Thacker v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 772

FEDERAL COURT OF AUSTRALIA

Thacker v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 772

MIGRATION – application for review of decision by Migration Review Tribunal affirming decision by Minister to cancel Temporary Business Entry visa – whether applicant breached condition 8107 by engaging in work for another person or on his own account – whether failure to exercise jurisdiction where Tribunal failed to consider whether applicant, at law, was an employee of the sponsor – application dismissed.

DEVESH DHIRENDRA THACKER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

N 136 OF 2005

HILL J
10 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 136 OF 2005

BETWEEN:	DEVESH DHIRENDRA THACKER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS RESPONDENT
AND:	THE MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
JUDGE:	HILL J
DATE:	10 JUNE 2005
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for judicial review of the Migration Review Tribunal’s decision be dismissed.
2. The applicant pay the first respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 136 OF 2005

BETWEEN:

DEVESH DHIRENDRA THACKER
APPLICANT

AND:

AND:

MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

THE MIGRATION REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA
SECOND RESPONDENT

JUDGE:	HILL J
DATE:	10 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J

1. The applicant, Mr Thacker, applies to the Court for judicial review of a decision of the second respondent, the Migration Review Tribunal (“the Tribunal”). Application for such a review is made pursuant to s 39B of the Judiciary Act1903 (Cth), made relevant to proceedings in the Tribunal by s 475A of the Migration Act 1958 (Cth) (“the Act”).

2. The background facts to the present application can be shortly stated.  Mr Thacker was granted, in September 2002, a Subclass 457 visa.  The sponsor for that visa was John Haywood Enterprise Pty Ltd (“Haywood”).  Mr Thacker had applied for a new Subclass 457 visa with another sponsor in December 2003, but this application was refused.  It may be noted that the Tribunal refers both to Mr Thacker holding a Subclass 457 visa and to his holding a Temporary Business Entry (Class UC) visa.  I presume that the two visas are the same.  Certainly, they were treated as the same by the Tribunal and by the parties before me.  Nothing therefore seems to turn upon this.

3. In November 2003, the Department of Immigration and Multicultural Affairs received information from an informant, or informants, that Mr Thacker was operating a business on his own account under the name “Jebi Solutions” (ABN: 16 716 631 127).  In March 2004, the applicant was sent a notice of intention to consider cancellation of his Subclass 457 visa.  Mr Thacker responded to that notice denying that he had breached any condition of the visa.  Among the conditions applicable was condition 8107 which was in the following terms:

   “The holder must not:
   (a)

   (i) cease to be employed by the employer 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…” 

4. The employment in relation to which the visa was granted was Mr Thacker’s employment with Haywood.

5. On 21 April 2004, Mr Thacker’s visa was cancelled.  He applied to the Tribunal for review of the cancellation decision.  The Tribunal affirmed the Department’s decision.  The applicant then applied to this Court for judicial review of the Tribunal’s decision.

6. The reasons of the Tribunal set out various documentary information which was on the Department’s files.  Having regard to the way the present application was argued, it is not of real relevance to set out that information or other evidence before the Tribunal.  It suffices to say that Mr Devesh had registered a business name, Jebi Solutions, obtained registration under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) on the basis that he was carrying on an enterprise, performed services for Beatstar Pty Ltd, a company trading under the name “Knotts Pine” and invoiced for those services. He lodged Business Activity Statements with the Commissioner of Taxation and paid Goods and Services Tax on supplies which, in those statements, he claimed to have made. He claimed, and his claim was corroborated, to some extent at least, by Haywood, to have always been an employee of that company and to have been paid by Haywood a salary which payment consisted of Haywood permitting him to keep the amounts invoiced by Mr Thacker to, and paid to him by, Knotts Pine and banked by him to the credit of a bank account. Haywood apparently paid no superannuation contributions for Mr Thacker as might be expected (it was said that Haywood apparently decided that it was not obliged to do so) if Mr Haywood was an employer and there was some conflicting evidence as to tax instalment deductions under the PAYG deduction system said to have been made by Haywood. Some taxation documents which were consistent with Mr Thacker’s case were, the Tribunal noted, prepared after the present issue arose. Ultimately, the business name Jebi Solutions was registered in the name of Haywood, after Mr Thacker’s registration of that name was cancelled. Again, that happened after the present dispute arose and the Tribunal did not find this compelling evidence in favour of Mr Thacker.

