Islam v Minister for Immigration & Anor [2006] FMCA 1229

Conditions on visas

(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

...

(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:

(i) any work; or

(ii) work other than specified work; or

(iii) work of a specified kind.

...

The work-related visa conditions to which different visas are subject are set out in Sch.8. Their differing scope is illustrated in the following conditions (emphasis added):

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 performance of the tasks, specified in the visa application.

The issues of construction which arise in the present case concern condition 8104. In particular, whether a decision about compliance with the condition requires the averaging of work performed by an visa holder over a period greater than "a week", or whether it is enough to identify any one "week" in which more than 20 hours work has occurred. If the latter construction is correct, then a further issue arise as to the meaning of the term "a week", in particular, how the first day of "a week" is to be identified.

I shall address these issues after describing the legislative and factual background to the present case.

In my opinion, the Tribunal correctly identified the relevant provisions of the Act and Regulations which gave rise to the power to cancel. It said:

9. The visa in this case was cancelled on the ground for cancellation set out in paragraph 116(1)(b) of the Act. The delegate found that the review applicant had breached condition 8104. The relevant parts of the legislation in force at the time of the cancellation decision are set out below:

Section 116. Power to cancel

(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; or

...

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Regulation 2.43. Grounds for cancellation of visa (Act, s.116)

...

(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:

...

(b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:

(i) condition 8104 or 8105 (if the condition applies to the visa); or

(ii) condition 8202.

10. The version of condition 8104 which applied on 29 January 2003, being the date that the review applicant's visa was granted, is found at Item 8104 in Schedule 8 to the Regulations and reads as follows:

8104

The holder must not engage in work for more than 20 hours a week while the holder is in Australia.

11. If the Tribunal finds that the review applicant breached condition 8104, the visa must be cancelled (subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations). The Tribunal has no further discretion.

In my opinion, the Tribunal was clearly correct in considering that a decision-maker was obliged to cancel the visa once satisfied that a visa holder had failed to comply with condition 8104, and that it had no discretion to excuse a non-compliance for any reason. Compliance with this condition was, therefore, an obligation comparable with the more familiar condition 8202 on student visas in relation to academic attendance and performance.

The evidence before the Tribunal was that the applicant had been taken into detention after the attendance of immigration officers at his workplace, the Café Bondi. The applicant cooperated with the officers, and gave them three pay slips. These recorded a cheque dated

25 December 2003, apparently referrable to the previous week's work of 26.25 hours, a cheque dated 1 January 2004 for working 15.875 hours and 7.625 (23.5 total), and a cheque dated 8 January 2004 for working 20.5 hours and 2.75 hours (23.25 total). As is apparent, these cheques were dated on consecutive Thursdays, thus suggesting that they covered a consecutive period of 21 days of work.

The officers attending at the Café Bondi also found a "new roster" which had been issued to employees, which showed them working a 7 day working week starting on a Thursday and ending on a Wednesday. The Tribunal accepted that, although this showed the applicant rostered for more than 20 hours, it had in fact not been put in place with that effect. It accepted that the applicant had not worked for more than 20 hours in any one week (however defined) subsequent to the 21 day period shown in the pay slips.

The applicant explained to the delegate, and on appeal to the Tribunal, that he had been under the mistaken view that his visa was subject to the same work condition as his wife's visa of the same subclass, which was condition 8105 and not 8104. Her visa condition precluded her from working more than "20 hours a week during any week when the holder's course of study or training is in session", and therefore allowed her to work more than 20 hours a week during periods of vacation. As he pointed out, he had agreed to do more work at the Café Bondi over the Christmas/New Year vacation period, and then reverted to working less than 20 hours.

In its reasons the Tribunal said:

32. The Tribunal accepts the review applicant's evidence that his breach was an unintentional mistake and was not a significant breach. The Tribunal accepts that the review applicant genuinely believed that he was allowed to work more than 20 hours while his wife's course was not in session. The Tribunal also accepts that the review applicant did not work more than 20 hours a week after 8 January 2004. The Tribunal places no weight on the fact that he was rostered to work 37 hours as the roster was subsequently changed and the review applicant did not actually work those hours.

33. Unfortunately, the Tribunal is not able to take these factors into account in deciding on his visa cancellation. As the Tribunal has found that review applicant has breached condition 8104, the cancellation of his visa is mandatory under subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations. The Tribunal must therefore affirm the decision to cancel the review applicant's student visa.

