Yan v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1404

FEDERAL COURT OF AUSTRALIA

Yan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1404

MIGRATION – judicial review – visa – cancellation of visa – long-stay temporary business visa – visa granted on basis of occupation as plant manager – condition of visa that holder must not change employer or occupation in Australia without the permission of the Secretary – application for review by Migration Review Tribunal – cancellation decision affirmed – application for review of Migration Review Tribunal decision – application disregarding 2001 amendments and privative clause – application considered – no reviewable ground even assuming invalidity of s 474 – application dismissed.

Migration Act 1958 (Cth) s 116
Judiciary Act 1903 (Cth) s 39B

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 cited

ZHANG YAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W117 OF 2002

FRENCH J
11 NOVEMBER 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W117 OF 2002

BETWEEN:	ZHANG YAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	11 NOVEMBER 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the 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
WESTERN AUSTRALIA DISTRICT REGISTRY	W117 OF 2002

BETWEEN:	ZHANG YAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH J
DATE:	11 NOVEMBER 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1. Zhang Yan, a Chinese national, was granted a long-stay temporary business visa on 16 June 2000.  The visa was granted on the basis that he would be working as a plant manager for a manufacturer of vegetable products, David Lin Enterprises Pty Ltd.  The visa was cancelled on 14 September 2001 by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.  It was cancelled on the basis that he was not working as a plant manager and, contrary to a condition on the visa, had not obtained permission from the Secretary of the Department to undertake a different occupation.  Mr Yan’s application to the Migration Review Tribunal (“the Tribunal”) for review of the cancellation decision was unsuccessful.  He now seeks review of the Tribunal’s decision before this Court.

2. The application for review has been formulated on the basis of the Migration Act 1958 (Cth) as it stood prior to the enactment of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which came into effect on 2 October 2001. I have nevertheless proceeded to hear the application in order to determine whether there was any ground for review of the decision before proceeding to consider whether the amendment would preclude review. I have concluded that there is no such ground under the Act as it stood prior to the amendment. More importantly, there is no such ground disclosed which would attract the intervention of the Court in the exercise of its jurisdiction under s 39B of the Judiciary Act 1903 (Cth) – the present source of its jurisdiction in such cases – even assuming that the privative clause introduced by the amendments, s 474, is not valid. The validity of that section has been challenged in the High Court which has reserved judgment on the question.

   Application for Long-Stay Temporary Business Visa

3. Zhang Yan, a national of China, was born on 20 March 1967.  On 20 April 2000, he applied for a Long-Stay Temporary Business Visa, class UC, subclass 457, to stay in Australia for up to four years.  In his application he stated that he was entering Australia as a person sponsored by an Australian business.  His qualifications, as set out in his application, included a Trade Certificate in Food Processing – Senior, from the Ministry of Labour of the People's Republic of China, and training during the time he was employed by Li Hing Food Products which developed his specific skills in connection with a plant used in the manufacture of potato starch.  Photos of the plant and relevant machine information were attached.  Under the heading “Special Skills” his application said:

   “I am skilled in the manufacture of potato starch.  This process requires washing, drying and pulping of the raw material before starch residues can be separated.”

   His employment over the previous three years had been with Li Hing Food Products Co Ltd in Beijing.  The sponsor for the visa was David Lin Enterprises Pty Ltd, which by a letter dated 23 May 2000 stated:

   “Mr Yan Zhang has been nominated by this company to act as its Plant Manager for the manufacturing of vegetable products at Jandakot, south of Perth. 

   In the initial phase of his proposed employment contract, he will be sponsored to undertake part‑time English language studies for the purpose of enhancing his ability to provide skills transfer.

   This company will fully sponsor the costs of the training.”

4. A further description of his skills and the nature of his tasks was set out in a letter dated 15 June 2000 from his migration agent to the Department of Immigration and Multicultural Affairs.  That letter stated inter alia:

   1.  Mr Zhang has the knowledge, technical skills and experience to be able to install, operate and service all machinery to be imported by DLE.  Documents already presented demonstrate that he is qualified to do so.  There were no other applicants for the position who could provide records of having been involved with the particular machinery to be used; nor with the processing of raw vegetable products into refined, multi-grade starches. 

