Sadek v Minister for Immigration
[2006] FMCA 64
•31 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SADEK v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 64 |
| MIGRATION – Judicial review – Migration Review Tribunal – student visa – whether jurisdictional error. |
| Migration Regulations 1994, Condition 8105 Migration Act 1958, ss.116, 192 |
| Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 |
| Applicant: | ABU SADEK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2501 of 2003 |
| Judgment of: | McInnis FM |
| Hearing date: | 20 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 31 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. A. F. L. Krohn |
| Solicitors for the Applicant: | Vernon Da Gama & Associates |
| Counsel for the Respondent: | Mr. R. C. Knowles |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 10 November 2003.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs fixed at $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
SYG 2501 of 2003
| ABU SADEK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application seeking review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 10 November 2003.
The Tribunal affirmed a decision under review to cancel the subclass 573 (higher education sector) visa held by the review Applicant. The Applicant has relied upon a further amended application filed 31 May 2005 and contentions of fact and law filed the same day. The Applicant who is represented also relied upon further oral submissions at the hearing of this application. The First Respondent has relied upon contentions of fact and law filed 22 June 2005.
The Applicant, who is a citizen of Bangladesh, arrived in Australia on 20 May 2000 as the holder of a student (temporary) (class TU) visa ("temporary student visa"). He was granted two further temporary student visas, the last of which was valid until 5 November 2002.
On 11 November 2002 the First Respondent's delegate granted the Applicant a third further temporary student visa valid until 31 August 2004. It is common ground that the visa was subject to Condition 8105 in Schedule 8 of the Migration Regulations 1994 ("the Regulations").
On 30 April 2003, the Applicant received from a delegate of the First Respondent a notice of intention to consider cancellation of his temporary student visa. To understand the basis upon which the notice was prepared, it is necessary to note that apparently this student was observed by an officer, presumably of the Department to be wearing a uniform and working as a kitchen hand at Cafe Fioriani’s. A file note referred to by the Tribunal which appears in the Court Book (page 5) appears to be dated 1 May 2003, though it is assumed that this is the file note referred to by the Tribunal as a note referring to the observations made on 30 April 2003, the date upon which the notice was given to the Applicant, to which reference will be made further in this judgment.
The file note from the officer of the Department described as "team leader-hospitality task force" states relevantly the following:-
“Subject was located by the Hospitality Taskforce during field work conducted at Cafe Fiorianis - Shop 279 Darling Harbour. Subject was working as a kitchenhand - wearing uniform and observed working.
Subject held a student visa s/c 573 with 8105 work limitation - detained s192 and escorted to Lee St. Subject stated that he also works at Jordon’s Restaurant, Darling Harbour. Subject cancelled for 8105 breach and detained s189.
Some concern over whether subject is a genuine student given the number of hours he is working - purpose of stay in A/a may not be study.”
From that observation, which fails in any way to record the number of hours worked by the Applicant, who as a condition of his visa is permitted to engage in paid employment at least up to 20 hours per week during term, the Applicant was detained and placed in detention pursuant to s.192 of the Migration Act 1958 (“the Act”). He was escorted to the Department's office. It was only then, after the Applicant had reported to having also worked at Jordon’s Restaurant that he was issued with a Notice of Intention to Consider Cancellation (“the NOITC”) his visa, based upon a possible breach of Condition 8105.
The NOITC (Court Book page 1) simply states under the heading “Possible Grounds for Cancellation” the following:-
“You may have breached condition 8105 of your student visa by working in excess of 20 hours per week for a week while school is in session.”
In the NOITC there is further reference under Part B - Record of Decision Whether to Cancel Visa, to the following, which relates to what is described as "evidence of and reasons why grounds for cancellation do or do not exist," where the following appears:
“Visa holder stated that he worked 12 hours at Jordons per week. He later changed this statement to around 11 hours per week. He stated today was his first day working at Fiorianis. He was later presented with evidence of shifts and agreed that he has worked there since December 2002. The general manager stated that he works around 16 to 20 hours per week. Time sheets from Fiorianis indicates in March 2002 he worked 8‑10 hours. His shift hours do not change substantially between holiday and term time.”
In the same NOITC a decision is made which the decision-maker records and for which the following reasons are given (Court Book page 4):
“I am satisfied the visa holder has not complied with condition 8105 of his visa. I have taken all statements from visa holder and his employers. I am satisfied his shifts add up to over 20 hours per week during term time. He has stated he does not work over 20 hours however, he has lied about his work at Fiorianis and his statements about his hours at Jordons are not consistent. I am satisfied grounds for cancellation exist and outweigh the reasons not to cancel.”
