Rahhal v Minister for Immigration and Anor (No.2) - [2008] FMCA 935

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAHHAL v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2008] FMCA 935

MIGRATION – VISA – Business visa – Temporary Business Entry (Class UC) visa – Subclass 457 (Business (Long stay)) visa – refusal of visa – application for review of decision of Migration Review Tribunal to affirm decision that applicant not entitled to grant of Temporary Business Entry (Class UC) visa – breach of condition 8107 – work – whether applicant was engaged in work – whether Tribunal failed to apply the criterion for the cancellation of the applicant’s visa – clause 457.221 – remuneration – discretion – exercise of discretion – substantial compliance – 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

Pradhan v Minister for Immigration and Multicultural Affairs [1999] FCA 1240 followed
Baidakova v Minister for Immigration & Multicultural Affairs [1998] FCA 1436 cited
Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCAFC 167 cited
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
Sean Investments v Mackellar (1981) 38 ALR 363 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
Nguyen v Minister for Immigration & Multicultural Affairs (1998) 158 ALR 639 cited

Applicant:

ABDUL SALAM AHMAD RAHHAL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

PEG 195 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 195 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 31^st August 2007 and handed down on 11^th September 2007. The Tribunal affirmed the decision of a delegate of the Minister that the applicant was not entitled to the grant of a Temporary Business Entry (Class UC) visa.
The applicant seeks relief for the following reasons (taken from the Outline of the Applicant’s Submissions):
(a)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.
(b)The Tribunal failed to consider whether there had been substantial compliance with the applicant’s visa by failing to consider those contraventions were the result of and in furtherance of the fraudulent conduct of the principal of his sponsoring employer.
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 13^th January 2000. He left Australia on 1^st June 2000 and returned on 10^th 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 31^st January 2005. This visa was due to expire on 31^st January 2008, but it was cancelled on 16^th 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 22^nd August 2005 and August 2006. During that time the applicant was engaged in a workplace rehabilitation program at a company called Universal Stone (WA) Pty Ltd.
On 21^st 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 23^rd 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 3^rd 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 6^th July 2006[4].
[4] Court Book10-12, 478
On 2^nd May 2006, Mr Shehade of Aurora Stone forwarded to the Department a copy of a medico-legal report dated 18^th April 2006 by Dr J.M. Hill, referring to an examination of the applicant on30th 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 7^th 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:
(a)that on 24^th 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;
(b)that according to ASIC records the applicant owned one of two shares in Universal Stone (WA) Pty Ltd;
(c)that the applicant ceased to be a director and shareholder of Universal Stone (WA) Pty Ltd from 6^th July 2006;
(d)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;
(e)that there was evidence of the applicant providing quotes for stonework on behalf of Universal Stone on 3^rd April and 10^th May 2006;
(f)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 23^rd August 2006.
The applicant’s solicitors wrote back on 22^nd 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 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 23^rd October 2006, Aurora Stone advised the Department that the applicant ceased to be employed by the company on 7^th September 2006.
The Department sent a second Notice to Consider Cancellation of the applicant’s visa to his solicitor on 13^th December 2006. The solicitor replied on 20^th December 2006, stating that the applicant had not resigned form his employment and was not in breach of condition 8107(a)(i).
The applicant’s visa was cancelled on 16^th March 2007.
The applicant applied for a fresh Temporary Business (Long Stay) subclass 457 visa on 21^st March 2006. That application was refused on 22^nd August 2006. The applicant applied to the Migration Review Tribunal for review of the decision not to grant him a visa on 31^st August 2006
On 23^rd 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 22^nd June 2007.
The applicant’s solicitor made a written submission to the Tribunal on 21^st June 2007.
The applicant gave evidence to the Tribunal on 22^nd June 2007, as did his wife and Mr Tony Abou Mehri.
After the hearing, the applicant’s solicitor wrote to the Tribunal on 3^rd and 10^th August 2007, providing further medical evidence.

