Wolff v Donovan
[1991] FCA 222
•03 MAY 1991
Re: FERNANDO MONTERO
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and JAMES
WILLIAM McLOUGHLAN
No. D G4 of 1991
FED No. 222
Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
DARWIN REGISTRY
Olney J.(1)
CATCHWORDS
Migration - visitor visa issued subject to "no work" condition - cancellation of visa before entry into Australia - absolute discretion of Minister's delegate to cancel visa - apprehension that condition of entry would be breached - meaning of "work"
Migration Act 1958, ss. 14, 17, 23, 26
Migration Regulations, r. 18
HEARING
DARWIN
#DATE 3:5:1991
Counsel for the applicant: Mr C. McDonald
Solicitors for the applicant: Loftus and Cameron
Counsel for the respondent: Mr T. Riley QC and Mr S. Ridgeway
Solicitors for the respondent: Australian Government Solicitor
JUDGE1
When the applicant, a citizen of the Republic of the Philippines, arrived at Darwin airport in the early hours of 10 March 1991 his passport contained a valid Australian entry visa but for reasons which will appear later, the second respondent refused him entry into Australia and cancelled his visa. The applicant now seeks the review of that decision upon grounds which will be more readily understood once the particular facts of the case have been canvassed.
The application is brought pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). There is no dispute that the applicant is a person aggrieved by the decision to cancel his visa and refuse him entry, nor that the decision is one in respect of which the Court has jurisdiction to review.
The application was tried on affidavit evidence. The applicant relied upon his own affidavit sworn 21 March 1991, and affidavits of his sister Teresita Muscat (sworn 13 March 1991), Renato Rebano Penaloza (sworn 13 March 1991, 18 March 1991 and 21 March 1991) and Jeanette Christine Scott (sworn 18 March 1991). The respondents relied upon affidavits of the second respondent (sworn 8 April 1991 and 11 April 1991) and of Consuelo Stewart (sworn 22 March 1991 and 9 April 1991). A limited number of objections were taken on both sides to the contents of some of the affidavits and I made appropriate rulings. I do not think that any of those rulings are controversial and nothing turns upon any of the material excluded as a result. None of the deponents was called for cross-examination.
The first affidavit of the second respondent sets out reasons for the action he took and these reasons are accepted as a satisfactory response to a request made on behalf of the applicant pursuant to section 13 of the ADJR Act for him to furnish a statement as required by that section.
In view of the absence of contention between the parties as to the broad facts of the case, it will be convenient to summarise, and to some extent paraphrase, the second respondent's affidavits in order to provide a detailed statement of the facts and circumstances giving rise to the decision under review. In so doing I do not ignore the applicant's own evidence and that of his witnesses. However, it appears to me that on the very narrow set of facts upon which the challenged decision was based, there is no significant dispute between the parties.
The second respondent is and was at the relevant time a delegate of the Minister for Immigration, Local Government and Ethnic Affairs pursuant to section 176 of the Migration Act 1958 for the exercise of power under section 26 of the Act, and an authorised officer for the purposes of section 89 of the Act. On 10 March 1991 he was at Darwin Airport performing duties as Immigration Inspector to process passengers arriving on Royal Brunei flight BI763. There were 40 passengers, among them the applicant. The applicant is the holder of a passport number G730365 issued by the Republic of the Philippines. The passport contains an Australian entry visa issued to the applicant on 20 February 1991. The visa is a visitor class visa and bears the notation "Work Prohibited". The applicant first came to notice after having passed through the primary line barrier. His Inward Passenger Card indicated that he was visiting relatives but gave only a post office box as his intended address. The second respondent approached the applicant and had a short conversation with him in words to the following effect:
Second Respondent: "Who are you visiting?"
Applicant: "My sister."
Second Respondent: "What's her address?"
Applicant: "I don't know but I have a paper with it on."
The applicant then produced an Affidavit of Support, signed by Joseph Muscat and Teresita Muscat of Humpty Doo in the Northern Territory, which he had amongst his luggage. The second respondent noted this address on the applicant's passenger card. The applicant then proceeded to the baggage inspection area.
A short time later the second respondent was approached by a Customs Officer from the baggage inspection area who produced the applicant's passport and informed the second respondent that the applicant had no money. The second respondent advised him he had sighted an Affidavit of Support for the applicant.