   Therefore, the sponsor and I propose that r 457.223(2)(d)(i) is satisfied.  The applicant does have the skills and experience necessary to meet duty requirements.

   2. Naturally Mr Zhang will be heavily involved in the planning, installation and testing phases of the project.  During this time it is envisaged the company will recruit persons with a view to training at least one as a future plant operator.  These persons will perform work as directed by Mr Zhang through the translation and interpretation of Mr David Lin.

   .

   .

   .

   4.It is expected that ‘lead-in’ time, ie before actual production of potato starch commences, will run to approximately 6 months from arrival of imported machinery.  Mr Lin has foreseen the need for his nominee to be given an opportunity to improve his English skills before and during that period, to enable him to integrate with the wider Australian community.  Mr Zhang has been registered to attend a part‑time course at Alexander Language School.”

5. On 16 June 2000, the applicant was granted a visa subject to a condition stated thus:

   “Visa conditions:        8107 The holder must not change employer or occupation in Australia without the permission of the Secretary.”

   The Cancellation of the Visa

6. On 6 August 2001, a notice of intention to cancel the visa under s 116 of the Migration Act was sent to Mr Yan. That notice specified, among other things, that his visa could be cancelled under s 116(1)(b) of the Migration Act which sets up as a condition of cancellation that the holder has not complied with a condition of the visa.  Reference was then made to condition 8107, that the holder must not change employer or occupation in Australia without permission of the Secretary.  The notice then stated:

   “Evidence held by the department indicates that you are working for David Lin Enterprises Pty Ltd as a truck driver.  No evidence exists on file that permission for you to work in this capacity has been sought from the Secretary or granted.”

   A submission was then made on behalf of the applicant in relation to the notice and in particular the alleged breach of condition 8107.  In this connection it was said:

   “Mr Zhang agrees that it may appear he has not complied with a condition of his visa, by working alternatively as a truck driver instead of as a starch manufacturer, the position for which he was sponsored.  He acknowledges that both he and his sponsor had erred by not seeking permission from the Secretary to change the occupation. 

   Both parties request the DIMA take into consideration the fact that there were reasonable delays preventing Mr Zhang from working in the nominated occupation ie reasons as set out at 1 above.  They also draw attention to the fact that Mr Zhang has continued to work for his approved sponsor, and, that this has been in a number of roles as a means to him becoming more familiar with the local working environment.  Mr Zhang not only drove the sponsor's truck for a limited period each week, but he has also driven a fork-lift, engaged in some administrative work and generally become more familiar with the company's broader operations. This period of delay has been regarded by ‘David Lin Enterprises Pty Ltd’ as presenting an ideal opportunity to implement a preparation phase prior to Mr Zhang's deployment to manufacture potato starch.  The visa holder and the sponsor ask the DIMA not to consider this a serious breach of visa conditions, given the circumstances that have existed during the past 12 months.”

7. On 14 September 2001, a delegate of the Minister made a decision cancelling the applicant's visa. The reason upon which he based the decision to cancel the visa was the breach of condition 8107. He relied in that connection upon s 116(1)(b) of the Act. The decision-maker was not satisfied as to other grounds which had been relied upon in the notice.

   Application for Review of the Cancellation Decision

8. On 20 September 2001, the applicant sought review of the delegate's decision in the Tribunal.  In his application for review he said, among other things:

   “I accept that inadvertently I did not comply with that condition; I did not obtain the permission of the Secretary of the DIMA to engage in alternative, albeit related activities, in the employ of my sponsor.

   I regard this to be a very harsh decision and I believe the DIMA is being unreasonable. 

   At all times since being granted my visa I have been in the employment of my approved sponsor.  At no time has any other party employed me.  Furthermore, the duties I have performed have been entirely relevant to those of a Plant Manager and they have provided me with invaluable local experiences prior to my deployment in that role.”

   In a later written submission, however, it was said on behalf of the applicant that he had not changed occupation.  This appears at p 211 of the court book.  He said:

   “I have not changed employer nor occupation since being granted my visa under company sponsorship.  Therefore, it is wrong to claim I have breached the conditions of my visa.

   I have at all times been employed by David Lin Enterprises Pty Ltd (DLE), in the occupation Plant Manager of the company's intended potato starch making plant.

