The Tribunal concluded that the activities of a company director, in the abstract, were activities that ordinarily attract remuneration and would therefore be classified as “work” within the meaning of the Regulation.
Mr Ellis submitted that the Tribunal did not consider whether persons who act as directors of small companies in which they have a substantial shareholding normally receive remuneration, i.e. payment in exchange for services of acting as a director. Benefits which a director who is a shareholder might receive, such as an increase in the value of his or her shares, or dividends from the shares, are not “remuneration” in exchange for services as a director. Similarly, remuneration paid to a director in exchange for that person’s services as an employee is not remuneration in exchange for services as a director.
The argument is that the Tribunal did not consider the benefits that might accrue to a director by way of dividends or an increase in the value of his shareholding were remuneration within the meaning of regulation.
Mr Ellis went on to submit that the Tribunal’s erroneous findings that the applicant had breached conditions 8107(a)(ii) and 8107(a)(iii) vitiate the Tribunal’s exercise of its discretion.
Again, the Tribunal specifically made no finding about the allegations of fraud that the applicant had made. Mr Ellis submitted that the Tribunal could only have done so on the basis that the allegations of fraud, even if they were true, were irrelevant to its decision.
He submitted that this was wrong.
In respect of the finding that that applicant’s ceasing to work for Aurora Stone was a fundamental breach of the visa, counsel for the applicant submitted that if the applicant had ceased to work for Aurora Stone:
i)as a result of personal animosity of Mr Taweel (the principal) towards him;
ii)in order to prevent him from pursuing his rights against Mr Taweel; and
iii)in furtherance of the alleged fraud on the applicant committed by Mr Taweel,
the circumstances of the breach would be fundamentally different to the situation where, for example, the applicant had simply resigned or his employment was terminated because of his poor performance as an employee.
Mr Ellis submitted that the fraud allegation also forms part of the circumstances relevant to the applicant’s conduct in becoming a director of Universal Stone, contrary to condition 8107(a)(ii).
The failure to take these matters into account and make a finding in relation to them vitiates the tribunal’s consideration of the circumstances of the breach.
Thus, he submitted, the Tribunal failed to exercise its discretion under section 101 of the Migration Act properly.
First Respondent’s Submissions
Counsel for the first respondent, the Minister for Immigration and Citizenship, Mr Tsaknis, submitted that the Tribunal did not find that the applicant breached condition 8107(a)(i) during the period in which he undertook the workplace rehabilitation program. The Tribunal found that the applicant breached the condition after he ceased the rehabilitation program and did not perform any further work for Aurora Stone after August 2006.
As to the applicant’s second ground, that the Tribunal failed to apply the correct interpretation of “work” in condition 8107(a)(ii), Mr Tsaknis submitted that it is not necessary that the applicant actually be remunerated for the activity to be classified as “work” under the definition in Regulation 1.03. The fact that the activity is without remuneration does not take it outside that category (see Dib v Minister for Immigration and Multicultural Affairs[38], citing with approval Braun v Minister for Immigration, Local Government and Ethnic Affairs[39]).
[38] supra at 494
[39] (1991) 33 FCR 152
He submitted that the decision in Dib is not relevant to this case, but is authority for the proposition that in certain circumstances “work” ordinarily performed for remuneration may not be work for the purposes of Regulation 1.03 where, having regard to all the particular circumstances, the work performed is of a social, domestic or altruistic nature, and not of a commercial nature[40].
[40] at 495
The duties of a director are not normally duties of a social or domestic nature. It was reasonably open to the Tribunal to conclude that a company director normally attracts remuneration for the reasons that it gave.
As to the applicant’s ground that the Tribunal failed to have regard to relevant considerations, Counsel for the Minister submitted that the Tribunal did consider the relevant matters, both from the perspective of a breach of condition 8107(a)(ii) and also on the question of hardship. The weight to be given to the matters was for the Tribunal to determine (Sean Investments v Mackellar[41]). The merits of the decision are for the Tribunal to determine, not the Court (see Minister for Immigration and Multicultural Affairs v Eshetu[42] ).