The Tribunal Decision

The Tribunal handed down its decision on 11^th September 2007. A copy of the Tribunal Decision Record appears at pages 476 to 486 of the Court Book.
The Tribunal’s findings are set out in the Court Book on pages 481 through to 486.
The Tribunal noted that the applicant was seeking a visa for longer than 3 months, so he could only be considered against the criteria for a subclass 457 (Business (Long stay)) visa. The Tribunal also noted that to meet the requirements of a subclass 457 visa an applicant must satisfy the criteria in clause 457.221:
If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa[10].
[10] Court Book 482
The Tribunal went on to note that the delegate was not satisfied that the applied had complied substantially with the conditions that applied to the last substantive visa that he had held. The delegate found that the applicant had breached condition 8107 which applied to his earlier subclass 457 visa, granted on 31^st January 2005.
The Tribunal referred to Pradhan v Minister for Immigration and Multicultural Affairs[11] which states that the operative version of a visa condition is the version that was applicable at the time the visa was granted and noted the version of condition 8107 that applied at that time. The Tribunal found that condition 8107(a) was relevant.
[11] [1999] FCA 1240
The Tribunal noted the applicant’s evidence that he had worked for Aurora Stone (WA) from the time of the grant of his visa until his industrial accident on 22^nd August 2005. His employer’s workers compensation insurers accepted his claim.
The Tribunal first considered the applicant’s situation between 22^nd August 2005 and August 2006, when the applicant was on workers compensation. The applicant commenced a work trial program on 10^th April 2006 at Universal Stone (WA). Whilst the applicant remained an employee of Aurora Stone during that time, the applicant’s Rehabilitation Consultant and the applicant’s general medical practitioner both believed that it was not feasible for the applicant to work at Aurora Stone, because of the poor relationship between the applicant and his employer.
The applicant attended Universal Stone from 10^th April until a date in August 2006, although he remained an employee of Aurora Stone. The Tribunal considered the definition of “work” as it appears in Regulation 1.03 of the Migration Regulations 1994:
Work
means an activity that, in Australia, normally attracts remuneration.
The Tribunal found that the applicant had breached condition 8107(a)(iii) of his subclass 457 visa in the period from 10^th April 2006 to August 2006 and gave these reasons:
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. All the indicia of employment are present in the visa applicant’s activities at Universal Stone (WA) Pty Ltd. The Tribunal finds that the activities undertaken by the visa applicant during the relevant period were ‘work’ within the meaning to be given to that term. The Tribunal further finds that the ‘work’ undertaken by the visa applicant was undertaken for Universal Stone (WA) Pty Ltd and not the sponsor of the time, Aurora Stone (WA) Pty Ltd[12].
[12] Court Book at 484
The Tribunal then went on to consider the period from August 2006, when the applicant’s workers compensation ceased, until March 2007, when his visa was cancelled. The Tribunal noted the applicant’s evidence that he did not go back to Aurora Stone after his workers compensation scheme was settled because they had “kicked him out”[13] and he did not work at all from then on until March 2007. Aurora Stone had written to the Department of Immigration and Citizenship on 23^rd October 2006 stating, inter alia, that the applicant ceased to be employed by Aurora Stone on 7^th September 2006.
[13] Ibid
The Tribunal found that a breach of condition 8107(a)(i) had been made out for that period of time, stating these reasons:
The Tribunal is not satisfied that the visa applicant continues to be in any sense employed by the sponsor, Aurora Stone (WA) Pty Ltd, and finds that the breach of condition 8107(a)(i) is made out in respect of the period from the end of his work trial rehabilitation program, August 2006, until the cancellation of his visa on March 2007[14].
[14] Ibid
The Tribunal then proceeded to assess whether the applicant had complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa, as required by clause 457.221.
The Tribunal was satisfied that condition 8107 applied at all relevant times from the issue of the subclass 457 visa until its cancellation. It then referred to the decision of Katz J in Baidakova v Minister for Immigration & Multicultural Affairs[15], where his Honour referred to the matters to be taken into account when deciding whether an applicant has substantially complied with a condition of his or her visa:
These include the nature and significance of the breach, whether or not the applicant deliberately flouted the condition and, if the applicant failed to appreciate the breach of the condition, what if anything had contributed to that failure, including whether the Department had misled the applicant[16].
[15] [1998] FCA 1436
[16] Court Book 485
The Tribunal considered that the nature of the breach in the period August 2005 to August 2006 was that the applicant worked for a business that was not his sponsoring business. The Tribunal accepted the applicant’s claim that there was an antagonistic relationship between the applicant and Aurora Stone and it was not feasible for him to undergo a workplace rehabilitation program at those premises. The Tribunal found that the major contributor to the applicant’s breach of the condition was the poor relationship between the applicant and the employer and said:
In the period August 2005 to August 2006, it is arguable that the visa applicant did not deliberately flout the condition, in the sense that that he was recommended to work at another employer by his medical advisors[17].
[17] Ibid
The Tribunal then proceeded to consider the period from August 2006, when the applicant’s workers compensation claim was settled, until March 2007, when his visa was cancelled. During that time, the applicant did not work at all, contrary to condition 8107(a)(i). The Tribunal said:
It is arguable that the visa applicant did deliberately flout the condition, since he was aware of it and had previously held a Class UC visa with the same condition[18]
[18] Court Book 485