   Since being approved as a sponsor and nominator, DLE has encountered unexpected delays in the implementation of the intended business activity.

   (i)There was delay in the purchase of machinery from PR China (PRC) to manufacture starch.

   (ii) A second nominee under sponsorship was diagnosed with serious a medical condition, thus holding up his visa application. (sic)

   These are valid reasons for my sponsor's intended activities being delayed.

   Since taking up my appointment I have been paid the usual salary according to the nominated occupation Plant Manager.  If my sponsor had employed me to perform a less specialized role, it would have paid me less. 

   Since taking up my position I have engaged in activities that are entirely relevant to a Plant Manager:

   -I have learned English language skills with which to communicate with suppliers of raw materials, with other employees of my sponsor, and with people in the wider Australian community.

   - I have learned how to drive vehicles which will be used to service the starch making plant, and I have obtained appropriate licensing where necessary.

   - I have consolidated my knowledge and understanding of the broader activities of my employer.

   - I have been equally involved in the detailed planning of the plant's operations which will use fully imported machinery from PR China.

   On some occasions since taking up my appointment I have accompanied my sponsor, Mr David Lin, while he has been distributing potatoes in the Perth area.  On all of these occasions I have travelled with him as the Plant Manager of DLE's starch manufacturing business. The purpose has been to help the development of my English skills, to learn about Australian business procedures, and occasionally to practice using common industry vehicles.  On these occasions I have helped out wherever I can, as any employee would, and taken instructions from Mr Lin, my employer.”

   The Decision of the Migration Review Tribunal

9. The Tribunal decided, notwithstanding Mr Zhang's submissions, that it would affirm the decision under review to cancel the visa which was held by him. 

10. The Tribunal reviewed the evidence in the case.  It is not necessary to repeat those elements of the background already covered.  It found that the applicant’s  sponsor, David Lin Enterprises, distributes potatoes and onions to retailers in Perth.  The sponsor employed the applicant as plant manager of its intended potato processing plant.  It intends importing a machine from China for the purpose of converting potatoes to starch for use in cooking.  The Tribunal was told that finance is in place to purchase the machine, which costs over $A200,000.  The sponsor said it had paid a deposit of about $A25,000 at the end of February 2001.  A warehouse had been located to house it.   The sponsor currently uses the warehouse to store potatoes and onions.  The Tribunal was told that the applicant was a key person in the project as he had used the same machine to produce starch in China and had specialised knowledge of how it operated.  He had worked for the sponsor since the grant of his visa on 16 June 2000 and since that time, according to the applicant, his main task had been to arrange the order of the machine from China.  He did this by speaking to suppliers in China over the telephone.   He telephoned suppliers regularly over the period between July 2000 and September 2001.

11. The applicant was also said to have drafted a few plans for the machine for the sponsor and to have explained to him the nature and function of its various parts.  According to the applicant's evidence to the Tribunal, he had been preparing for the arrival of the machine since June 2000.   He drove the truck to suppliers and a forklift in the warehouse on an occasional basis only. 

12. A departmental officer attended the business premises occupied by the sponsor on 26 February 2001 and noted that more investigation of the situation was needed. The applicant appeared to be labouring, carrying bags of potatoes, rather than performing the duties of a plant manager.  The sponsor attended the department for an interview on 27 March 2001 and said the applicant was paid $36,180 during the financial year ended 30 June 2001.

13. The Tribunal having reviewed the preceding evidence, referred to the issue of the notice of intention to cancel the visa on 6 August, the subsequent decision to cancel the visa and the statements made in the decision record by the delegate, to which it is not necessary to refer here. In setting out its findings, the Tribunal referred first to s 116 of the Act and in particular to s 116(1)(b), which states:

    “(1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
    .
    .
    .

    (b)its holder has not complied with a condition of the visa.” 

    The Tribunal noted that the decision to cancel the visa in this case was a discretionary matter, there being no prescribed circumstances attracting mandatory cancellation under s116(3).

