SINGH v Minister for Immigration

[2013] FCCA 1547

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1547

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – visa – Subclass 572 visa – conditions – prohibition on working more than 20 hours a week while in Australia – meaning of “work – “work” includes activities not remunerated – whether the Tribunal incorrectly considered the applicant’s activities as “work” – whether the Tribunal lacked sufficient evidence to find that the applicant had engaged in “work” – Tribunal correctly identified breach of visa condition – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Migration Regulations 1994 (Cth), regs.1.03, 2.43

Amandeep v Minister for Immigration and Citizenship (2011) 253 FLR 358
Department of Social Security v Danielson (1996) 44 ALD 19
Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Kim v Witton (1995) 59 FCR 258
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: RAJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 881 of 2012

Judgment of: Judge Burnett

Hearing date: 24 April 2013

Date of Last Submission: 24 April 2013

Delivered at: Brisbane

Delivered on: 9 October 2013

REPRESENTATION

Counsel for the Applicant: Mr L. Burrow

Solicitors for the Applicant: Gopal and Chand Lawyers

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the title to the proceedings be amended by substituting the name “Minister for Immigration and Border Protection” for the name “Minister for Immigration and Citizenship” as the name of the First Respondent.

2. That the application filed on 5 October 2012 be dismissed.

3. That subject to application by either party direct that within seven days of the date of this order the Applicant pay the respondents’ costs of and incidental to these proceedings fixed in the sum of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 881 of 2012

RAJINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 12 October 2011 a delegate of the First Respondent (the Minister) sent a notification of cancellation of the Applicant’s visa because the delegate was satisfied that the Applicant had breached visa condition 8104. Condition 8104 provides limits on the weekly hours a relevant visa holder may engage in work. The Applicant applied for review of the delegate’s decision by the Migration Review Tribunal (the Tribunal).[1] On 10 September 2012 the Applicant was notified that a decision notice had been issued on that date refusing his application and affirming the decision to cancel his Subclass 572 Vocational Education and Training Sector visa.

   [1] MRT case number: 1110873.

2. The Applicant considers the Tribunal’s decision to be infected by an error of law amounting to jurisdictional error and has applied to this Court for judicial review.

Background Facts

1. The Applicant is an Indian national who arrived in Australia on a Student (Temporary) (Class TU) Subclass 572 visa on 25 June 2009. He was granted a further Subclass 572 visa subject to condition 8104 on 3 March 2013. The principal visa holder is the Applicant’s wife. Notwithstanding that fact, he too is bound by the terms of condition 8104, which materially provides that family members must not engage in work for more than 20 hours a week.

2. On 20 September 2011 a delegate of the Minister sent to the Applicant a notice of intention to consider cancellation of his Student (Temporary) (Class TU) Subclass 572 visa under s.116 of the Migration Act 1958 (Cth) (the Act) because the Minister had received information from Black & White Cabs showing that the Applicant had worked from more than 20 hours per week in breach of condition 8104.

3. In response to the delegate’s notice, the Applicant wrote on 12 October 2011:

   “Hi myself Rajinder Singh. I received ur letter about notice of intention my visa. my wife is a student. I have dependent visa. my agent consult me wrong. they told Me I’m spouse, I can do work full time. and my wife allowed just 20 hours. agent gave me visa letter, it did not mention in visa that spouse is only for 20 hrs. My agent gave me half information. it’s not our fault. I did work by mistake. plz give me once chance. I will not do work more than 20 hrs in future.”

4. Subsequently the delegate sent a notification of cancellation in respect of the Applicant’s visa because he was satisfied that the Applicant had breached condition 8104. The Applicant sought review of that decision by application lodged on 17 October 2011. He subsequently attended the Tribunal hearing on 3 September, gave evidence and presented arguments in relation to those matters. At that time he was accompanied by his wife and migration agent.

Acts and Regulations

1. Section 116(1)(b) of the Act gives the Minister power to cancel a visa where the Minister is satisfied that the visa holder has not complied with the conditions of his or her visa. In particular it provides that the Minister must cancel the visa if there exists “prescribed circumstances.”

2. Regulation 2.43(2) of the Migration Regulations 1994 (Cth) (the Regulations) sets out prescribed circumstances for the purpose of s.116(3). One of the prescribed circumstances in which the Minister must cancel the Applicant’s visa is where “the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa).”[2]

   [2] Regulation 2.43(2)(b)(i).