The Tribunal then found that there was a “significant” breach of the condition:
The purpose of a subclass 457 visa is to allow the holder to be employed by an appropriately qualified sponsor. In all of the circumstances of the case, the Tribunal is not satisfied that visa applicant (sic) did not deliberately flout the condition, and the Tribunal is satisfied that the visa applicant was not in any way misled by the Department[19].
[19] Ibid
The Tribunal attached no significance to the fact that the applicant was found to have breached only two of the three elements of condition 8107, relying on the decision of the Full Court of the Federal Court in Jayasekara v Minister for Immigration & Multicultural & Indigenous Affairs[20].
[20] [2007] FCAFC 167 at [14]
The Tribunal found that the applicant did not meet the requirements of clause 457.221 and so the application for a visa must fail. The Tribunal then noted that the applicant’s wife and children were also applicants and found:
To meet clause 457.321 the visa applicant’s spouse and children must be the member(s) of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa. As the visa applicant does not satisfy the primary criteria for a subclass 457 visa, or any other subclass, the Tribunal finds that the visa applicant’s spouse and children do not satisfy the criteria for a subclass 457 visa or any other subclass[21].
[21] Court Book 486
The Tribunal referred to allegations in the files about possible fraudulent actions by the applicant and also fraudulent actions claimed to have been perpetrated against him. The Tribunal stated:
The Tribunal is not empowered to deal with issues of character under section 501 of the Act and no character issues were raised by the delegate in the decision to refuse the grant of the visa[22].
[22] Ibid
The Tribunal affirmed the delegate’s decision, finding that the applicants were not entitled to the grant of Temporary Business Entry (Class UC) visas.

Application for Judicial Review

The applicant commenced proceedings in this Court on 8^th October 2007. He claims that the Tribunal fell into error.
Ground 2 of the applicant’s application relates to the applicant’s participation in the workplace rehabilitation program. The ground 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)(iii) 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 error claimed in the ground is said to be a failure to apply the criterion of the applicant’s visa and a jurisdictional error.
Ground 3 claims that the Tribunal failed to take relevant considerations into account in exercising its discretion not to cancel the applicant’s visa, notwithstanding that there had been breaches of the conditions of the visa.
Those relevant considerations were said to be claims that a director of Aurora Stone, one Bassam Taweel, had acted improperly towards the applicant and that there was a vendetta between Mr Taweel and the applicant. The ground claims that, as a consequence:
(a)It was not reasonable to expect the applicant to participate in a return to work program at Aurora Stone;
(b)Aurora Stone would not have participated in a return to work program by providing suitable alternative duties to the applicant;
(c)The applicant was prevented from working for Aurora Stone; and
(d)Aurora Stone terminated the applicant’s employment.
The application further claims that these considerations were contained in a document which formed part of the file maintained by the Department of Immigration and Citizenship and was therefore before the Tribunal for the purposes of the application to the Tribunal. Those considerations were also the subject of oral evidence given to the Tribunal in the course of the hearing on 22^nd June 2007 by:
(i)the applicant;
(ii)the applicant’s wife; and
(iii)Mr Antoine Abou-Mehri
The Tribunal’s failure to take these relevant considerations into account was claimed to be a jurisdictional error.