The Customs Officer then informed the second respondent the applicant had hardly any luggage but did have a lot of documents, some of which were not in his own name. The second respondent agreed to examine the documents at the baggage inspection area. He was shown a number of documents and examined them briefly in the applicant's presence. The documents included a group certificate and income tax return in the name of John Montero, and biodata documentation in the name of Mario Celis. The second respondent asked the applicant questions to the following effect:
"Is this documentation yours? Did you bring this to Australia?"
As the applicant appeared not to understand the second respondent moved closer and repeated the questions, speaking more loudly.
The applicant said: "Yes."
Second respondent: "Why do you have the group certificate and the tax return for Johnny Montero?"
The applicant did not respond.
Second respondent: "Why do you have the biodata for Mario Celis?" The applicant looked vague and the second respondent thought that he might possibly need the assistance of an interpreter.
At this stage the second respondent noted that the applicant's Inward Passenger Card indicated that his usual occupation was "cook". On examining the documents on the baggage inspection desk once more he saw there were menus and recipes among them. He asked the applicant why he had brought these papers to Australia but the applicant appeared not to understand. He concluded that the services of an interpreter would be required.
Later, the second respondent divided the applicant's documents into four groups: identification papers; work references; papers not appearing in his name; and a number of menus and recipes most of which were typed or handwritten in English. The identification documents comprised a birth certificate, security papers and licences. The six work references were for the applicant from employers in the Philippines and Saudi Arabia for whom he had worked as a cook. The other group of documents comprised: a letter addressed to Tessie Muscat; biodata in the name of Mario Celis; group certificates and other financial records in the name of John Montero.
After ascertaining that the applicant's mother and a friend were present at the airport to meet the applicant and having had a conversation with them, during which he was informed that the applicant's sister conducted a small food stall at the Rapid Creek market, the second respondent was approached by a Customs Officer (Mr Parkes) who said words to the effect:
"This man's just said that he's going to work in Australia." Parkes then said to the applicant: "Are you going to work in Australia?"
The applicant gave no answer. The second respondent informed Parkes that, for the purpose of further questioning the applicant, he would be arranging for the services of an appropriate language interpreter.
After first establishing that the applicant spoke the Visayan dialect, the second respondent contacted the Department of Immigration, Local Government and Ethnic Affairs Telephone Interpreter Service (TIS), identified himself and asked for an interpreter who could speak the applicant's dialect. He was connected to an interpreter and outlined to her the reason he required her services. He requested the interpreter to introduce herself to the applicant and advise him that he wanted to talk to him about the circumstances of his entry and his intentions when he entered Australia. He then had a conversation with the applicant translated by the interpreter and carried out using a dual handset telephone. The questions asked and the replies provided by the interpreter were in words to the following effect.
After having shown the applicant all of the documents which were found in his luggage the second respondent said:
"Did Mr Montero bring these documents with him?" Applicant: "Yes."
Second Respondent: "Why did you come to Australia?" Applicant: "I came to visit my sister and my mother who live at Humpty Doo."
(The second respondent says he recalls the interpreter said the applicant had said he hadn't seen his mother for 8 years.) Second respondent: "What do you do for a living?" Applicant: "I'm a cook."
Second respondent: "Why did you bring with you documents which relate to your previous employment?"
Applicant: "I have worked in Saudi Arabia as well as the Philippines. Brought them as a means of identification."
Second respondent: "Do you have any family in the Philippines?" Applicant: "Yes, my wife and two children."
Second respondent: "How long are you intending to stay?" Applicant: "Two to six months and I will not stay longer. At the end of my stay I will return to the Philippines."
Second respondent: "Are you aware of any conditions on your visa?" Applicant: "I'm aware that I cannot work in Australia." Second respondent: "Why did you have Johnny Montero's documents?" Applicant: "Johnny's my brother. He asked me to bring them." Second respondent: "What about Mario Celis's biodata document? Why did you bring that?"
Applicant: "I brought it to Australia for the purpose of finding a penpal for Celis."
Second respondent: "Do you have any money?"
Applicant: "No, I don't really have any money. My sister and mother are going to support me during my stay in Australia." Second respondent: "Why have you brought these other documents to Australia - the menus and recipes?"