3. Condition 8104 is contained in Schedule 8 to the Regulations. A version of the condition which was then applicable relevantly provided:

   “8104(1) Subject to subclauses (2) to (6), the holder must not engage in work for more than 20 hours a week while the holder is in Australia.

   …

   (6) In this clause:

   week means the period of 7 days commencing on a Monday.”

4. Regulation 1.03 defines work as “an activity that, in Australia, normally attracts remuneration.” It is to be noted that work may also include activities for which a visa holder is not remunerated as long as it is an activity that normally attracts remuneration. In Kim v Witton (1995) 59 FCR 258 at 268 Sackville J observed,

   “The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial motives or for some other reason. The test to be applied is an objective one, namely whether the “activity” performed by the individual normally attracts remuneration in Australia.”

The Grounds of Application

1. In the application the grounds of application were identified as,

   “1. The decision maker made an error of law amounting to a jurisdictional error, namely a mistaken conclusion;

   2. The Decision Maker has asked itself the wrong question and/or ignored relevant material and has thus made an error of law, amounting to a jurisdictional error;

   Particulars

   A.In relation to Ground 1, the decision did not consider as to what constitutes work in Taxi Industry and whether the Applicant was an employee or a contractual worker. The Tribunal made an error of law, it exceeded its authority and this is a jurisdictional error.

   B.In relation to Ground 2 for Judicial Review, the Tribunal in considering the definition of work failed to make proper inquiries in this regard. The Tribunal has fallen into jurisdictional error.”

Ground One

1. The first ground relied upon was that the Tribunal did no more than state that the test “requires going beyond the nature of the activity in question to the particular context of the assistance provided,”[3] and did not go on to consider it. Respectfully, I do not agree.

   [3] Tribunal decision at paragraph 16.

2. At paragraph 25 the Tribunal stated,

   “25. The Tribunal put to the Applicant that information provided to the Department by Black and White Cabs indicates that in the week commencing Monday 6 June 2011 to Sunday 12 June 2011 the Applicant worked for them as a taxi driver for 76 hours (logged as 75 hours 53 minutes). The records indicate that from 13 June 2011 to 11 September 2011 that the Applicant exceeded 20 hours work in each week during that period. This suggests that the Applicant had failed to comply with condition 8104 to which his visa was subject and would be a reason for affirming the delegate’s decision to cancel the Applicant’s visa.”

3. The Tribunal subsequently observed that when this was put to the Applicant he agreed that he worked for more hours than was allowed, but claimed this occurred because of an honest mistake on his part. It found that he did in fact work in excess of 20 hours per week, observing:

   “35. The information provided by the Applicant from Black and White Cabs indicates that the Applicant was working as a taxi driver in excess of 20 hours during week commencing Monday 6 June 2011 to Sunday 12 June 2011 and each in each week during the period from 13 June 2011 to 11 September 2011. The Tribunal regards the time the Applicant was logged in as time spent working as a taxi driver. The Tribunal is satisfied that the activity that the Applicant was engaged in – driving a taxi – is an activity which normally attracts remuneration, being work as defined in r.1.03. It is satisfied on the evidence that the Applicant worked for more than 20 hours during any week of 7 days commencing on a Monday.”

4. In his written outline, counsel for the Applicant summarised the issue to be determined by the Court as whether “… the Tribunal was correct in finding that what the Applicant did was ‘work.’”[4] He contended that what the Tribunal was required to do was to engage in a two stage process, first considering what was meant by ‘work’ and then asking whether what the Applicant did was ‘work.’

   [4] Applicant’s outline of submissions at paragraph 4.

5. He contended that the definition of ‘work’ requires a consideration of whether what the person does is something for which a person is normally remunerated. He noted the High Court’s observations in Hollis v Vabu Pty Ltd (2001) 207 CLR 21 at 44 concerning working arrangements:

   “… The method of payment, per delivery and not per time period engaged, is a natural means to remunerate employees whose sole duty is to perform deliveries, not least for ease of calculation and to provide an incentive more efficiently to make deliveries.”

6. Relying upon those remarks, he contended:

   “That is, it is not a starting point to say that time is remunerated. As noted by the Tribunal the test ‘requires going beyond the nature of the activity in question to the particular context of the assistance provided.’”[5]

   [5] Applicant’s outline of submissions at paragraph 19.

