allsop j
41 This is an appeal by the Minister from orders made by a Federal Magistrate on 11 October 2004 setting aside a decision of the Migration Review Tribunal (the "Tribunal") which had affirmed a decision of the delegate of the appellant Minister to cancel the visa held by the respondent. The appeal raises a question of the statutory construction of clause 8105 in Schedule 8 to the Migration Regulations 1994 (Cth).
42 At the relevant time, the respondent held a student subclass 573 (Higher Education Sector) visa. One of the conditions of that visa was clause 8105 in Schedule 8 to the Migration Regulations 1994 (Cth), which was, at the relevant time, in the following terms:
8105 (1) Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours 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.
[emphasis added]
43 The Tribunal and the Federal Magistrate dealt with the matter by reference to the condition in an earlier form. It was common ground that that error was not operative in any way.
44 The issue on appeal is the Federal Magistrate's construction of the word "week" as it appears in clause 8105. The appellant contended that the Federal Magistrate erred in holding that the word "week" in the phrase "during any week" in clause 8105 meant a seven day period commencing on the day of the week on which the session commenced at the educational institution attended by the respondent.
45 The Federal Magistrate approached the issue by first considering Hope v Bathurst City Council (1980) 144 CLR 1 at 7 - 8 per Mason J. Thereafter, her Honour referred to what was said in another context in Dunlop Perdriau Rubber Co Ltd v Federated Rubber Workers' Union of Australia (1931) 46 CLR 329 at 341 per Dixon J. Her Honour then referred to the Macquarie Dictionary, Revised Edition, which defined week as "a period of seven successive days, commonly understood as beginning (unless otherwise specified or implied) with Sunday". (emphasis added)
46 The Federal Magistrate then directed herself to the authority in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 to illustrate that is necessary to construe the words in clause 8105 by having regard to the subject matter of the condition and context in which the word appears. Her Honour reasoned at [50]:
In this instance the word appears in the expression 'any week when the institution at which the holder is studying is in session' in a condition imposing a restriction on a visa holder. The sense in which is [sic] used must be considered in that context.
47 The Federal Magistrate concluded that a week commenced on the day that the institution at which the holder is studying commenced session, in this case it commenced on a Monday, saying at [53]:
Each week will, consistent with the language and purpose of the relevant parts of the Migration Act and Regulations, be for a seven day period commencing on the day that is the first day of session. In this instance each week would be from Monday to Sunday during the session. Were it otherwise, and were the word 'week' in condition 8105 to mean any period of seven days, there would clearly be considerable uncertainty and difficulty for visa holders in determining when they could work, not only in the periods immediately before and after the session but also where, as here, weekend work was under consideration.
48 In forming her construction, her Honour had regard to the particularly draconian consequences that follow a breach of the condition, being the mandatory cancellation of the visa, removal of the respondent from Australia and a ban on re-entry into Australia for three years.
49 The notice of appeal to this Court was in the following terms:
GROUNDS
2. Her Honour erred in holding that the word 'week' in the phrase in condition 8105 in Schedule 8 to the Migration Regulations 1994 "any week when the institution at which the holder is studying is in session" (hereinafter referred to as Week) means a seven day period commencing on the day of the week on which any particular session commenced in the educational institution attended by the Respondent.
3. Her Honour erred in not holding that Week means any seven day period.
4. Her Honour erred in holding that the Migration Review Tribunal misconstrued condition 8105 in considering that Week meant any seven day period.
50 Thus, the appellant contended that the word "week" in the context of the condition meant any period of seven consecutive days. This argument was derived from the variety of interpretations that the word has had depending on its context. To support this contention the appellant referred to several authorities. In Halsbury's Laws of England, 4th Ed, Vol 45, para 1112, a week is strictly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days. In Bazagette v Lowe (1855) 24 LJ Ch 368, affirmed (1855) 24 LJ Ch 416, the ordinary notion of a week was reckoned from Sunday to Sunday. In Dunlop Perdriau Rubber Co Ltd v Federated Rubber Workers' Union of Australia, Dixon J at 341 said, of the use of the word "week" in a statute that:
…it preserves the ambiguity contained in the word 'week'. This word 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 which the award calls a week; and other meanings may be suggested."
51 The appellant also referred to the judgment of Young J (as his Honour then was) in Strickland v Grieve (1995) 7 BPR 14,376 where his Honour contemplating the word week in the context of construing a commercial contract said at 14,380 that:
the strict meaning of 'week' is displaced because this is a contract made through solicitors contemplating that there will be a completion in a commercial office and one would not expect that to be on a Saturday. Accordingly, the probability is that the parties intended the word 'week' to mean the period of seven consecutive days commencing on 17 March.