Applicant’s Submissions

Counsel for the applicant, Mr Ellis, submitted that in concluding that the applicant had breached condition 8107(a)(iii) by participating in the workplace rehabilitation program the Tribunal had erred in its interpretation of the condition, particularly in regard to the meaning of the expression “work”. He submitted that the Tribunal failed to examine the circumstances in which the applicant’s activities were carried out and whether remuneration would normally be received in those circumstances. As a consequence, the Tribunal failed to take into account a relevant factor, the facts “peculiar” to the applicant’s circumstances, including the fact that he engaged in activities as a stonemason at Universal Stone as part of the workplace rehabilitation program (see Dib v Minister for Immigration and Multicultural Affairs[23]).
[23] (1998) 82 FCR 489 at 495
Whether any particular activity constitutes “work” within the meaning of Regulation 1.03 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 other circumstances it may not. Domestic duties are an example (Dib v Minister for Immigration and Multicultural Affairs[24]; Tikoisuiva v Minister for Immigration[25]; Xu v Minister for Immigration[26]).
[24] supra
[25] [2001] FCA 1347 at [11]
[26] [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 meaning, “remuneration” means “pay for services rendered” (Chalmers v Commonwealth of Australia[27]). 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[28]).
[27] (1946) 73 CLR 19 per Williams J at 37
[28] (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). The extent of the payments is determined by statute and not by the extent of the worker’s exertion on a rehabilitation program during the period that compensation is paid. 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[29]). It was not something that the applicant had arranged by waiving payment, but it was an incident of his circumstances which would be shared by others in similar circumstances.
[29] (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[30]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[31]; Xu v Minister for Immigration[32]).
[30] (2003) 132 FCR 93 at [42]-[62]
[31] (2004) 207 ALR 12 at [51]
[32] [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[33]).
[33] [1998] FCA 1436 per Katz J
The applicant had alleged that the principal of Aurora Stone, Mr Bassam Taweel, had fraudulently deprived a company in which the applicant and Mr Abou Mehri had substantial shareholding of significant assets. He claimed that Mr Taweel 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. This failure was implicit in the Tribunal’s decision.
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 considered, and found, that the applicant was aware of the conditions of his visa, but that was a different matter.

First Respondent’s Submissions

Counsel for the first respondent, the Minister for Immigration and Citizenship, Mr Tsaknis, submitted that the Tribunal made factual findings in substantially the same terms as the cancellation decision. It also made a finding that was unchallenged, that the purpose of the visa was to enable the applicant to work for Aurora Stone. The Tribunal had regard to the fact that the applicant undertook work as part of a rehabilitation program and that the applicant remained employed by Aurora Stone. The weight to be given to those matters was for the Tribunal to determine (Sean Investments v Mackellar[34]).
[34] (1981) 38 ALR 363 at 375 per Deane J
The question for the Tribunal to determine was whether the applicant undertook “work” for Universal Stone, not whether he was employed by Universal Stone. The Tribunal’s finding was open to it for the reasons that it gave.
Thus, he submitted, the applicant’s first ground should fail.
As to the applicant’s second ground, a failure to take into account relevant considerations, Mr Tsaknis submitted that the Tribunal had had regard to the fact that the applicant “did not get along” with Mr Taweel, had been “kicked out” of Aurora Stone, that there was a “personal vendetta” against the applicant and an antagonistic relationship between the applicants and the owners of Aurora Stone. The Tribunal had also had regard to the fact that the applicant had not complied with his visa and had considered his claims against Mr Taweel and Aurora Stone in that context. The Tribunal had also considered that the applicant’s returning to work at Aurora Stone was not an option. He submitted that it was open to the Tribunal to conclude that, notwithstanding those matters, the applicant undertook “work” for Universal and there was not a substantial compliance with condition 8107.
Mr Tsaknis also submitted in the alternative that the considerations identified by the applicant were not essential to the reasoning of the Tribunal, but secondary facts. Unless those 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[35]). 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 refuse the visa (Enfield City v Development Assessment Commission[36] ; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs[37]).
[35] (1990) 170 CLR 1 at 35-36
[36] (2000) 199 CLR 135 at [28]
[37] (2005) 145 FCR 562 at [11]
He 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 (VXDC v Minister for Immigration and Multicultural and Indigenous Affairs[38]).
[38] supra at [14]
Mr Tsaknis also submitted that the applicant accepted the findings that he did not work from August 2006 until 16^th March 2007, the date that his visa was cancelled, nor did he challenge the Tribunal’s finding that, for that reason, there was no substantial compliance with the conditions that applied to the applicant’s last substantive visa. Clause 457.221 of the Regulations requires that there must be substantial compliance with the conditions that applied to the last substantive visa held by the applicant for a new visa to issue.
In those circumstances, he submitted, it would be futile to remit the application to the Tribunal and it ought to be refused (Nguyen v Minister for Immigration & Multicultural Affairs[39]).
[39] (1998) 158 ALR 639 at 648