14. The Tribunal referred to departmental policy guidelines designated MSI340 which identified, inter alia, as primary considerations for the cancellation of a temporary visa:

    1. the purpose of the visa holder's travel to and stay in Australia;

    2. the extent of non-compliance with any conditions, subject to which the visa is granted;

    3. the degree of hardship which may be caused to the visa holder and any family members;

    4. the circumstances in which the ground for cancellation arose;

    5.the person's behaviour in relation to the department now and on previous occasions.

    The Tribunal observed that the MSI was not binding upon it but given that there was no cogent reason for departing from it, the Tribunal would apply it in this instance. 

15. The Tribunal identified as the issue for review whether s116(1)(b) of the Act was satisfied; that is,

    1. had the applicant changed occupation without the written permission of the Secretary?; and

    2.if so, was it appropriate that the visa be cancelled; that is to say, was that the correct or preferable decision in all the relevant circumstances of the case?

16. In dealing with the first issue, which is the critical issue in this application, the Tribunal found that the applicant had admitted, in at least one document that was submitted to the Tribunal by his agent, that he accepted that inadvertently he did not comply with the condition.  He had not obtained the permission of the Secretary to engage in alternative, albeit related, activities in the employ of his sponsor.   The Tribunal noted that at the hearing, the applicant had "… resiled somewhat from this earlier written statement and said that his migration agent must have misunderstood him".  It referred to his claim that he was engaged full-time as plant manager for the sponsor from June 2000 until September 2001 and the fact that claim was maintained, notwithstanding that the machinery for the starch plant was yet to be paid for and delivered. 

17. The Tribunal accepted that, during the 15-month period since he arrived in Australia, the applicant was involved in both the planning of the starch plant and discussions with the sponsor in relation to it.  However, based on the information provided to the department, the Tribunal found the applicant to have been involved mainly with assisting the sponsor with tasks that were not directly related to the planning for the starch plant.  His specialised skills relating to the setting up and operation of the plant did not appear to have been fully utilised.

18. The Tribunal said that it was faced with two conflicting versions of what work the applicant was doing on a daily basis for the sponsor.  On the one hand, there was departmental evidence together with admissions made by the applicant in his earlier written statements to the effect that he was doing work other than that of a starch plant manager.  Various references provided by customers of the sponsor also referred to the applicant accompanying the sponsor on his deliveries and checking and taking new orders for potatoes.  On the other hand, there was the applicant's evidence to the Tribunal that over the 15-month period he worked almost entirely on planning the starch project and that he drove a forklift moving potatoes for 20 minutes a week at most.

19. In paragraph 42 of its reasons the Tribunal said:

    “The Tribunal has considered all of the available evidence and on balance it gives more weight to the evidence of the Department and the review applicant's earlier written statements over the review applicant's subsequent evidence at the hearing.  The reason for this preference is that the statements made by the review applicant to the Tribunal appear to be self-serving in nature and accordingly should be given little weight by the Tribunal.”

    And at paragraph 43:

    “Accordingly, the Tribunal finds that the review applicant has not complied with a condition of the visa, namely that he has changed occupation from a starch plant manager to a labourer without the permission of the Secretary.  As a result the Tribunal finds that section 116(1)(b) of the Act is satisfied and that a ground of cancellation exists.”

1. The Tribunal then turned to consider discretionary considerations including the purpose of the travel to and stay in Australia, and the extent of non-compliance with any conditions.  Under that heading the Tribunal said that it might be acceptable for the applicant to be introduced to various facets of the business over a very short period of time.  However, it was doubtful that a highly specialised plant manager required extensive exposure to areas ancillary to the job for which his visa was granted.  Although the breach could not be said to be among the worst of its kind, working as a general labourer was a significant departure from being employed as the plant manager of a highly specialised machine.

2. The Tribunal referred to the degree of hardship which might be caused to the visa holder and any family  members and noted that at the hearing the applicant had said he would not suffer economic or emotional hardship if the visa were cancelled.  His wife was in Beijing.  It then referred to the circumstances in which the ground for cancellation arose, they being out of an investigation following an initial inquiry from the Beijing post of the department.

3. The Tribunal found that the applicant had complied with his previous visas and had been co-operative with the department throughout.  It also referred to a number of reasons provided by the sponsor why the starch plant was yet to be operational, some 21 months after the visa was granted.  They included: 

   1.That the marketing person to the starch project had yet to be granted a visa to enter Australia;

   2.The increased costs of the machine as a result of the devaluation of the Australian dollar;

   3.Bureaucratic delays in China and the cancellation of the review applicant's visa in September 2001.