Perhaps the extraordinary thing to note from this chronology is that the student was detained on grounds of a simple observation that he was engaged in paid employment. There does not appear to be any contemporaneous material before arresting the person which would otherwise provide a prima facie basis upon which the detention occurred. Certainly there is no material in the Court Book which would indicate that the officer had been provided with other material prior to the detention of the Applicant.
Further it appears that a conclusion is reached based upon documentary material referred to as "time sheets from Fioriani’s Cafe". It is common ground that there are no time sheets currently available, and it is not clear to the Court precisely what documents were referred to by the arresting officer. Documents which were produced are roster sheets, which the Tribunal itself examined and concluded that those sheets are "a roster and not a record of hours actually worked". It reached that conclusion and then stated that following:-
“… This is further borne out by the fact that on some sheets the review applicant's name is scratched out and another name written in.”
The Tribunal had received from the Applicant material supporting his claim that he had not worked in excess of 20 hours during term in contravention of the Condition. Specifically, it had received from the Applicant submissions from his representative and those submissions included a reference to the head chef of Fioriani’s Cafe. The submissions dated 12 August 2003, specifically states the following:-
“Please note that in response to your letter dated 17 July 2003, we have already talked to the respective managements of Fiorani’s Cafe and Jordon’s Seafood Restaurant. They have confirmed us that they are the established restaurants and they never allow any student to work full time during his/her semester. In this regard, Mr. Shofik, the head chef of Fiorani’s Cafe, who has been working in this restaurant for long time, has provided us some verbal responses detailing Mr. Sadek's work history. If necessary, he may provide a written statement later.
According to Mr. Shofik, our client has informed him that he is not allowed to work more than 20 hours in a week during his term time. Mr. Sadek also informed Mr. Shofik that he was working in Jordon’s seafood restaurant. In this situation, Mr. Shofik always put Mr. Sadek's available work hour in the roster and if he has enough hours to work, within 20 hours time which also includes his working hours in Jordon’s restaurant, then he comes to work. Mr. Shofik further informed us that being a reputed restaurant, they never employ any student as their permanent staff.
Mr. Shofik further mentioned that although he often put Mr. Sadek's name in the roster, however it does not mean that Mr. Sadek worked following this roster. They often make this roster just to indicate their panel workers, especially causal workers, that on these days they can work with them. In his opinion, Mr. Sadek's actual working hours was strictly limited to few hours and to fill up these hours he could work at any day. Therefore, we also believe that it was impossible to assess the total hour of work of any of the employee depending on an assumed roster.
After reviewing his roster, it looks like Mr. Sadek has worked more than 20 hours just for three weeks. In fact, he did not work three separate days on those weeks. Our client informed us that on 8 April 2003 he left work two hours earlier than his scheduled time. Mr. Shofik has confirmed this...”[sic]
The reference in that submission is to confirm by Mr. Shofik of the Applicant leaving work two hours earlier on 8 April 2003 is crucial to this application. In simple terms, it would appear that after examining in some detail rosters from Fioriani’s Cafe and records undisputed from Jordon’s Restaurant, the only period of time where it could be claimed that there has been some noncompliance with Condition 8105 of the visa would appear to be, as found by the Tribunal, for the week ending 13 April 2003. Significantly, the Tribunal states in its reasons the following:-
“…the Tribunal finds that the review applicant still worked in excess of 20 hours in the week ending 13 April 2003 since he worked 10 hours on 8 April 2003. The review applicant claims that he in fact left work 2 hours early on 8 April but he has not produced any evidence to substantiate that claim. He has not been able to produce any pay records from Fiorani to substantiate the hours that he worked. He claims that the Manager confirmed that he left early but again has not produced any further evidence. On other days when he left two hours earlier, at 2 pm, this is noted on the roster.”[sic]
Significantly, the Tribunal then goes on to make the following finding:-
“46. The Tribunal accepts therefore the explanation given by the review applicant, and in the absence of evidence, to the contrary that the roster sheets from Fiorani are a roster and not a record of hours actually worked. This is further borne out by the fact that on some sheets the review applicant’s name is scratched out and another name written in. The Tribunal accepts that the review applicant did visit the doctor on the days mentioned and was prescribed medicine for influenza. It is likely that he did not attend work on 21 March, 28 March and 1 April because of ill health, although there is not record that his name was scratched out and another substituted as in another case. However in the case of the work done on 8 April which was in addition to the 11 hours and 15 minutes that the review applicant did at Jordon’s during that week, the Tribunal is not satisfied that the review applicant left two hours early as he claims he did. The review applicant claimed that the was rostered the hours at Fiorani that he knew were spare after his regular job at Jordon’s but the evidence is that he was rostered on for ten hours that day.