[41] (1981) 38 ALR 363 at 375 per Deane J
[42] (1999) 197 CLR 611 per Gleeson CJ and McHugh J at [56]
Mr Tsaknis also submitted that unless the facts can be said to be “jurisdictional”, there can be no error of law, let alone jurisdictional error, in making a wrong finding of fact or failing to make a finding of fact (Attorney-General (NSW) v Quin[43]). A finding of fact will be critical, and thus jurisdictional, if it was (or in the case of a failure to make a finding) should have been, essential to the reasoning of the Tribunal to cancel the visa under s 116 of the Act (Enfield City v Development Assessment Commission[44]; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs[45]).
[43] (1990) 170 CLR 1 at 35-36
[44] (2000) 199 CLR 135 at [28]
[45] (2005) 145 FCR 562 at [11]
In summary, Mr Tsaknis submitted that the essential findings the Tribunal was required to make were those contained in condition 8107. Each of the considerations identified by the applicant was, at best, a subsidiary or second category of fact and not a jurisdictional fact.
CONCLUSIONS
The applicant claims that the Tribunal fell into jurisdictional error when it affirmed the delegate’s decision for breaches of condition 8107. The Tribunal found that the applicant had breached condition 8107(a)(i) between August 2006 and March 2007, condition 8107(a)(ii) between 3rd January and 6th July 2006, and condition 8107(a)(iii) between 10th April and August 2006.
The Tribunal found that the exercise of its discretion in the applicant’s favour was warranted in respect of the breach of condition 8107(a)(iii).
The Tribunal correctly found that the operative version of a condition attached to a visa is that which was applicable at the time the visa was granted[46].
[46] Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240 at [19]
Condition 8107(a) at the relevant time provided:
8107 The holder must not:
(a)if the visa was granted to enable the holder to be employed in Australia:
(b)cease to be employed by the employer in relation to which the visa was granted; or
(c)work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
(d)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…
The Tribunal found that the applicant breached condition 8107(a)(i) when he ceased his work trial rehabilitation program, after August 2006, until his visa was cancelled in March 2007. It is not the case that the Tribunal found that the applicant’s involvement in the work trial rehabilitation program was a reason for this finding, because the applicant had ceased to be involved in that program.
The applicant has argued that the Tribunal failed to consider and determine whether his allegations of fraud and a vendetta against him by the principal of Aurora Stone were true. The Tribunal noted that the applicant claimed that he was the victim of a fraud by the owners of Aurora Stone, his previous sponsor, and this matter was raised at the hearing. The applicant’s witnesses corroborated the claim.
The Tribunal made no finding about the claim but:
(N)otes that in the absence of any current or proposed action by the claimed victim(s) there appears to be no useful purpose served by treating this claim as a reason against cancelling the review applicant’s visa[47].
[47] Court Book 610
The Tribunal noted that it had been told that both ASIC and the police had been informed of the alleged fraud “and that taking the matter to court would be expected to take some 4 or 5 years, cost about $100,000 and have little chance of success”[48].
[48] Ibid
Thus, the applicant’s allegations of fraud remained just that, allegations. Moreover, they were allegations that were not intended to be taken any further in a court of law. It was entirely appropriate for the Tribunal to assess that piece of information and to decide that it would make no finding about the allegations.
It was no part of the function of the Migration Review Tribunal to conduct its own inquiry into the veracity of the fraud allegations. Fraud is a serious allegation requiring a high standard of proof. The alleged perpetrators of the fraud were not before the Tribunal and it would have been inappropriate for the Tribunal to make such a serious finding without giving the parties alleged to have committed the fraud an opportunity to present their own case or to make submissions as to why a finding of fraud should not be made against them.
It was certainly no part of the Tribunal’s function in reviewing the delegate’s decision to cancel the applicant’s visa to conduct ex parte proceedings as to whether there had been a fraud by the principal or principals of Aurora Stone.
It was for the applicant to make out his case. There was no obligation on the Tribunal to conduct its own inquiries. The applicant made claims that there had been a fraud on him and a vendetta against him, and made it clear that no court proceedings were proposed or under way. The Tribunal made its assessment of that information and decided that no useful purpose would be served by treating this claim as a reason against cancelling the applicant’s visa.
This was a finding open to the Tribunal and no jurisdictional error is made out.
The Tribunal found that the breach of condition 8107(a)(ii) had been made out in respect of the period in which the applicant was a director of Universal Stone (WA) Pty Ltd, 3rd January to 6th July 2006.