Applicant: "I brought them to Australia to give them to my sister and to help her to prepare food to sell at the markets."
The second respondent then told the interpreter he wished to halt the conversation in order to contact the Regional Director of the Department of Immigration, Local Government and Ethnic Affairs to discuss the case. The interpreter translated and then hung up. The applicant left the office.
The second respondent then telephoned the Regional Director, Malcolm Paterson, at his home, and recounted what had occurred. After concluding the conversation he invited the applicant back into the office. He said, and indicated by gestures, that he would again contact an interpreter. He rang the TIS and was connected to the same interpreter. He then had a further conversation with the applicant in the same manner as the earlier translated conversation, in words to the following effect:
Second respondent: "Are you to receive any payment for helping your sister out with the cooking?"
Applicant: "If my sister pays me it will be like pocket money." Second respondent: "Why did you bring the menus and recipes?" Applicant: "I brought them to give to my sister. I was going to teach my sister to cook certain menus for food sales at the markets." Second respondent: "What are your intentions in regard to helping your sister?"
Applicant: "I am going to help my sister prepare food for her stalls."
On the basis of the additional answers given by the applicant which confirmed his earlier views with respect to the applicant, the second respondent decided that there were sufficient grounds for the applicant's visa to be cancelled and for him to be refused entry to Australia.
He then went over with the applicant the information he had given and said words to the following effect:
"From what you've told me about your intention to help your sister, you will be working. That is a form of work for immigration purposes. If you did work in that fashion it would be a problem. In view of the fact that you intend to teach your sister a skill, there could also be a problem. Your intention, expressed on two occasions, to teach and to help your sister prepare food for sale together with the documentation in your possession at the time of your arrival places serious doubt in my mind as to your bona fides as a visitor to Australia and that is sufficient for me to make a decision to refuse you entry to Australia."
He then gave a brief explanation of his understanding of "work" for immigration purposes explaining that the "no work without permission" condition which applies to visitors and tourists means, in effect, that during their temporary stay in Australia they are prohibited from performing paid or unpaid work without the permission of an authorised person. He then said words to the following effect:
"In view of your admissions in relation to helping your sister, I am going to refuse you entry into Australia. The consequences of this are that you will not be allowed to walk about freely and, as the aircraft that brought you to Australia has already departed, I will have to place you in custody. You have been refused entry. I will be completing some forms to formalise this."
He then asked the applicant if he had anything to say. A conversation then took place in words to the following effect:
Applicant: "I will accept the decision but I want my sister to have those papers."
the applicant indicated the recipes and menus.
Second respondent: "You have the right to contact a consular representative and/or a legal representative."
Applicant: "I want to contact a consular representative and my sister." The second respondent then said to the interpreter: "Does he understand everything?"
The interpreter said: "Yes."
The second respondent then asked the interpreter to tell the applicant that he would arrange for contact with the local consular person and his sister. The interpreter translated and then hung up.
The respondents also relied upon the affidavit evidence of the telephone interpreter (Ms Consuelo Stewart) who made handwritten notes in English during the course of the two conversations. A photocopy of those notes is exhibited to her first affidavit.
Although the second respondent was not cross-examined on his affidavit, it is clear that his recounting of the conversations is based upon his memory and purports only to state the effect of what was said. There is no suggestion that the second respondent made any contemporaneous notes from which he has since refreshed his memory. In these circumstances I regard the notes made by the interpreter as a more satisfactory record of the substance of the conversations and for this reason I set out below a transcription of those notes:
Fernando Montero Sun. 10/3/91 James --- 7.36 James: May not allow F to enter Australia; has some papers/recipes. Ask F his purpose of coming to Aus.
Fer.: To visit mother and sister, Tessie. Visit is only 2-6 mos. Sister left for Aus. in 1980; Mother - 1982. (Fer.) left 1980 for Saudi Arabia.
James: If purpose is visit, why brought these recipes/menus? He was a cook/chef in Saudi - qualification. If sister sells food in market in Darwin, will he do the cooking? F: I will only help sister prepare food at home. Recipes only evidence of having been a cook in Saudi. James: What if sister gave money for helping? What to do w/ money - will he receive it?
F: Receive is as pocket money.
James: Can't do cooking for sister.