47. The Tribunal finds therefore that there review applicant did exceed the 20 hour limit during the week ending 13 April 2003. The Tribunal accepts the review applicant’s evidence that the tried to stay within the work limitation when his course was in session and that he has explained other apparent breaches satisfactorily. However he has not been able to produce any payment or work records other tan the roster. On the basis of the evidence that is before it the Tribunal finds that the review applicant was in breach of condition 8105 on his visa.”
It is apparent from those extracts from the Tribunal's finding that ultimately, what has occurred after a detailed analysis of hours worked in other weeks is that the Tribunal has only managed to identify one week where the Applicant during term has apparently not complied with Condition 8105 by working 21 hours 15 minutes in total for the week ending 13 April 2003. If one were to accept the Applicant's evidence together with the submission provided on his behalf by his then representatives, referring to the corroboration from the head chef of Fioriani’s Cafe, then in this instance it is clear that the Applicant would not have been found to have failed to comply with Condition 8105 of his visa. Hence this finding of working one hour 15 minutes for one week, namely, the week ending 13 April 2003, conceded to be a week falling during a term, is of crucial significance and has resulted in cancellation of the visa.
It is perhaps not surprising that the Tribunal comments in its conclusion as follows:-
“… Although the Tribunal has found that the breach was minimal and occurred on no more than one occasion the Tribunal does not have a discretion not to cancel the visa.”
In the further amended application the Applicant claims, significantly for the present purposes, the following:-
“(1) The decision was affected by jurisdictional error in that the Tribunal failed to apply the correct test, applied the wrong test, and therefore looked at irrelevant matters, and failed to have regard to relevant matters.
Particulars
(a) The Tribunal considered whether it was satisfied the applicant had not been in breach of condition 8105 on the visa, rather than whether it was satisfied that the applicant had not complied with condition 8105, the question made relevant by section 116(1)(b) and 116(3) of the Migration Act 158 and Regulation 2.43(2)(b)(ii) of the Migration Regulations 1994;
(b) The Tribunal regarded section 116(1)(b) and 116(3) of the Migration Act 1958 and Regulation 2.43(2)(b)(ii) of the Migration Regulations 1994 as requiring mandatory cancellation of the applicant's visa, but on a proper construction of the said Act and the Regulations the Tribunal had a discretion whether to cancel the visa if it was satisfied the applicant had not complied with condition 8105 and ought to have considered all circumstances of the applicant's alleged breach of the said condition.
(2) The decision was affected by jurisdictional error in that the Tribunal had no evidence as the basis of the decision.
Particulars
On the basis of the Tribunal's own findings of fact, "that the roster sheets from Fioriani are a roster and not a record of hours actually worked" (CB 127.4), there was no evidence from which the Tribunal could have concluded that the applicant worked more than 6 hours on 8 April 2003, or indeed any hours at Fioriani’s on that day.”
Relevant legislation
“2.1At the time of its imposition on the applicant’s temporary student visa, condition 8105 in Schedule 8 to the Regulations relevantly stated that:
… the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session.
2.2Section 116 of the Act provides for cancellation of visas and relevantly states that:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)…; or
(b)its holder has not complied with a condition of the visa; or
(c)-(g) ….
(1A)-(2) ….
(3)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
2.3Subregulation 2.43 (2) of the Regulations relevantly states that:
For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)…; and
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(i)condition 8104 or 8105 (if the condition applies to the visa): or”
“Item 8105 of Schedule 8 to the Regulation provided condition 8105 to which the visa was subject:
“8105 (1) Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session.
(2) Subclause (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the commonwealth Register of Institutions and Courses for Overseas Students.”
Submissions
During the course of submissions, it became evident to the Court that the primary ground relied upon appears to be ground 2 set out earlier in this judgment. In my view, the other ground relied upon cannot be sustained, and I accept as a matter of law the submissions made for and on behalf of the Respondent that this Court is bound by the decision of the Full Court of the Federal Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 [57]-[66] which essentially provides that in these circumstances the Applicant's argument that a visa cancellation is not mandatory is untenable.
Further, I see no substance in particular (a) subjoined to ground 1 in this application. It seems to me that the Tribunal has applied the correct test pursuant to s.116 of the Act and Regulation 2.43 of the Regulations in its decision. I am satisfied, as submitted by counsel for the First Respondent, the Tribunal correctly set out the applicable provisions and referred to relevant judicial consideration of those provisions. It specifically then went on to make the finding that:
“… the review applicant still worked in excess of 20 hours in the week ending 13 April 2003 since he worked 10 hours on 8 April 2003.”
It is clear that that finding, together with the other findings set out earlier in this decision, could not lead to a conclusion that the Tribunal had reached a decision that it was not satisfied the Applicant had complied with Condition 8105. It had made a factual finding, and in my view, the remaining significant issue is ground 2 referred to earlier in the further amended application.