52 The appellant submitted that the proper construction of the regulation should be assessed having regard to the context and purpose of the provisions and of the statutory regime as a whole. A student subclass 573 visa is granted to a person who is enrolled in a full-time registered course of study in the higher education sector, making the immediate context of the grant of the visa the full-time nature of the study undertaken. The appellant submitted that in this context one of the purposes of limiting the work to a 20 hour per week limit was to ensure that a person undertaking a full time course of study is not distracted from the course by working excessively and also to ensure that the visa holder remains in Australia only for the purpose that he or she was given permission to enter, that is, to study and not to work.
53 The appellant further submitted that although the week in question "must be within the relevant period" that is, "when the holder's course of study or training is in session", it does not necessarily follow, as the Federal Magistrate found, that the week in question must commence on the day on which the session commenced. The appellant submitted that the word "any" qualifies "week" and therefore proves inconsistent her Honour's construction. The appellant contended a limitation was imposed by her Honour's construction, that is, restricting the right to work to a period bound by the beginning and end of a session. The appellant identified in this reasoning an error insofar as her Honour's construction would extend the period of restriction beyond the end of session. The example given was if the session commenced on a Monday and ended on a Friday, weekend work for that week would be outside the parameters of the restriction, being when the course of study undertaken was no longer session, yet would be nonetheless restricted by the confines of the seven days attributed to the last week of session. Instead, the appellant said that the word should be understood to refer to any seven day period in which the course is in session. On this basis, the appellant submitted that the Tribunal was correct in its finding that the respondent had breached condition 8105 by having worked 22 Ľ hours in the seven consecutive days from Tuesday, 8 October 2002 to Monday, 14 October 2002.
54 I do not find the arguments of the appellant to be persuasive. The context and purpose of the Regulation, if anything, supports the approach of the Federal Magistrate. Further, the approach of the appellant is likely to produce results that are arbitrary and uncertain.
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".
56 The above deals with the substance of the appeal. Unfortunately, it is necessary to identify some matters of fact which gave rise to the proceedings. It is necessary to deal with them because the Court raised the question as to whether the factual matters, to which I am about to refer, justify an order for indemnity costs against the Minister.
57 Before these facts are discussed, it is important to understand that the issues before the Federal Magistrate were wider than they were on appeal. One of the issues that the Federal Magistrate was asked to determine on the amended application was whether or not the respondent was validly notified of the Department's intention to cancel his visa. This issue was the basis of the cross-appeal which was abandoned on appeal before us. The question of valid notification involved an understanding of how the respondent was given notice and whether he had a proper opportunity to respond to what he was being accused of. As will be seen from the facts below, the way he was apparently treated by officers of the Department was plainly relevant to that issue.
58 The respondent entered Australia on a valid student visa on 17 April 2001. Further student visas were granted to him on 18 May 2001, 11 September 2001 and 19 September 2001. The student visa granted on 19 September 2001 was the relevant visa being a Subclass 573 (Higher Education Sector) visa granted on the basis of the respondent's enrolment in a Bachelor of Information Technology at Central Queensland University. Apparently, the respondent's studies were undertaken both conscientiously and to a highly successful standard.
59 On the evening of 18 December 2002, the respondent was issued with a written "notice of intention to consider cancellation" pursuant to s 116 of the Migration Act 1958 (Cth) (the Act). The possible grounds for cancellation of the visa were identified as breaches of condition 8202 (a failure to achieve 80% attendance of the course and satisfactory academic progress for the semester) and condition 8105 (working more than the permitted 20 hours whilst the course of study was in session). The former basis was not relied on and can be put to one side. The notice invited the respondent to comment on the Department's intention to cancel his visa and to give reasons why his visa should not be cancelled at an interview to be held at the Department's address in Lee Street, Sydney. The respondent was further advised in the same notice that he would need to provide his comments within 30 minutes of the start of the interview. The copy of the notice before this Court, the same as that which was before her Honour, indicated that the interview was initially to take place at 11:30 am or pm (it is unclear) on 16 January 2003. These details were, however, later crossed out, apparently by the second Departmental officer whose signature appears on the notification of the decision to cancel the visa, and replaced by 10:30 pm on 18 December 2003. (This involved a clerical error. The date was plainly intended to be 18 December 2002.) The notice was signed by the both the Departmental officer and the respondent and dated 18 December 2002.