CONCLUSIONS

The applicant claims that the Tribunal fell into jurisdictional error when it affirmed the delegate’s decision. The Tribunal found that the applicant had breached two elements of condition 8107 of his last substantive visa. It found that the applicant had breached condition 8107(a)(iii) between 10^th April and August 2006. It also found that a breach of condition 8107(a)(i) was made out in respect of the period from the end of the applicant’s work trial rehabilitation program in August 2006 until his visa was cancelled in March 2007[40].
[40] Court Book 484
The Tribunal found that the applicant had not substantially complied with the conditions that applied to his last substantive visa and found, therefore, that the applicant did not meet the requirements of clause 457.221.
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[41].
[41] 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:
(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…
The Tribunal found that the applicant breached condition 8107(a)(iii) in the period from 10^th April to August 2006 when he was working at Universal Stone on the work trial rehabilitation program.
The Tribunal considered the definition of “work” in Regulation 1.03 and found that the activities that the applicant undertook as a stonemason would normally attract remuneration. The Tribunal found that all the indicia of employment were present in the applicant’s activities at Universal Stone and therefore found that those activities were “work” within the meaning given to the term. The Tribunal also found that this work was undertaken for Universal Stone and not the sponsor, Aurora Stone.
The applicant contends that the Tribunal fell into error in making this finding in that:
(a)It failed to apply the correct interpretation of the expression “work” in condition 8107(a)(iii); and
(b)It failed to consider the particular circumstances of the applicant and it failed to inquire whether a person in the circumstances of the applicant would normally receive remuneration for activities as part of a workplace rehabilitation program.
I am of the view that the Tribunal’s findings that the activities undertaken by the applicant as a stonemason at Universal Stone would normally attract remuneration and would therefore be classified as “work” were findings made by the Tribunal after considering the evidence. It was open to the Tribunal to make the findings that it did on that evidence.
I am also satisfied that the Tribunal did consider the applicant’s particular circumstances but still found that the applicant was engaged in “work” for the purposes of Regulation 1.03.
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[42], citing Attorney-General (NSW) v Quin[43]).
[42] [2008] FCA 754 at [9]
[43] supra at 35-36
The applicant’s Ground 2 has not been made out.
The Tribunal also 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. That finding is not challenged by the applicant and I am of the view that no jurisdictional error appears in that finding.
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 noted that:
A number of allegations and defences exist in the files about possible fraudulent actions by the visa applicant and, separately, fraudulent actions perpetrated against the visa applicant. The Tribunal is not empowered to deal with issues of character under section 501 of the Act and no character issues were raised by the delegate in the decision to refuse the grant of the visa[44]
[44] Court Book 486
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, which is implicit in the Tribunal decision.
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. The Tribunal made its assessment of that information and decided that it was not empowered to deal with those issues..
This was a correct assessment by the Tribunal and no jurisdictional error is made out.
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 one (101) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A.L. Coutman

Date: 17 July 2008