The Tribunal's findings that there was non-compliance with condition 8104, upon which it decided it was bound to affirm the delegate's decision, were explained briefly:

30. As stated above, the Tribunal must determine whether the review applicant breached condition 8104 ('work limitation of 20 hours per week').

31. The Tribunal finds, based on the payslips in the Department's file that the review applicant worked more than 20 hours per week at Café Bondi during the weeks ending 25 December 2003, 1 January 2004 and 8 January 2004. During these weeks, he worked 26.25 hours, 23 hours and 23.25 hours respectively. The review applicant does not dispute this evidence and admits that he worked more than 20 hours a week during these weeks. As the review applicant worked more than 20 hours a week for 3 weeks, the Tribunal finds that he breached condition 8104.

Nowhere in its statement of reasons did the Tribunal discuss the meaning of condition 8104, or explain how it thought the reference to "more than 20 hours a week" should be calculated. It would appear, however, that the Tribunal did not think it necessary to perform an averaging over a period of more than 7 days, although it did note a continuous period of three weeks' work in excess of 20 hours per week. It also seems to have regarded the relevant week to have been the week marked by the applicant's roster and pay cheques, that is, a seven day period starting on a Thursday.

The question before me is whether this implicitly reflects a misconstruction of the condition.

Counsel for the Minister informs me that there has been no previous judicial consideration of the meaning of condition 8104.

The applicant in his written submission cited a Federal Court case of Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 257. However, it seems to me that the provisions of then condition 8202, which were considered by Katz J in that case, are not comparable with condition 8104, since they explicitly required an averaging of attendances over the whole period of a student's course of study.

Another case cited by the applicant in his written submissions is a decision of the Tribunal itself in INTHAVONG, Khanthone [2003] MRTA 3680, which did concern compliance with condition 8104. In that case, the visa holder had been found working for more than 20 hours over only a two-week period of employment occurring in a visa which had been issued more than 12 months previously. The Tribunal's statement of reasons referred to the possibility of averaging this work over a period greater than seven days in the life of the visa, but it is obscure as to what construction was ultimately applied by the Tribunal. Rather, the Tribunal seems to have thought that it could ignore the language of the condition, or overlook the non-compliance. I do not consider that either of these approaches is legally permissible. It said:

41. The condition might be interpreted as applying week by week or it might be interpreter as an average over the period the review applicant is in Australia. Yet, the delegate has taken a 2-week period out of a visa period of over 80 weeks given in the review applicant's visa as the period over which the breach occurred. The visa was issued on 22 April 2003 and was due to expire on 31 December 2004, that is, over 20 months later. Another comparison might be made with the approach in condition 8105 when looking at a visa holder who was the holder of a student visa and had not yet commenced his studies. While the review applicant had not enrolled in any course he had hoped to study while in Australia and there is nothing before the Tribunal to suggest that he would not be permitted to do this.

42. Katz J further said in Nong:

While it is accepted that a statutory provision may be given a construction which does not accord with its ordinary meaning when to give it a construction which does accord with its ordinary meaning would lead to harsh consequences (see, generally, McHugh J (with whom Toohey J agreed) in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 21-23), the present is not a case in which to give to the relevant provision a construction which accords with its ordinary meaning would lead to harsh consequences; rather, the present is a case in which to give to the relevant provision a construction which does not accord with its ordinary meaning would lead to harsh consequences. That to give to the relevant provision a construction which does not accord with its ordinary meaning would lead to harsh consequences appears to me to be a powerful reason to give to the relevant provision a construction which does accord with its ordinary meaning.

43. In view of the harsh consequences in this case to the review applicant and his wife if condition 8104 is interpreted to take effect over the 2 weeks in question and the lack of particularity of information about the conditions attached to the review applicant's visa or about full details of the statutory provisions and grounds in the notice of intention to cancel, the Tribunal has decided that there has been no breach of condition 8104. There is no suggestion that the review applicant breached any other condition of his visa.

Considering the actual language of the condition, the possibility of an averaging over a period exceeding 7 days might seem to be suggested by the clause in condition 8104: "while the holder is in Australia". It is arguable that this suggests that the holder is to be tested for compliance with a 20 hours per week average over a longer period, being the period of his residence in Australia. Alternatively, the clause might suggest that averaging might be performed over any part of that period of residence, on the basis that the condition leaves to the compliance officer the selection of a reasonable or relevant part of the visa holder's residence in Australia to test for compliance.