F: So, just teach sister.
James: Why visit sister and mother?
F: Lonely in Phil.
James: Why? Ask - has family?
F: 2 children, property, no intention of staying in Aus. James: Why brought papers in respect to his brother who came to Aus. yrs. ago; separated fr. wife.
F: Papers only sent by brother to show his income tax; doesn't know anything else about those papers.
James: Bio-data - Mario Celis.
F: A teacher, wants female penfriend fr. Aus. James: No lies please - intention papers/recipes. F: Cook for sister's needs teach at home.
James: Talk to Territory Director.
Previous statement
* help prepare meals to be sold in market * teach
- employment - against visa - reason - refuse entry - back to Phil. use ticket.
F: If so, leave recipes to sister.
J: Can take recipes back; photocopy recipes. F: Ask to talk to sister.
J: Ask tele. no.
F: 881 783; prob. sister not home at moment. James: Ask want to contact consul rep. or solicitor. F: Yes.
J: If detained, fly on Thurs, plane has left. F: If so, ask help consul rep/solicitor.
The matters which the second respondent says he took into account in reaching his decision were:
1) The applicant's admission that he was a cook by occupation. 2) The presence of menus and recipes in the applicant's baggage. 3) The applicant's stated intention of assisting his sister in the preparation of food for sale at her market stall for which he may receive some payment.
4) That the applicant's visa was issued subject to the mandatory condition that he not work without the permission in writing of the Secretary of the Department of Immigration, Local Government and Ethnic Affairs.
5) That the assistance which the applicant intended to provide to his sister, whether paid or unpaid, would be work contrary to his visa condition.
6) That refusal or failure to comply with a visa condition is a ground for cancellation of the visa.
7) That there were grounds to believe the applicant would fail to comply with the visa condition.
8) That the applicant did not therefore intend to make a genuine visit to Australia in accordance with his visa. 9) That it is the policy of the Department of Immigration, Local Government and Ethnic Affairs that persons not be permitted to enter Australia to perform work which might otherwise be available to an Australian citizen or permanent resident. 10) The difficulty in adequately monitoring the applicant's compliance with his visa during his stay in Australia in light of his stated intention of working at his sister's home, the resources of the Department and the number of overseas entrants present in Australia.
11) That the job references and the documentation in the applicant's possession were not consistent with a person entering Australia for the purpose of visiting close family and were not necessary solely as a means of identification, but could be used for the purpose of seeking employment as a cook. I considered there to be a risk that the applicant would seek such employment. This caused me to further doubt that the applicant was intending a genuine visit to Australia in accordance with his visa and its conditions.
The grounds upon which the applicant seeks a review of the second respondent's decision are:
1. The second respondent erred in law as to the meaning of "work" for the purposes of the Migration Act 1958 and Regulations thereto.
2. The second respondent failed to take into account relevant considerations, namely:
(a) that helping one's family incidentally, including, cooking, for one's sister is a natural and common sense attribute of visiting one's family on a visitor visa;
(b) the domestic and family-oriented nature of the applicant's stated help for his sister;
(c) that on the facts before the second respondent, the applicant was not intending to pursue any business or regular occupation;
(d) that, on the facts before the second respondent, any receipt of money from his sister by the applicant was in the nature of being given incidentally to his visit or as general pocket money and not payment for helping his sister to cook food;
(e) the applicant's stated intention was merely to assist his sister at her home in the preparation of meals or food;
(f) the stated preparedness of the applicant not to cook for his sister once told he could not cook for her.
3. The decision of the second respondent was on the material before him an improper exercise of power of cancellation conferred upon him.
4. The decision of the second respondent was unreasonable in all the circumstances of the case.
5. The second respondent engaged in conduct and/or made a decision which denied the applicant natural justice in the cancellation of his visa at Darwin airport in that having been issued with a tourist (sic, visitor) visa, the applicant had a legitimate or reasonable expectation that he would be entitled to enter Australia in accordance with the terms of the visa and not have it summarily cancelled without an adequate opportunity to make informed submissions, take advice and be informed what "work" meant under the Migration Act and Regulations.
Each of the grounds as stated raise issues upon which an aggrieved person may seek the review of a decision.