In support of that ground, counsel for the Applicant referred the Court to the extract of the Tribunal's decision, where it clearly made its own finding concerning the roster. I accept that on a proper reading of the Tribunal's decision that it had in this instance received submissions concerning the meaning of the roster sheets from Fioriani’s Café and had accepted the explanation as it states "given by the review applicant" in relation to those roster sheets being a roster and "not a record of hours actually worked".
The only evidence therefore submitted by the Applicant, which arises from the material before the Tribunal would appear to be the evidence provided by the Applicant. That evidence, of course, includes not simply the evidence of the Applicant himself but the submissions provided for and on behalf of the Applicant, including a reference to the head chef at Fioriani’s Café who, it was indicated, could have provided a statement.
The Respondent has submitted that in this instance there is indeed evidence upon which the Tribunal could reach its adverse conclusion. It is submitted that in this instance the complaint is without foundation as it relies upon a construction of the Tribunal's reasons which is not reasonably open. It is argued by the First Respondent that in accepting the roster sheets were "not a record of hours actually worked", the Tribunal found that the roster would not always tally precisely with the actual hours worked by the employees.
It is noted that the Tribunal accepted that the roster was not definitive evidence of the hours actually worked. It was submitted by the First Respondent, however, that it is clear that the Tribunal considered that the roster was some evidence of the hours actually worked by the Applicant. It was argued that, in the absence of evidence to the contrary, the Tribunal was inclined to accept the roster as evidence of actual hours worked by the Applicant. The only evidence that was argued contrary to the roster in respect of the week ending 13 April 2003 was what is referred to as the "unsubstantiated claim of the Applicant", which it was submitted the Tribunal did not accept. That approach, it was argued, is open to the Tribunal and does not disclose jurisdictional error.
During the course of submissions counsel for the First Respondent referred the Court to the decision of the Federal Court in Nejad v Minister for Immigration & Multicultural Affairs [2001] FCA 1399 and in particular paragraph 4 of that ex tempore decision, where the Court states the following:-
“Importantly, this Court cannot change a decision of the Tribunal even if it thinks the Tribunal was wrong on the facts: see Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426. The Tribunal does not have to have rebutting evidence available before it can lawfully hold that a particular factual assertion is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs )1994) 34 ALD 347 AT 348. Likewise, illogical reasoning will not provide a ground of review: see Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565. Finally, the Tribunal does not in its statement of reasons have to provide a line-by-line response to an applicant’s case: see Re Minister Immigration & Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407.”
Reasoning
In my view, on a proper reading of the material, I am satisfied that, whilst theoretically it may be considered that the Tribunal regarded the roster as "some evidence", it is difficult to conclude that that evidence could in any way be regarded as evidence of the hours "actually worked" by the Applicant or indeed anyone else on the roster. So much is clear from the Tribunal's own finding, if the roster is found to be a document which is "not a record of hours actually worked", then it is difficult to determine how it could then subsequently form what might be described as "some evidence" upon which the Tribunal could rely.
Whilst it is clearly the case that in matters of this kind, the Tribunal is entitled to make a finding of fact on the available material and does not have to seek or obtain rebutting evidence, it should nevertheless have some evidence upon which it can rely. It is clear to me in this application that from the outset there has been a misinterpretation of the roster sheets. That misinterpretation started with a reference by the arresting officer to the documents being "time sheets". From the outset the Applicant has asserted that he had not breached the condition of his visa. He provided that evidence to the Tribunal. The Tribunal itself, correctly and clearly, made a significant finding as to the roster sheets, correcting the initial impression, and precisely finding that those sheets "are not a record of hours actually worked".
I do not accept the submissions made for and on behalf of the First Respondent that in the circumstances of this case it could properly be inferred that the Tribunal then regarded that as "some evidence" upon which it then relied to make its crucial finding that the review Applicant "did exceed the 20-hour limit during the week ending
13 April 2003". Despite the apparent absence of any payment or work records other than the roster that was produced by the Applicant, it cannot, in my view, be then open to the Tribunal, having rejected the roster sheets as not disclosing a record of hours actually worked to then somehow reach a finding of fact contrary to the only available evidence, namely, the evidence from the Applicant himself together with the submissions provided by his then representative, to reach an adverse conclusion in this matter, which clearly was fatal to the Applicant's application.
This finding therefore is clearly a finding of fact which does attract judicial review, as I am satisfied it constitutes jurisdictional error.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must of course affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24).
It follows for the reasons given that the decision of the Tribunal should be set aside and the First Respondent should pay the Applicant's costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 January 2006
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