7. He contended that while the Tribunal identified the test, it did no more than state it, and it failed to undertake a proper consideration of that test. He noted that the Tribunal had evidence of the Applicant being logged on or engaged as a taxi driver for greater than 20 hours in a number of weeks. However, it was said that the test for ‘work’ requires an objective consideration of whether the person ‘works’ and is not determined merely by the existence of a commercial motive or characterisation.

8. Counsel for the Applicant stated that the Tribunal merely asked whether the Applicant performed work for commercial purposes and submitted that there was no evidence of actual remuneration. Accordingly, he contended that there was insufficient evidence upon which the Tribunal could have found that the Applicant engaged in work for the specified hours nominated, that being the 76 hours logged in the Black & White Taxi records. It was contended that, in the absence of sufficient evidence, the Tribunal was wrong in finding that the Applicant engaged in work in excess of 20 hours for the nominated weeks, as the mere recording of log entries might demonstrate a commercial aspect to the Applicant’s usage of time and evidence of that fact was not itself enough to prove work.

9. Respectfully, both points were previously unsuccessfully argued by Counsel for the Applicant in the case of Amandeep v Minister for Immigration and Citizenship (2011) 253 FLR 358, when they were addressed by his honour Federal Magistrate Jarrett (as he then was). For reasons which follow, I do not depart from his Honour’s view on this matter.

10. The Tribunal did undertake a proper consideration of ‘work.’ Its reference to the significance of being logged in as indicative of time spent as a taxi driver highlighted that consideration. While the Tribunal did not, for instance, express its thoughts on issues incidental to engagement as a taxi driver, as for instance was observed in Amandeep at paragraph 19, that matter is inutile. A Court should not be too quick to criticise the judgment of the Tribunal by reviewing it with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

11. The decision in this case accords with the Tribunal’s consideration of the facts in Amandeep, a case based on essentially the same facts.

12. In this case, unlike Amandeep, the parties before the Tribunal proceeded largely upon the premise that the Applicant had breached the condition. The focus of the parties before the Tribunal was upon whether or not the Applicant’s conduct could be excused. In my view, the conduct was sufficiently considered and the Applicant’s contention that there was failure to undertake a proper consideration of it cannot be sustained.

Ground Two

1. The Applicant’s second argument fails for similar reasons.

2. The second argument advanced by the Applicant was that there was insufficient evidence before the Tribunal to enable it to find that the Applicant had engaged in work for the specific hours nominated. In particular, it was contended that the Applicant’s concessions before the Tribunal were not sufficient of themselves to satisfy the objective evidentiary burden. However, in addressing the adequacy of evidence in the context of administrative decision making, Cooper J stated in Department of Social Security v Danielson (1996) 44 ALD 19:

   “… that there is no direct evidence of a fact does not necessarily mean that there is no evidence of a fact. Courts and tribunals are frequently asked to infer the existence of a particular fact from the existence of a series or number of other facts which, taken together, suggest that the existence of the particular fact in question is more probable than not. The particular fact (the principal or ultimate fact or factum probandum) is inferred from the existence of the other fact or facts (the evidentiary fact or factum probans). Proof of a fact in issue is legitimately undertaken in this way …”

3. In this case the Tribunal had before it evidence of the Applicant being logged on in Black & White Cabs’ records. That evidence was supported by the Applicant’s concession that he had worked for over 20 hours per week in the relevant period. Taken together, and in the absence of a denial, I consider the Tribunal to have had sufficient objective evidence before it to be satisfied to the requisite standard, that is, on the balance of probabilities, that the Applicant had worked in the sense defined in the Regulations for greater than 20 hours per week. Accordingly, the Applicant had breached condition 8104. Given the Tribunal’s finding of fact and the fact that the breach was in respect of a prescribed condition the Tribunal was bound to conclude, as it did, that the delegate’s decision was correct and had to be affirmed.

Conclusion

1. The Applicant contends the Tribunal erred by failing to undertake a proper consideration of an activity in order to determine whether the activity in question was ‘work.’ I am satisfied that it did and this ground fails. He further contended that the Tribunal did not have available sufficient evidence to satisfy itself that the Applicant had engaged in work for the specific hours nominated. I do not accept that contention.

2. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Burnett

Date:9 October 2013