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[2011] FCA 1071
Federal Court of Australia
2011-09-20
Stone J
Original judgment source is linked above.
BACKGROUND 1 The appellant, Ms Kamely, is a citizen of Bangladesh who arrived in Australia on 25 June 2006 as the holder of a Higher Education Sector, Subclass 573, student visa which was valid until 30 July 2009. In November 2009 she was granted a Vocational Education and Training Sector subclass 572 visa originally valid until 6 October 2010. This visa was cancelled on 7 April 2010 by a delegate of the first respondent, pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) for failure to comply with Condition 8105 of the visa. 2 On review by the Migration Review Tribunal, the Tribunal confirmed the delegate's decision. The appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court. Her application was dismissed on 8 November 2010. By notice of appeal filed on 29 November 2010 she now appeals to this Court. 3 The appeal was heard at the same time as the appeal in Al Ferdous v Minister for Immigration & Citizenship [2011] FCA 1070. That appeal was brought by the husband of the present appellant, Mr Al Ferdous, whose visa was also cancelled for reasons similar to those relevant here. Because both appeals raised the same issues they were heard together. These reasons should be read in conjunction with the reasons in the Al Ferdous appeal.
The Tribunal's decision 4 The appellant's visa was subject to Condition 8105. Pursuant to subclause 576.11 in Schedule 2 to the Migration Regulations 1994 (Cth), Condition 8105 provides: (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 Course for Overseas students. 5 The Minister may cancel a visa if its holder has not complied with a condition of the visa: s 116(1)(b) of the Migration Act. Cancellation is obligatory where there is non-compliance with Condition 8105: s 116(3) and reg 2.43(2)(b)(i). 6 The Tribunal considered documentary evidence obtained from the appellant and from other sources, the oral evidence of the appellant at the hearing on 1 June 2010 and the appellant's post-hearing submissions provided at the invitation of the Tribunal. 7 In her oral evidence at the hearing before the Tribunal the appellant said that she was enrolled in a course leading to an Advanced Diploma of Hospitality Management (Commercial Cook) at the Perth Institute which she expected to complete in August 2010. She admitted that she was aware of the work restriction imposed by Condition 8105 of her visa. 8 In the written statement to the Tribunal the appellant admitted to working 42 hours in the week commencing 9 November 2009 and 27.45 hours in the week commencing 23 November 2009. She confirmed this statement in her oral evidence to the Tribunal. The Tribunal noted that the appellant's payslips from the Antico Café and the deposits made to her bank account during November 2009 tended to support this evidence. The Tribunal therefore made a finding that the appellant had worked the hours as stated. 9 The appellant submitted that although she had worked the above hours she was not in breach of Condition 8105 because in both weeks she was participating in an industry placement required as part of her course. After making enquiries of the Perth Institute the Tribunal did not accept the appellant's claim as to the industry placement. It said: Although the review applicant claims to have participated in an industry placement during the weeks commencing 9 November 2009 and 23 November 2009 the Tribunal is not satisfied that the evidence before it establishes that this was the case. The Perth Institute, which is the relevant education provider, advised the Tribunal … that the Industry Placement Agreement with Hungry Jacks which the review applicant had submitted to the Tribunal could not be confirmed. It also informed the Tribunal that the associated industry placement timesheets for Hungry Jacks were not an accurate record of the timesheets the review applicant provided to the Tribunal. In addition, the Perth Institute advised the Tribunal that it had only two timesheets for the review applicant on file and that they were not the timesheets that had been submitted to the Tribunal. Instead the industry placement timesheets the Perth Institute had on file for the review applicant named the Antico Café as her industry placement employer and related to the weeks commencing 2 and 9 November. 10 Understandably the information obtained from the Perth Institute raised doubts in the Tribunal's mind that the appellant's account was accurate. The appellant was not able to provide any explanation as to the inconsistency between her account and the information obtained from the Perth Institute or other inconsistencies arising in the documents she had submitted to the Tribunal. The Tribunal gave greater weight to the information from the Perth Institute than that from the appellant. Accordingly the Tribunal did not accept that the appellant had an industry placement at Hungry Jacks during November 2009. The Tribunal also found that the holiday break in the appellant's course did not commence until 19 December 2009. 11 The Tribunal therefore found that the appellant breached Condition 8105 in the weeks commencing 9 November 2009 and 23 November 2009. It confirmed the delegate's cancellation of her visa.