The applicant seeks an order that the decision of the second respondent made on 10 March 1991 cancelling the applicant's visa be set aside, and costs.
I will attempt below to canvass in logical sequence the statutory scheme relevant to the present proceedings.
On entering Australia, a non-citizen becomes an illegal entrant unless he or she is the holder of a valid entry permit or the entry is authorised by section 17 (Migration Act s. 14(1)).
(The term "valid entry permit" is defined in s. 4(1) but has no relevance in the facts of this case.)
The holder of an entry visa (not being a statutory visitor) may enter Australia after disembarkation at a proclaimed airport. (The term "entry visa" is defined and it can be assumed that the applicant was the holder of such.) (s. 17).
Where the holder of an entry visa enters Australia pursuant to section 17, the visa has effect, immediately after the holder's entry, for all purposes as if it were an entry permit granted subject to any conditions, and to any limitations as to the time the holder is authorised to remain in Australia, that are specified in the visa (s. 18).
A person arriving in Australia by aircraft who disembarks at a proclaimed airport is deemed to enter Australia when he or she leaves the airport (s. 4(5)(b)).
Regulations may make provision, inter alia, in relation to the granting and refusal of visas with respect to travel to Australia, including the granting of visas subject to conditions or subject to a limitation as to the time the holder is authorised to remain in Australia (s. 23(1)(a)).
The conditions subject to which visas may be granted pursuant to regulations made under paragraph 23(1)(a) include, inter alia, a condition imposing restrictions about the work that may be performed in Australia by the holder, including restrictions on performing
(i) any work;
(ii) work other than specified work; or
(iii) work of a specified kind;
without the permission in writing of the Secretary (s. 23(4)(c)).
A visitor class visa may not be granted unless granted subject to the condition that the holder not perform any work without permission of the Secretary (Regulation 18, Schedule 5, item 3).
The Minister may at any time, in his or her absolute discretion, cancel a valid visa (s. 26).
(The term "valid visa" is defined to mean a visa granted under the Act which has not been cancelled and has not expired or otherwise stopped being in force under the Act or the regulations (s. 4(1)).
The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under the Act (s. 176(1)).
It is common cause that when he disembarked at Darwin airport the applicant was the holder of a valid visitor class visa issued subject to the mandatory condition that he not perform any work in Australia without permission of the Secretary. This restriction was clearly noted on the visa. It is also common cause that in terms of section 26, the second respondent had authority by virtue of a ministerial delegation, in his absolute discretion, to cancel the applicant's visa at any time. There is no question in these proceedings that the second respondent acted otherwise than within the apparent scope of his authority. Nor is there any doubt that the second respondent acted in the manner he did because he believed that if granted entry into Australia the applicant would, without the permission of the Secretary, work in breach of what would be, if granted entry, a condition of his deemed entry permit. I do not understand it to be said that a reasonable and bona fide belief that the visa holder will breach the terms of his entry permit is not an appropriate basis for the cancellation of the visa, but rather the issue here is whether, on the facts available to the second respondent, it was open to him to conclude that the applicant intended to work. If the proper construction of the term "work" as used in s. 23(1)(c) does not encompass the activities in which the applicant said he intended to engage whilst in Australia, it would be fair to say that the second respondent's decision to cancel the visa involved an error of law. And if that can be established the applicant would be entitled to an order that the decision be reviewed.
The first step in resolving this issue is to examine precisely what it was the applicant said he intended to do. The evidence is silent as to the exact nature of the Rapid Creek market at which the applicant's sister conducts a stall, but it is common cause that each Sunday morning at the Rapid Creek shopping centre in suburban Darwin various stalls are set up at which a great variety of goods, including food, may be purchased. Furthermore, it is a feature of this market, as indeed of other similar markets conducted in Darwin, that the various food vending stalls reflect the cosmopolitan population of Darwin and could be expected to sell food of a type typical of the ethnic origin of the stall proprietor. In this case the applicant's sister, being of Filipino origin, could be expected to sell Filipino food.
Although there are numerous similar markets conducted in and around Darwin, not all are conducted throughout the whole of the year. There is no evidence as to when the Rapid Creek market is conducted but it is assumed it would have been held weekly on Sundays during the applicant's stay in Australia. There is no evidence to suggest that the applicant's sister engaged in any other market than at Rapid Creek.