The applicant contends that the Tribunal fell into error in two ways in making this finding:
(1)It failed to apply the correct interpretation of the expression “work” in condition 8107(a)(ii); and
(2)It failed to have regard to a relevant matter, namely the particular circumstances in which the applicant carried out activities as a director of Universal Stone.
In making its finding, the Tribunal considered the definition of “work” in Regulation 1.03, as an activity that, in Australia, normally attracts remuneration. The Tribunal noted that the duties of a company director are extensive and carry substantial responsibility. The Tribunal also noted that the applicant said that his duties as a company director at Universal Stone included managing the business and training juniors.
The Tribunal considered the submissions on behalf of the applicant that his activities were not “work” within the meaning of the regulation and that whilst, on the one hand, directors of high profile public companies usually receive remuneration, on the other, directors of small family companies do not receive remuneration[49].
[49] Court Book 608
The Tribunal considered exceptions such as charitable and community organisations, where directors were not remunerated. The Tribunal also noted that it was common for directors of small proprietary companies to be managers or employees, for which they received remuneration. However, the Tribunal went on to find that:
The Tribunal does not accept that the directors of Universal Stone (WA) Pty Ltd undertook their duties, which would be considered work in the normal sense of the word, with no expectation of remuneration[50].
[50] Court Book 608-609
This was a finding made by the Tribunal after considering the evidence. It is a finding that was open to the Tribunal. It was, as counsel for the first respondent submitted, reasonably open to the Tribunal to conclude that the role of a company director normally attracts remuneration.
I am also satisfied that the Tribunal did consider the relevant matters when it decided that the applicant’s role as a director was an activity that, in Australia, normally attracts remuneration and was therefore “work” within the meaning of regulation 1.03. It was immaterial that the applicant was not receiving director’s fees.
The Tribunal also considered whether to exercise its discretion to cancel the applicant’s visa, noting that it had to consider all relevant circumstances before reaching a decision whether to cancel the visa was the correct or the preferable decision[51]. The Tribunal devoted several pages of discussion in the decision to considering the various matters, including the purpose of the visa holder’s travel to and stay in Australia, the extent of non-compliance with any conditions of the visa, the degree of hardship that may be caused to the visa holder and any family members, the circumstances in which the ground for cancellation arose, whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations, the applicant’s behaviour in relation to the Department, and other matters. This consideration included an examination of the applicant’s claims of fraud[52].
[51] Court Book 609
[52] Court Book 610-612
Contrary to the applicant’s submission, this consideration did extend to the particular circumstances in which the applicant carried out activities as a director of Universal Stone.
It is for the Tribunal to assess the merits of the evidence. It is no part of the role of a court conducting judicial review to trespass into the realm of reviewing the merits of an administrative decision the subject of the review (SZLHM v Minister for Immigration & Citizenship[53], citing Attorney-General (NSW) v Quin[54]). It was for the Tribunal to decide what weight it should give to various matters (Abebe v Commonwealth[55].
[53] [2008] FCA 754 at [9]
[54] (1990) 170 CLR 1 at 35-36
[55] (1999) 197 CLR 510; [1999] HCA 14 at [197]
It is noteworthy that the Tribunal did consider the circumstances in which the ground for cancellation arose and, on the basis of that consideration, found that the exercise of discretion was warranted in the applicant’s favour in respect of the established breach of condition 8107(a)(iii).
The Tribunal found that condition 8107(a)(iii) had been established between 10th April and August 2006. The Tribunal based this finding on the activities undertaken by the applicant as a stonemason with Universal Stone, which the Tribunal found to be activities that would normally attract remuneration. Thus, those activities were found by the Tribunal to be “work” as defined by Regulation 1.03.
The short answer to the applicant’s challenge to this finding, even though the Tribunal eventually decided to exercise its discretion in favour of the applicant in this particular matter, is that it was a finding open to the Tribunal on the evidence. The Tribunal did consider relevant matters, including the fact that the work trial program was being conducted at Universal Stone, a company where the applicant was a director and shareholder.
No jurisdictional error is made out in respect of any of the applicant’s grounds.
In the absence of jurisdictional error, the Tribunal decision is a privative clause decision as defined by subsection 474(2). It is final and conclusive and not subject to remedies in the nature of certiorari, mandamus or declaration (s 474(1)).
The application will be dismissed with costs.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.L. Coutman
Date: 17 July 2008
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