60 In an affidavit sworn on 4 February 2004 accompanying his amended application before the Federal Magistrate, on which the respondent was cross-examined, the respondent indicated how he came to be in the above position. He stated that Departmental officers came to his house on the evening of 18 December 2002 looking for one of his friends, who was there at the time. They asked the respondent his name. The respondent told them his name and also showed them his passport. They searched through his belongings and room without showing him a warrant. There was no suggestion that the officers had any warrant or other authority to search his belongings. The respondent states that he did not agree to the search. The Departmental officers found his pay slips during the search. The respondent stated that he was kept in his house by the officers for about an hour and was then told to go with them. He was apparently refused the opportunity to put a shirt on top of his singlet before leaving, effectively under arrest. He and his friend were taken to the Department offices at Lee Street and were made to wait. After a period of waiting the respondent was approached by, and asked to follow, a Departmental officer. The respondent stated at [4] of his affidavit that a conversation to the following effect transpired between them:
DIMIA: Why did you work more than 20 hours in a week. You have breached your visa conditions. Your payslip says that you worked two hours more than allowed. Why did you breach conditions.
Me: No - I am sure I am allowed to work as long as I want on a public holiday. I do not need to work - my father supports me.
DIMIA: It doesn't matter if you work one minute extra - it is the same thing. It is mandatory cancellation. If there were not others here tonight, I would let you go.
Me: It is not fair to cancel my visa and it is not the right judgement.
DIMIA: It is not the right judgement but it is the decision because you have breached conditions.
(Errors in the original)
61 At [5] of his affidavit the respondent stated that:
While I asked [sic] being asked those questions by the DIMIA officer, he was filling out a form. I was given some paperwork, which I now know to be a notice to cancel my visa and the decision to cancel my visa. I was not given the notice until after my interview and I signed it when I signed the decision to cancel my visa. I did not even read the notice. If I had, I would have said that I also did not breach my attendance requirements.
62 The decision to cancel the visa was made by an officer other than the officer who signed the notice of intention to consider cancellation. The "Record of the Decision whether to Cancel Visa" stated that the respondent received the notice of intention to consider cancellation at 10:30 pm on 18 December 2002. The grounds for cancellation were said to exist under s 116(1)(b), s 116(3) and Regulation 2.43(2)(b). The evidence of and reasons stated for the cancellation of the visa were:
Subject has been working at the 3 wise monkeys for more than 20 hrs/ week on the first week of October 2002. Breach of condition 8105 for working in excess of 20 hrs/ week in course times. Mandatory cancellation exists.
The reasons the officer stated for cancelling the visa were that he was,
satisfied that the subject has breached condition 8105 of his student visa. His payslips clearly indicate that he has worked in excess of 20 hrs/ week during course time in the first week of October. Subject presented no plausable [sic] reason for the extent of breach which [illegible] reasonably beyond his control. I find subject has breached condition 8105 and therefore visa must be cancelled…
63 The pay slips recorded that the respondent worked for 22Ľ hours in one period of seven consecutive days.
64 The decision was dated 18 December 2002 and the time of 11.00 pm appears on the record of decision.
65 A written "Notification of decision to cancel the visa under s 116 of the Migration Act 1958" was completed and signed by the officer who made the decision, dated 18 December 2002 at 11.15 pm. The respondent's signature also appears on this document with the date 18 December 2002, however, no time of receipt of the notification was inserted in the space provided.
66 The Federal Magistrate recorded in her reasons at [13] that in oral evidence the respondent confirmed that when taken to Lee Street and while waiting to be called to interview he had not been given any documents. He was not given any until he was given the two documents to sign after the conversation with the Departmental officer referred to above. In re-examination the respondent indicated that he was not sure whether the relevant Departmental officer's signature was on the notice of intention to consider cancellation and the notification of the decision when he signed them and he was not sure of the time at which he had signed the documents. He confirmed that he signed both the documents after the conversation with the Departmental officer. He also confirmed that he was given the documents at the same time to sign by the same person.
67 The cancellation of the respondent's visa resulted in his detention at Villawood commencing on the evening of 18 December 2002. At [6] of his affidavit the respondent recounts the circumstances under which he was taken into detention.
DIMIA: If you pay a bond of $10,000 you can leave.
Me: I can't get $10,000 now. I might be able to get $5,000. It is late. Can I call my sister to get money.
DIMIA: No - you can't talk with anyone.