The statement said to have been made by Customs Officer Parkes to the second respondent to the effect that the applicant had said that he was going to work in Australia is evidence neither of the fact that the applicant made such a statement nor of his intention to work in Australia. I allowed the evidence to stand (against the objection of the applicant's counsel) on the basis that it was part of the overall narrative of events which explained the second respondent's subsequent actions.
I turn now to the evidence upon which the second respondent relies as establishing the applicant's intention to work contrary to the condition on which his visa was issued. At the outset it is clear that the second respondent suspected that the applicant intended to work as a cook in Australia by reason of
a) the applicant having given his occupation as cook on his Inward Passenger Card;
b) the applicant having been in possession of references from previous employers and certain recipes and menus; and c) the applicant having said he would help his sister in respect of her market stall.
The respondents do not suggest that the applicant intended to over-stay the period of his visa, nor that he intended working other than with his sister.
As I have already indicated, I regard the notes of the telephone interpreter as the most reliable guide as to what was said between the second respondent and the applicant. These notes reveal the following:
1. When asked the reason for his visit, the applicant said to visit his mother and sister whom he had not seen for many years.
2. After referring to the recipes and menus and to the fact that his sister sells food at a market, the second respondent asked the applicant if he would do the cooking (presumably for the market stall). He replied that he would help his sister prepare food at home. (It is noted that the interpreter's notes show the word "help" is underlined).
3. The second respondent then posited that the sister may give him money for helping and asked what he would do with the money; would he receive it. The applicant replied that he would receive it as pocket money.
(It is not without significance that the second respondent referred to the possible receipt of money for "helping", thus taking up the explanation just given by the applicant).
The notes do not support the second respondent's statement that he said to the applicant:
"Are you going to receive payment for helping your sister out with the cooking?"
and the alleged answer:
"If my sister pays me it will be like pocket money."
It was on the basis of the foregoing exchange that the second respondent formed his opinion that the applicant intended to breach the condition of his visa by working. This is clear from his next statement to the effect that the applicant could not do cooking for his sister.
In his second affidavit the second respondent indicates that his understanding of work which was prohibited as a condition of the applicant's visa was based upon a departmental procedures advice manual in which the following definition appears:
Work: For the purposes of visitor entry, "work" means the undertaking of activity in Australia in a paid or unpaid capacity.
He further says that he was at the time of his decision, aware of the discussion of the meaning of work in the case of Broussard v Minister for Immigration, Local Government and Ethnic Affairs 21 FCR 472 and that "in that case "work" was held to include engaging in one's regular occupation whether paid or unpaid."
I think that if nothing else is certain in this case, it is abundantly clear that the departmental definition of work cannot be taken to be literally correct. The concept of 'the undertaking of activity' is so broad as to include all of the normal adjuncts of daily living. At the best, the definition can only be regarded as valid to the extent that it draws attention to the fact that payment is not a necessary criterion to establish that any particular activity is 'work'.
In Broussard Gummow J had occasion to consider the question of whether the pursuit by a priest of his vocation in his Church amounted to employment. In the facts of that case the priest's temporary entry permit had been granted subject to the condition "employment prohibited without written permission of an authorised officer". There was abundant evidence that the priest had in fact engaged, in a fulltime capacity - albeit without observing regular hours - in his normal priestly functions. He received no salary or wages in the ordinary sense but had his day-to-day needs provided for by the religious order of which he was a member.
After reading a passage from the priest's affidavit which he had admitted into evidence on the footing that it was indicative of the manner in which a priest of the Roman Catholic Church might discharge his functions, Gummow J said (at p 475-6):
In this passage the applicant stresses the irregular hours in which a priest performs his duties and the absence of a wage or salary in the ordinary sense of that term. However, as the definition of "employment" in the Oxford English Dictionary (2nd ed, 1989) shows, the ordinary usage of that term includes a business or an occupation. In my view, the sense of the condition imposed in this case pursuant to s. 6(6) of the Act is that the holder of the temporary entry permit is prohibited, without written permission from an authorised officer, from engaging in employment, not only in the sense of regular employment as a member of the general workforce, involving receipt of a wage or salary, but also in the sense of pursuit of any business or occupation. The pursuit of the vocation of a priest in the applicant's Church would, in my view, properly be regarded as the following of an occupation. Further, in my view, to engage in one's regular occupation is to work, whether or not one's labour is in return for a wage or salary in the ordinary sense. Accordingly, in my view, the decision maker did not fall into error when she gave weight "to the fact that the applicant had worked in Australia without permission".