However, in my opinion, the language, purpose and context of condition 8104 points clearly against either of these interpretations. The purpose of a condition such as the present is to regulate the conduct of the visa holder on a continuous basis during his or her presence in Australia. The scheme of the mandatory cancellation provisions, which I have referred to above, indicates the expectation that a condition such as the present will be enforceable during the currency of the visa, not at its conclusion. I therefore consider that the reference to "while the holder is in Australia" must be construed literally, as doing no more than to qualify the preceding words to indicate the period within which a relevant "week" can be identified.

The applicant's contention, developed in his amended application and his written submission, was that averaging should be made over the period of the visa ending on the date of the cancellation decision. In his case, he pointed out that his visa had run for 53 weeks and his average work over that period was approximately seven hours per week.

There is some attraction in adopting an averaging approach over periods greater than seven days. It would produce outcomes which might appear to be more generally fair, in the sense that people such as the applicant, who are caught for relatively brief periods exceeding the 20-hour limit, might have their explanations and excuses better taken into account.

However, I would have expected much clearer language to have been used in condition 8104, if it was intended to prescribe a variable period for averaging, by defining that longer period or the discretion to define it. In my opinion, the simple language of the condition does not allow consideration of more than the simple question: whether the holder has ever during his residence under the visa engaged in work "for more than 20 hours a week". Prima facie, a failure to comply with this obligation would appear to be intended to be found if any one "week" could be identified when a greater period of work has been engaged in.

I have concluded that a visa holder's compliance with condition 8104 is not intended to require an averaging of a visa holder's period or periods of work exceeding any "week" found at any time during his residence in Australia under the visa.

This construction is consistent with the Full Court's interpretation of the work condition which attached to the applicant's wife's visa, condition 8105 (extracted above at [7]) in Minister for Immigration and Multicultural and Indigenous Affairs v Alam (2005) 145 FCR 345, [2005] FCAFC 132, on appeal from Barnes FM in Alam v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 583. The Court accepted that the averaging required by that condition was over a 7 day or lesser period of one "week". It took the view that the condition requiring the holder not to engage in work "in Australia for more than 20 hours a week" allowed the testing of any one week of the student's residence. However, this was also pointed to by the further qualifying words of condition 8105: "during any week where the holder's course of study or training is in session", which have no reflection in condition 8104_._

The dispute in Alam as to the interpretation of condition 8105 was how a single "week" period should be defined. Reference was made in the judgments to the range of meanings to which the word "week" is capable, and in particular the statement by Dixon J in Dunlop Perdriau Rubber Co Ltd v Federated Rubber Workers' Union of Australia [1931] HCA 33; (1931) 46 CLR 329 at 341 where Dixon J said:

"Week" ... is capable of meaning the calendar week commencing on Sunday, any consecutive seven days, the week observed by the particular employer in the calculation of wages, or the five days from Monday to Friday.

Barnes FM also cited at [50] the Macquarie Dictionary definition of "week" as:

A period of seven successive days, commonly understood as beginning (unless otherwise specified or implied) with Sunday.

Her Honour and the Full Court took the view that the reference in the qualifying word to "any week" when a course of study "is in session" suggested that a relevant week for the purposes of condition 8105 should be determined by reference to the starting date for a week of study, rather than the starting date for a week of work. They also rejected submissions by the Minister that "a week" could refer to any period of seven consecutive days, thereby allowing a decision-maker to identify a 7 day period starting on any day of the week in which more than 20 hours work was engaged in. Stone J said:

[37] I do not accept this approach. To my mind, the phrase 'any week when the holder's course of study or training is in session' in condition 8105 gives a clear statutory context in which to interpret the word, 'week'. It provides certainty, objectivity and clarity in respect of an individual visa holder and the course in which he or she is enrolled. The Department can determine the relevant weeks with reference to the institution in which a visa holder is enrolled and without the necessity to refer to his or her pay periods. Indeed there is no guarantee that pay periods will be consistent over a whole session or even that they be with the same employer. A person may work for more than one employer at the same time and be paid on a monthly or fortnightly basis by one employer and on a weekly basis by another. Ultimately, of course, if the Department suspects that a visa holder is exceeding the statutory maximum number of work hours it will be necessary to obtain work records. However, I see no reason why, as a matter of statutory construction or practicality, the 'week' referred to in condition 8105 should be determined by pay periods rather than by reference to the course in which the visa holder is enrolled. In my view it is not necessary to resort to a concept of beneficial construction or to consider the draconian consequences of mandatory cancellation to support this interpretation of condition 8105; read in context, the terms of condition 8105 invite this interpretation.

[38] I am not persuaded by the appellant's submission that on the construction I prefer, if the session of study were to end on a Friday, the work restriction would extend to the following Saturday and Sunday because the 'week' would include those two days. Those days would not be within the session and therefore could not be affected by the condition. In the present case it is not necessary to consider whether, in such a case, the restriction would apply to the last five days of the session. It may be that, in context, 'week' includes part of a week but I express no opinion on that issue.

Allsop J, with whom Wilcox J agreed, said:

[55] The natural meaning of the word in its context is a week commencing, depending on its context, either on Sunday or Monday. The Federal Magistrate said Monday (that is after midnight on Sunday). On either view (Sunday or Monday) it was common ground that there was no breach of the Regulation. Thus, it is unnecessary to express an opinion as to whether Sunday (that is, after midnight on Saturday) is the preferable commencing point for the week. It is only necessary to reject the appellant's contention that "week" means "any period of seven consecutive days".

Addressing condition 8104 in the light of the contentions of the applicant and the Full Court's reasoning in relation to condition 8105, I accept the submissions of counsel for the Minister that the week to which condition 8104 refers is intended to be a period of up to 7 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. I also accept that the starting day of the visa holder's working week would be a question of fact for a decision-maker in each case to decide.

This may be difficult in some cases and easy in others. A clerk working Monday to Friday would normally be regarded as working a five-day working week starting on Monday, regardless of the basis upon which his salary was paid. A worker such as the present employed on a casual basis on a seven day roster, might best be found to be working the week identified in the roster. This characterisation of his working week would appear to be confirmed if, as in the present case, the person was being paid weekly cheques at the termination of each rostered week.

In my opinion, this interpretation would accord with the apparently simple language adopted in condition 8104. This seems to assume that the officers of the department involved in supervising compliance with this visa condition, and the holders of such visas to which the condition attaches, would have some ordinary understanding of the "hours a week" that a worker might be working from time to time. The condition is using language from ordinary parlance as to a person's weekly hours of work, and in my opinion a commonsense approach to the language of the condition should solve the factual question in each case.

I would reject the alternative construction submitted by the Minister's counsel, which was the construction which was presented to the Full Court in Alam, that a seven-day period starting on any day of the week can be taken when assessing compliance with condition 8104, regardless of the period which the holder, or his employer, or the community, would regard as his or her working week.

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.

On the construction of condition 8104 taken by me, I am unable to identify any legal error in the reasoning of the Tribunal. I therefore am unable to uphold the argument raised by the first ground in the amended application.

The second ground of the application to this Court contended that the Tribunal fell into jurisdictional error by not applying principles of honest and reasonable mistake as a "defence" to an alleged contravention of condition 8104.

It is clear from the reasoning of the Tribunal which I have extracted above that it took the view that once a contravention occurred in any relevant week, the applicant's honest and reasonable mistake as to his visa obligations could provide no answer in preventing mandatory cancellation.

However, in my opinion, the relevant provisions of the Migration Act and Regulations allow no such "defence" or excuse. Although the provision might appear to have penal consequences in the sense that the cancellation results in the loss of an entitlement to reside in Australia, cancellation is not imposed as a penalty or as a response to any civil or criminal charge. The conditions upon which cancellation must occur in my opinion are found by the clear language of s.116(3) and Reg.2.43 which I have set out above.

In my opinion, the Tribunal made no error in its opinion that it could not give effect to the mitigating factors pointed to by the applicant.

The applicant today complained that visa conditions such as work conditions on a student visa should be clearer and better able to be understood by students such as himself and his wife. This is a very valid point, and I would recommend to the Minister that further thought be given to better defining how compliance with a condition such as the present is to be assessed. This would benefit both a student or his or her spouse attempting to conform to visa conditions, and the officers in the Department and Tribunal whose job it is to determine compliance.

However, it is my function in the present case to consider whether the Tribunal, which had the duty to apply the present condition with its ambiguities, has been shown to have made a jurisdictional error of law when applying it. As I have indicated above, I have not been so satisfied.

For the above reasons, I consider that I must dismiss the present application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Smith FM