(the DIMIA officer then took my wallet and my two mobile phones)
…
DIMIA: I can't let you go if you don't pay. You will have to go to Villawood. You will be released tomorrow. It is easy to get your release. Just explain it to the officer at Villawood.
68 The respondent was detained at Villawood Immigration Detention Centre from the evening of 18 December 2002 to 6 January 2003 when he was granted a Bridging Visa.
69 Thus, the respondent's visa was purportedly cancelled, wrongly as the Federal Magistrate correctly found, in the following circumstances:
1. a search of the respondent's home and belongings without apparent cause or warrant;
2. the restraining (though without the application of force) of the respondent while the search proceeded;
3. the arrest of the respondent without apparent lawful warrant and his removal to Lee Street;
4. the holding of the respondent at Lee Street and his interrogation there; and
5. the removal of the respondent into incarceration at Villawood Detention Centre for nearly three weeks.
70 This behaviour led to and involved the wrongful cancelling of the visa. It has, no doubt, led to significant distress to the respondent. No explanation of it has been forthcoming after the Court expressed its concern at the appeal in relation to these facts. That lack of explanation may reveal that there is little that can be said to excuse it. If that is the case, the facts reveal conduct of Departmental officers that should be considered worthy of significant criticism. Unexplained, the evidence led before the Federal Magistrate and her findings reveal a trespass and false imprisonment. If this were the proper conclusion from these unexplained facts, issues would arise as to the responsibility in tort of the Commonwealth, and the officers personally, for this behaviour. It should not be thought that any such claim would not be justiciable as a claim in federal jurisdiction in this Court whether as part of the matter raised by judicial review of a decision or as a matter arising independently under s 39B(1) or (1A) of the Judiciary Act 1903 (Cth).
71 At the hearing of the appeal the Court raised the question as to whether the Minister should not pay indemnity costs. It was put to Mr Smith, who appeared on behalf of the Minister, that the above factual background to this matter might lead to the conclusion that all the legal costs of the respondent have been incurred as a result of what was apparently unlawful conduct by officers of the Department. In answer to this matter Mr Smith submitted that the issue of indemnity costs was not properly before the Court at first instance and that it would be unfair at this stage to deal with this matter as a fresh matter on appeal.
72 As I have indicated above, the considerations as to how the respondent found himself to be at Lee Street were relevant to the issues raised before the learned Federal Magistrate. However, no claim for indemnity costs was raised below based on this ground. If it had been, it may be, as Mr Smith says, that further factual material could have been placed before the Court. Partly, because of this I am not prepared to order indemnity costs on the basis of the findings of fact made by the Federal Magistrate and based on the evidence led from the respondent as to how he found himself at Lee Street. Also, the particular officers in question have not had an opportunity to answer any criticisms that may be made of their conduct.
73 Nevertheless, I wish to express my concern as to the methods apparently used by officers of the Department in dealing with this man. As a non-citizen holding a valid visa (as with any person present in this country) he was entitled to be treated according to law. There was no entitlement in officers of the Department to subject him to search without warrant, to arrest, to interrogation and to incarceration otherwise than proceeding according to law. The facts which were exposed before the learned Federal Magistrate, unexplained and unjustified as they appear to have been, gave the respondent real cause for complaint as to his treatment by the Executive of this country.
74 The appellant suggests that in circumstances of the failure of the appeal the appropriate orders in substance are as follows:
1. the appeal be dismissed;
2. order 3 made by the Federal Magistrates Court be set aside;
3. the Court declares that the decision of the appellant's delegate to cancel the respondent's visa made on 18 December 2002 is null and void; and
4. the appellant pay the respondent's costs of the appeal and the proceedings in the Federal Magistrate Court.
75 The reason for the second order that is that order 3 made by the Federal Magistrates Court was that a writ of mandamus issue requiring the Tribunal to redetermine the matter according to law. The Tribunal was not a party to the application before the Federal Magistrate, nor was it a party to the appeal. In those circumstances I agree that order 3 made by the Federal Magistrates Court be set aside.
76 The third order suggested by the appellant provides for the declaration of invalidity of the delegate's decision. That, taken together with the declaration of invalidity of the Tribunal's decision made by the Federal Magistrates Court, will ensure that the position is clear that the respondent's visa is not, and never has been, cancelled.
77 With one additional direction, the orders that I would make are as suggested by the appellant upon failure of the appeal and as I referred to above. The additional is that the solicitors for the appellant bring these reasons to the attention of the Minister at the earliest opportunity.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop .