Islam v Minister for Immigration and Citizenship

THE FEDERAL MAGISTRATES COURT 9 The appellant then applied to the Federal Magistrates Court to have the decision of the Tribunal quashed for jurisdictional error.

10 The two relevant issues before the Federal Magistrate, and re-argued on appeal, were: (1) whether Condition 8104 is breached if a visa holder works more than 20 hours per week in any one week, or whether it is breached only if over a longer period the average of hours per week worked by that person exceeds 20 hours; and (2) whether the reference to a "week" should be taken (as the Federal Magistrate did in this instance) as running from a Thursday to a Wednesday based upon the date of the pay slips, or whether it should be taken as running from a particular day, namely a Sunday to a Saturday in each week or a Monday to a Sunday in each week. On both those issues, the Federal Magistrate on 14 August 2006 determined the issue adversely to the appellant, and so found no jurisdictional error on the part of the Tribunal. 11 As to the first of those two issues, the Federal Magistrate rejected the "averaging" approach of the appellant, that is that the measure of hours worked per week is taken by averaging the total hours worked for the period between the date of issue of the particular visa and the date of its cancellation over the number of weeks in that period. His Honour did not consider the language of Condition 8104 allowed such a construction. 12 As to the second of those issues, the Federal Magistrate concluded that the "week" to which Condition 8104 refers is intended to be a period of up to seven days defined by the visa holder's working week, and that no rigid starting day for the week can be found to have been intended. The starting day is a question of fact for each case. His Honour said: A significant objective of the condition is that the visa holder should be able to regulate his or her working hours so as to conform to the obligation imposed by the visa condition. In my opinion, it is intended that the holder's working week should be a matter apparent to him or her from the terms of his or her employment, or be discoverable from employment practices followed in his or her occupation. If neither of these sources is informative, the normal community working week starting on Monday and including any subsequent week-end overtime should provide the basis for an assessment of compliance.

THE APPEAL 13 This appeal seeks to re-ventilate both of those issues. 14 The issues attract attention to the work-related visa conditions under Sch 8 to the Migration Regulations to which different visas are subject. Schedule 8 contains a large number of visa conditions which may apply to different visas under the Act and the Migration Regulations. Conditions 8101 to 8106 relate to the extent to which a visa holder may work in Australia. Conditions 8107 to 8112 relate to the employer with whom a visa holder may work and the type of work that may be undertaken while in Australia. Schedule 8 also contains conditions regulating study and study performance, public interest and public security, health, and sundry matters. It is Condition 8104 in the context of the work-related conditions which is important in the resolution of this appeal. Conditions 8101 to 8106 provide as follows: 8101 The holder must not engage in work in Australia. 8102 The holder must not engage in work in Australia (other than in relation to the holder's course of study or training). 8103 The holder must not receive salary in Australia without the permission in writing of the Secretary. 8104 The holder must not engage in work for more than 20 hours a week while the holder is in Australia. 8105 (1) Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder's course of study or training is in session. (2) Subclause (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students. 8106 The holder must engage in work in Australia only if the work is relevant to the conduct of the business, or in performance of the tasks, specified in the visa application.