   The sponsor told the Tribunal that it still plans to import the machine from China but had told  suppliers it was in no hurry to take delivery. The sponsor would go ahead with the project if the applicant were granted a visa.  The Tribunal having considered each of the above factors, and particularly the purpose for which the visa was granted and the extent of non-compliance, on balance found it appropriate that the visa be cancelled and that it was the correct and preferable decision in all the relevant circumstances of the case.

   The Application for Review of the Tribunal’s Decision

4. The Tribunal having so found, the applicant filed on 19 April 2002 an application for review of the decision of the Tribunal.  The grounds of the application were as follows, without reference to particulars: 

   “2. That the decision was an improper exercise of the power conferred by the Act or Regulations, as amended.

   3.By virtue of the Respondent's improper exercise of power, the Respondent failed to consider the weight of evidence supporting the Applicant's application, and failed to consider the merits of the case.

   4. That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the person who made the decision.

   5. It is submitted that it is consistent with his duties as Plant Manager that the Applicant performed, at times, administrative works and labour works.

   6. It is submitted that the Respondent misinterpreted and misconstrued and misapplied condition 8107 of the Regulations in these circumstances.”

   The relief claimed was:

   “1.An order setting aside the Decision with effect from the date of the order or such earlier date as the Court specifies; and

   2. In the alternative, an order that the matter be remitted to Migration Review Tribunal to be reviewed and decided again, with the taking of further evidence by the Tribunal from the Applicant and as otherwise directed by the Court.

   3.In the alternative, an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit.”

5. The application initially named both the Minister for Immigration and Multicultural and Indigenous Affairs and the Migration Review Tribunal as respondents but was discontinued as against the Tribunal.  The application on the face of it overlooked the very significant amendments that were made to the Migration Act by the Migration Legislation Amendment (Judicial Review) Act which came into effect on 2 October 2001 repealing the former Part 8 of the Act, reinstating the jurisdiction of the Federal Court under s 39B of the Judiciary Act and introducing the privative clause, s 474.  That section has, since that time, been the subject of substantial judicial consideration including consideration by a bench of five members of the Federal Court sitting together in NAAV v Minister for Immigration and Multicultural Affairs (2002) 193 ALR 449.

6. In the NAAV case, s 474 was found to be a valid law under the Commonwealth Constitution when construed in accordance with the doctrine in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. Since the hearing of that appeal and its determination, there has been a challenge in the High Court to the constitutional validity of s 474, which challenge presently stands reserved. As Gaudron J was part of the bench which heard that challenge, it is almost certain that the decision will be handed down before her retirement from the bench early next year. In the meantime, special leave applications have been filed in relation to three of the five appeals which were heard by the Full Court in the NAAV matter.

7. Counsel for the applicant appears to have been unaware of the introduction of s 474 until he received a copy of the respondent's submissions which he did not see until this morning.  The respondent admittedly filed those submissions later than had been directed, which is two working days prior to the hearing of the application.  That, of course, does not excuse the fact that counsel for the applicant has failed to address the amendments which were introduced in October last year.  Counsel initially suggested that I should adjourn the application pending the outcome of the constitutional challenge to s 474 in the High Court.  In the event, I decided to proceed with the hearing of the application to determine whether there was any error by the Tribunal as asserted on the part of the applicant. If there were a reviewable error of law able to be identified, on the assumption that s 474 were not valid, then it might be appropriate to consider an adjournment or reserving judgment until the outcome of the constitutional challenge to the section in the High Court.

   Contentions and Conclusions

8. In the event I have concluded, on the basis of the submissions put to me by the applicant and respondent, that there is no reviewable error disclosed (on the assumption that s 474 is assumed to be invalid) and that the operation of s 474 is in that respect academic.  It is not necessary to further delay the resolution of this matter pending the outcome of the challenge to s 474. 