The decision of the Federal Magistrate 12 The appellant sought judicial review of the Tribunal's decision. She relied on three grounds of appeal. The first was that the Tribunal had made an error in "not providing the information which the Tribunal used in making the decision …". The Federal Magistrate noted that this ground was "unsupported by particulars, evidence or submissions". Her Honour assumed that the appellant was alleging that the Tribunal had, wholly or in part, based its decision, on information that was not given to the appellant for comment. 13 The Federal Magistrate summarised the Tribunal's account of the information which led to its conclusion and the opportunities for comment that the Tribunal afforded to the appellant. Her Honour concluded that the Tribunal had given the appellant all the information that formed the Tribunal's reasons or part of its reasons and had acted in accordance with its statutory obligations. Accordingly the first ground of appeal was not made out. 14 The second ground was that the Tribunal had failed to consider that she did voluntary work experience which was paid for by the company. The Federal Magistrate pointed out that the Tribunal had carefully considered the claim that the appellant was engaged in work experience or industry placement and had rejected that claim as a matter of fact. 15 Her Honour also considered that the ground might have involved a submission that where work was voluntary it was not 'work' within the meaning of the visa condition. This ground was also rejected. Her Honour made the point that the appellant was in fact paid for the work but also noted that: an activity does not need to be remunerated for it to be "work" so long as it is an activity that normally attracts remuneration (Braun v Minister for Immigration Local Government and Ethnic Affairs (1991) 33 FCR 152; Kim v Witton (1995) 59 FCR 258). The Tribunal specifically had regard to the meaning of "work" in its decision record, including the notion of whether or not voluntary work was "work" for the purposes of the legislation and the issue before the Tribunal. 16 The Federal Magistrate also dismissed the third ground of appeal in which the appellant asserted that the Tribunal had failed to consider that she had nearly completed 95% of her designated course. Her Honour noted that cancellation for breach of Condition 8105 is mandatory and that once the breach is made out s 116(3) of the Migration Act and reg 2.43(2)(b) of the Migration Regulations require the visa to be cancelled. The Tribunal had no discretion to take into account the fact that the appellant had nearly completed her course.
The appeal 17 By notice of appeal filed on 29 November 2010, the appellant raised three grounds of appeal against the Federal Magistrate's decision. They were that her Honour should have found that: (a) the Tribunal failed to give "proper, genuine and realistic consideration" and was in error in finding that the appellant's case "bordered upon a request for merits review". (b) the Tribunal erred in "calculating voluntary work as work"; and (c) the Tribunal did not correctly discharge its statutory obligation. 18 It is not surprising that the grounds of appeal put forward by unrepresented litigants who are husband and wife should have much in common. This is true of the present notice of appeal and that in Al Ferdous. That does not detract from any merit that may be in those grounds particularly where the Tribunal in each case was constituted by the same member and the visa breach in each case was essentially the same. I note however that the applications for judicial review were heard by different Federal Magistrates and in each case the application was dismissed. 19 As in Al Ferdous, the Minister submitted that the appellant had not claimed before the Federal Magistrate that the Tribunal did not give "proper genuine and realistic consideration" to appellant's case and therefore the appellant needed leave to raise that matter on appeal. As I have said in Al Ferdous, I would be reluctant to adopt that course with an unrepresented appellant where another approach to the notice of appeal suggests itself. In this case no such approach suggests itself and the appellant did not make any submissions either on the substance of the claim or on the reasons why leave should be granted. In the circumstances leave should not be granted. 20 In any event, even if leave were granted, the claim would have to be rejected for the same reasons that I gave in Al Ferdous at [20]-[21]: The meaning of the phrase "proper genuine and realistic consideration" was considered in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 where "proper, genuine and realistic consideration" was considered by the High Court which referred with apparent approval to the comment of Basten JA in Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]: That which had to be properly considered was the "merits of the case". Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merits review. Understood in this way, the ground may well be an invitation to this Court to find error in the Federal Magistrate's failure to review the merits of the Tribunal's decision. 21 In the case of Ms Kamely's appeal on the facts as found by the Tribunal, and which it was open to the Tribunal to find, the Tribunal had no discretion to do other than affirm the cancellation of the appellant's visa. This conclusion also applies to the second ground of review in relation to which Mr Smith, counsel for the Minister, pointed out that the appellant had not claimed to have done voluntary work. 22 Mr Smith submitted that the Tribunal made findings of fact adverse to the claims made by the appellant. The Tribunal did not accept the appellant's claims that her excess hours of work were part of an industry placement and were worked when her course was not in session. Those findings were open to the Tribunal on the information before it. This Court does not have jurisdiction to review those findings. 23 The issue raised in the appellant's third ground of appeal was put to the Federal Magistrate. In rejecting this ground I can do no better than quote the conclusion to her Honour's reasons which, at [33]-[34], amply address the point: A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant both at the hearing and twice in writing matters of concern it had about her evidence and noted the Applicant's responses. To the extent that the Tribunal had regard to information that enliven the obligation of s 359A of the Act, the Tribunal gave that information to the Applicant in accordance with that statutory regime. The Tribunal then made findings based on the evidence and the material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal's decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 24 Her Honour was correct to find that the Tribunal's decision is not affected by jurisdictional error. The appeal must therefore be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
Kamely
Minister for Immigration & Citizenship