15 The appellant's first contention, the so-called averaging contention, can be shortly addressed. The appellant argued that the words in Condition 8104 "must not engage in work for more than 20 hours a week while the visa holder is in Australia" (emphasis added) requires the averaging of hours worked over the period between the grant of the visa (or more accurately the date of arrival in Australia) and the date on which the inquiry about compliance was made. 16 We reject that contention, even though (as counsel for the appellant pointed out) Condition 8105 refers to working more than 20 hours per week "during any week" while a course of study is in session. We do so primarily because it would produce irrational consequences. A visa holder in Australia who was subject to that condition, if working more than 20 hours for (say) the first four weeks of the visa, would contravene the condition if then subject to inquiry, but may not have done so if that person did not work for the next few weeks, depending on the total hours worked. However, contravention of the condition is not intended to be dependent upon the time of the inquiry. The condition and its breach are self-defining. The contention, if accepted, could expose the visa holder to being in breach of the condition from time to time, and not being in breach of the condition from time to time. The officers of the first respondent would have no firm basis of knowing, without extensive inquiry, whether or when the condition was breached. There is no apparent reason from Condition 8104 why the commencement of the inquiry as to compliance should close off the period for averaging, as distinct from the time of cancellation. Nor is there any apparent reason why, if the close of the averaging period is the time of the cancellation decision, the visa holder could not immediately stop working and by the time of the delegate's decision, or even a later decision of the Tribunal, by averaging would demonstrate no breach. Such uncertainty was not intended. 17 The temporal clause introduced by the conjunctive "while" is readily explained, consistent with the view we hold about the meaning of Condition 8104, by the appellant's visa permitting the appellant to leave and re-enter Australia during the currency of the visa. So too is the contrast which the appellant drew with Condition 8105: in the case of a visa subject to Condition 8104, a person such as the appellant is restricted to no more than 20 hours work a week in that person's capacity as a dependent of the primary holder of a Student visa; the primary holder of a Student visa is subject to a similar restriction but only whilst the course of study is in session and the words "in any week" focus attention on that temporal limitation on the operation of the condition. It is intended to differentiate between the position of the student, and the position of the dependent. 18 Accordingly, the appellant's first contention must fail. In our view, Condition 8104 obliges the visa holder not to work for more than 20 hours in any week while the visa holder is in Australia. How the expression "week" is to be applied is the subject of the second contention. 19 The appellant's second contention was that Condition 8104 requires the assessment of a working week commencing on a Monday (after midnight on a Sunday) and concluding at midnight on a Sunday. As the only evidence was the three pay slips referred to, he argued that the evidence did not show that within a particular working week (which the appellant says were potentially the weeks commencing on 22 December 2003, 29 December 2003 and 5 January 2004) he had in fact worked for more than 20 hours. As a matter of arithmetic that is a possibility. The pay slip for the period to 25 December 2003 included only three or four of the seven days of the week commencing on Monday 22 December 2003, so it would not be possible to say from the pay slip of 25 December 2003 that the week commencing 22 December 2003 included any particular number of hours worked within the 26.25 hours. The pay slip of 8 January 2004 similarly could not be said to show any particular number of hours worked in respect of the week commencing on 5 January 2004. It is also possible to manipulate the hours within the period covered by those three pay slips so that the hours worked in the week commencing 29 December 2003 did not exceed 20 hours. There is no information in the pay slips to show how many hours were worked on a particular day or days. The first respondent did not contest that analysis. 20 The first respondent sought to tender and read an affidavit exhibiting a sheet of paper which the appellant is said to have produced when seeking an extension of time within which to appeal from the decision of the Federal Magistrates Court, and which sets out the hours worked on each day. The purpose of the tender was to show that, if the Court concluded that the term "week" in Condition 8104 refers to the period from Sunday (after midnight on Saturday) to midnight on the following Saturday, then it would be futile to remit the matter to the Tribunal on this ground as the document showed the appellant had worked in excess of 20 hours for the seven day period from Sunday 28 December to Saturday 3 January 2004. In view of our conclusion on this issue, that affidavit does not have the significance which it might otherwise have had. We do not need to receive it. We would, in any event, have been unlikely to receive it because the first respondent was not seeking to prove as a fact that which (it was contended) the appellant had asserted, but merely that the appellant had asserted those things. The first respondent did not want the Court to accept for the purposes of this proceeding generally (including any review by the Tribunal on remittal) that the facts said to be asserted by the applicant were accurate. Hence, the affidavit if received on that limited basis would not have demonstrated the futility of the review being remitted to the Tribunal if the Court were to make such an order. 