9. It is sufficient perhaps to refer to the applicant's submissions as set out in the written outline which fairly closely, I think, follows the statement of grounds in the application itself.  It is asserted by the applicant that the decision of the Tribunal was an improper exercise of power in that the Tribunal exercised discretionary power without proper regard to the merits of the applicant's case.  The Tribunal, it is said, did not place any weight and/or failed to consider the weight of the evidence with respect to the applicant's overall duties as plant manager.  It was submitted that the applicant’s duties as plant manager encompassed and included at times administrative duties and other labour works including driving forklifts.  The decision was said to be an improper exercise of power as the Tribunal failed to consider or did not place sufficient weight on the practical aspects and practical business efficacies entailed in the applicant's duties in that:

   1.At times the applicant's duties included administrative duties and labour work such as driving forklifts; and

   2.The mere fact that the applicant at times undertook administrative duties and labour work such as driving forklifts, did not mean or preclude him from being a plant manager or from acting in his capacity as plant manager or that the applicant had changed his occupation to that of a truck driver contrary to condition 8107 of the regulations.

   It was said that by virtue of the improper exercise of power the Tribunal had failed to consider the weight of the evidence supporting the applicant's application and failed to consider the merits of his case. 

10. The second ground asserted error of law, as already indicated.  The particulars set out in the outline of submissions asserted that the tribunal erred in that it did not properly direct itself at law as to the interpretation, meaning and construction of condition 8107 which stated inter alia:

    “The holder must not change employer or occupation in Australia without permission in writing of the Secretary.” 

    The submission referred to the applicant's claim that he was engaged from June 2000 until September 2001 as a plant manager for the sponsor to arrange for purchase of a starch plant and subsequent setting up operation and planning of the plant.  It referred to the statement by the Tribunal in the decision that the applicant was involved mainly with assisting the sponsor with tasks not directly related to the planning for the starch plant.  It was submitted that despite the fact that the applicant had at times performed administrative works and labour works such as the tasks referred to by the Tribunal, the applicant still maintained and did not change his occupation or employer contrary to condition 8107.

11. It was submitted that the Tribunal erred in law in deeming the applicant to have changed his occupation by virtue of the fact that he "…did not completely dedicate every moment to a particular task, more particularly the specialised task referred to earlier … in mainly planning for the starch plant, and that the Applicant had at times performed other tasks such as administrative works and labour works such as driving fork-lifts."  It was submitted it was not inconsistent with the applicant's occupation as plant manager to at times do administrative work and labour work such as driving forklifts.  That, it was said, was particularly so given that the starch plant had yet to arrive, and the applicant was therefore restricted, insofar as the work relating to the starch plant was concerned, to setting up and planning for the starch plant and ensuring its arrival rather than operating the starch plant.  The applicant was said to have been familiarising himself with the sponsor's overall business activities and the structure of the sponsor's business from the bottom up while awaiting the plant.  The submissions continued in that vein. 

12. As may be seen, what the submissions did was essentially to take issue with the Tribunal's evaluation of the facts, which were largely not in dispute, and its characterisation of the applicant's activities as a change in occupation.  Having regard to the matters of fact to which the Tribunal adverted in its reasons, that evaluation was plainly open to it.  Indeed on two occasions, the first in response to the notice of cancellation and the second by way of submission to the Tribunal, the applicant's representative himself had indicated that he had changed occupation.  The vice here is not to be found in the fact of changing occupation.  It is to be found in changing occupation without permission in writing of the Secretary. No doubt the practical exigencies to which the applicant's counsel has referred in relation to what he was said to have been doing were matters which would have supported an application for permission to change occupation.

13. On the material which has been submitted, and having regard to the findings of fact made by the Tribunal, there does not appear to have been any error of law which would constitute an error of law, nor any improper exercise of the power conferred upon the tribunal. In the circumstances there is no point in awaiting the outcome of the constitutional challenge to the privative clause because in any event there is no basis upon which the application could be reviewed in accordance with either the previous Part 8 or the general jurisdiction conferred upon the Federal Court by s 39B of the Judiciary Act 1903 (Cth). For these reasons the application will be dismissed. The applicant will pay the respondent's costs of the application.

I certify that the preceding thirty two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:            31 March 2003

Counsel for the Applicant:	Mr J Chong
Solicitor for the Applicant:	James Chong & Co
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 November 2002
Date of Judgment:	11 November 2002