I do not think that any relevant distinction can be made between the concept of employment as discussed in Broussard and that of work in the present case. In the course of argument counsel for the respondents submitted that "work" has wider connotations than does "employment" although in Broussard the two terms are used as if synonymous. Be that as it may, counsel proffered as a working definition of "work" - "personal exertion not exclusively for domestic, social or recreational purposes."
There is I think some merit in counsel's proposal in that it may provide some guide as to what is not work. Just as the dictum of Gummow J in Broussard indicates that to engage in one's regular occupation is to work, so this definition suggests that activity which is engaged in for purely domestic, social or recreational purposes is not work. Neither approach assists in determining whether a man who gives his occupation as cook and who says he will help his sister prepare food at home for her to sell in her market stall would be engaging in his regular occupation.
There is an enormous range of hypothetical cases that can be put to demonstrate the difficulties involved in this type of case. For example, if a professional musician from overseas were to "busk" in the Smith Street Mall in Darwin (or in any of the other similar places which can be found in cities and towns throughout Australia) he could be said to be engaging in his regular occupation as a musician, but a visiting factory worker doing exactly the same thing would not be. And what of the professional investor who during a visit to his family in Australia buys and sells shares on an Australian stock exchange?
It is beyond the proper function of a judge in a case of this type to attempt to do what Parliament has failed to do, and provide a definition which will be applicable to every case. Indeed, my function is to do no more than to provide an answer appropriate to the special facts of the instant case. And it appears to me that that is how Gummow J approached his task in Broussard. I do not think that His Honour's decision is authority for more than the proposition that a person who engages in the pursuit of his regular business or occupation may be regarded as being engaged in employment and this whether or not he receives any wage or salary in return.
The facts of this case (as known to the second respondent at the time of making his decision) show: the applicant's mother and sister had resided in Australia for upwards of 8 years; the applicant's sister conducted a food stall at a small suburban market for a few hours one day a week; the applicant gave his occupation as cook; he had in his possession some employment references, menus and recipes; he said he would help his sister at home prepare food for her stall but when told he was prohibited from doing that he said he would teach his sister (presumably to cook the recipes that he had with him). There was no suggestion that he would receive payment for helping his sister, but when the proposition was put to him that his sister may give him money, he said he would receive it as pocket money. This latter comment is of course in the context of a visitor who has already produced an affidavit from his sister and her husband undertaking to support the applicant during his stay in Australia.
Without in any way intending to give credibility to the respondent's suggested definition as an exhaustive definition of the term 'work', I think it is fair to say that whatever the applicant may have intended to do for his sister, it was essentially of a domestic and social nature. It was no more than any visitor may do for his host. It cannot be sensibly said that by helping his sister at home by way of showing her how to cook certain special recipes the applicant would be engaging in his regular occupation any more than a visiting motor mechanic could be said to engage in his occupation by helping his host, or indeed a stranger, start his car. In my opinion it was not open to the second respondent on the basis of what he knew about the applicant to reach the conclusion that he intended to engage in his regular occupation.
In my opinion the second respondent's understanding of the concept of work for the purposes of applying the condition attached to the applicant's visa, based as it was on the definition contained in the departmental procedures advice manual and his understanding of the decision in Broussard and his conclusion that the applicant intended to engage in his regular occupation, were both incorrect. Accordingly, the decision to refuse entry and cancel the visa involved an error of law, and should be set aside. The matter should be remitted to the original decision maker to be dealt with according to law.
It is unnecessary to deal in depth with the other grounds upon which the applicant seeks a review of the decision and for this reason I refrain from commenting upon the question of what, if any, restraints apply to the absolute discretion of the Minister (and his delegate) to cancel a visa. It is sufficient to say that where the discretion has been exercised upon an erroneous understanding of the relevant law, and a conclusion of fact that was not open on the material evidence, it has not been properly exercised according to law.
I reserve liberty to the parties to apply on the question of costs and any other orders sought.
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