21 Justice Dixon said in Dunlop Perdriau Rubber Co Ltd v Federated Rubber Workers' Union of Australia (1931) 46 CLR 329 at 341, that the word "week" can have a variety of meanings depending on its context. Consequently, in considering Condition 8104, regard should be had to the context and purpose of Condition 8104 in the Migration Regulations, and of the Migration Regulations and of the Act itself: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382. 22 In our view, the reference to "week" in Condition 8104 is a reference to the period Monday (from midnight on Sunday) to Sunday midnight. There are a number of reasons why we think that word refers to a fixed period, rather than to a flexible period fixed by reference to the days and hours worked by a particular visa holder, and why it refers to that particular seven day period. 23 In the first place, it is desirable that the word "work" be given a consistent meaning with its use in the other conditions of Sch 8 to the Migration Regulations, and in the Migration Regulations themselves, unless there is good reason to conclude otherwise: Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618; Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 per Moore J at [14], 529 and per Weinberg J at [72], 539. In Minister for Immigration and Multicultural and Indigenous Affairs v Alam (2005) 145 FCR 345, the Full Court (Wilcox, Stone and Allsop JJ) concluded that the natural meaning of "week" in Condition 8105 is a seven day period commencing, depending on its context, on either Sunday or Monday rather than any period of seven consecutive days. Condition 8105 was tied to the period when the educational provider's session commenced. It was not necessary to decide whether that was a Sunday or a Monday (per Allsop J at [55], 357). There is no apparent reason why the word should have a different meaning in Condition 8104 than in Condition 8105, especially in the context of those conditions each applying to Student (Temporary) (Class TU) Subclass 572 visas depending only upon the particular criterion for eligibility of the visa holder under cl 572 of Sch 2 to the Migration Regulations. 24 The need for certainty in the application of Condition 8104 is self-evident. This case provides an illustration of the consequences of its contravention. An individual visa holder (and indeed the delegates of the first respondent) should be able to know how Condition 8104 will operate upon particular circumstances. And an individual visa holder should be able to organise that person's working commitments without exposure to the possible vagaries of variable hours of work, variable days of work, and in some instances more than one employer. That need for certainty is apparent from the purpose and context not only of visas such as the appellant's visa. There are many subclasses of visas under the Regulations to which one or more of the Conditions 8101 to 8106 of Sch 8 apply. They range from Bridging Visas, Retirement visas, Working Holiday visas, Humanitarian visas, Business visas and Tourist visas. In certain circumstances, Condition 8104 may be a condition of Subclass 010 Bridging A, Subclass 020 Bridging B, Subclass 051 Bridging (Protection Visa Applicant), Subclass 405 Investor Retirement, Subclass 410 Retirement and Subclass 449 Humanitarian Stay (Temporary) visas as well as certain subclasses of the Student (Temporary) visas. That list is not necessarily comprehensive. Given that range of applications of the condition, the need for a visa holder at the time the visa is granted to understand clearly the operation of a condition such as Condition 8104 is self-evident, and would clearly have been recognised by the drafter of Sch 8 to the Migration Regulations. 25 In addition, the selection of some other period determined by the particular employer's pay period also exposes a further uncertainty. There may be one or more employers, as is not uncommon in the case of casual work. Pay periods are not necessarily selected by an employer on a weekly basis; sometimes they are piecemeal, sometimes sessional, and sometimes fortnightly or monthly. An interpretation of the word "week" which leaves scope for such areas of grey, having regard to the purpose of conditions such as Condition 8104 imposed on a visa holder, would not have been intended. 26 The Act regulates the entry and presence of non-citizens into Australia. It does so by the system of visas defining when persons may enter and remain in Australia, and the conditions upon which they may do so: ss 4, 28-31 and 40-41 of the Act. The imposition of Conditions as provided for under s 41 is an integral part of the legislative scheme, and so conditions should be construed in a way which offers clarity and certainty both from the viewpoint of the visa holder and from the viewpoint of the delegates of the first respondent. The conditions in Sch 8, including Condition 8104, should be so construed. In our view, the construction which serves that purpose, and meets the legislative and regulatory context, is that "week" in Condition 8104 means a period of seven consecutive days commencing on Monday (after midnight on Sunday) and ending on Saturday midnight. There should be no administrative difficulty in applying that meaning; it simply requires access to the daily working records of the relevant employer or employers of the visa holder who is suspected of contravening the condition. 27 We have identified the week as commencing on Monday, because that is the ordinary and current meaning of that word in a work context: cf per Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 514; and per Allsop J in Alam (2005) 145 FCR at [55], 357. We note that the conclusion we have reached that Condition 8104 provides for a seven day period commencing on a Monday also appears to accord with the definition of "working day" in s 5 of the Act, as it excludes from that term a Saturday, a Sunday or a public holiday in the place to which it is being applied.

CONCLUSION 28 For those reasons, the appeal should be allowed. We would set aside the orders of the Federal Magistrate, and quash the decision of the Tribunal. The Tribunal should rehear and determine the appellant's review application.

29 The costs of this appeal, and of the proceedings before the Federal Magistrate, should be paid by the first respondent to the appellant. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Lander & Siopis.

Counsel for the Appellant: Mr R Lancaster with Mr C Bova appeared pro bono