7. The Tribunal concluded that Mr Thacker engaged in work for another person or on his own account while undertaking the employment in relation to which the visa was granted by performing work for Beatstar Pty Ltd from 10 October 2002 to 25 March 2004, in breach of condition 8107. Accordingly, it found that there was a ground for cancelling the visa pursuant to s 116(1)(b) of the Act. 

8. The Tribunal then considered whether it should exercise its discretion in favour of Mr Thacker and not cancel the visa.  It declined to exercise the discretion to do so.  It was of the view that the reasons for not cancelling the visa did not outweigh the reasons for cancelling the visa.  For this reason, it affirmed the decision of a delegate of the Minister to cancel Mr Thacker’s Temporary Business Entry (Class UC) visa.

9. For Mr Thacker, it was submitted that the Tribunal’s decision was affected by jurisdictional error.  This was said to be founded upon a failure by the Tribunal to ask itself the central question necessary for resolution of the issue of whether Mr Thacker undertook work in contravention of condition 8107.  The central question was said to be whether the relationship between Mr Thacker and Haywood was a relationship of employer-employee to be determined in accordance with the tests posited by the High Court in Stevens v Brodribb Sawmilling CompanyPty Ltd (1985) 160 CLR 16 and Hollis v Vabu Pty Ltd (2001) 207 CLR 21. This is the only question which is the subject of the present application.

10. With respect to the submission, it must fail.  It was not necessary that the Tribunal decide whether an employment relationship existed between Mr Thacker and Haywood in the present circumstances.  The only issue posed for decision by the Tribunal was whether Mr Thacker had engaged in work for another person (not being Haywood) or was engaged in work on his own account while he was undertaking the employment in relation to which the visa was granted.  The matter can be tested this way: it was open to the Tribunal to find on the evidence that Mr Thacker was engaged in work on his own account in contracting with Knotts Pine.  If it so found, it was not necessary for it to find that he was or was not an employee of Haywood.  The fact of his running his own business had the consequence he was in breach of the visa condition.  Similarly, it was perhaps open to the Tribunal to find that Mr Thacker was engaged in work for Knotts Pine, albeit, not on his own account.  If it so found it was not necessary for it to find that he was or was not an employee of Haywood.  In either case, and whether or not an employee of Haywood, he was in breach of condition 8107.  If it had been the case that he was not an employee of Haywood, he would have ceased to have undertaken the activity in relation to which the visa was granted (ie, employment with Haywood) and thus would have been in breach of Condition 8107(a)(i).  This was not the case alleged against him.

11. Although it does not matter, it would seem that the Tribunal accepted, for the purpose of the case before it, that Mr Thacker was not in breach of condition 8107(a)(i) but rather, was still undertaking employment with Haywood.  However, it found him to be in breach of condition 8107(a)(iii) on the basis that he either was engaged in working on his own account or in working for Knotts Pine.  There was no need in these circumstances for the Tribunal to consider whether or not Mr Thacker was an employee of Haywood.  Mr Thacker was in breach of condition 8107.  It follows that the Tribunal made no jurisdictional error in failing to consider whether Mr Thacker was an employee of Haywood.  Rather than it being essential for its jurisdiction that it determine whether he was an employee of Haywood, it was not necessary for it to do so at all.  There was no failure of the Tribunal to exercise its jurisdiction.  The Tribunal made no jurisdictional error.

12. The decision of the Tribunal was thus a privative clause decision with the consequence that the application for judicial review of the Tribunal’s decision must be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             10 June 2005

Counsel for the applicant:	L J Karp
Solicitor for the applicant:	Associated Legal
Counsel for the respondents:	J A C Potts
Solicitor for the respondents:	Sparke Helmore
Date of Hearing:	2 June 2005
Date of Judgment:	10 June 2005