The Tribunal's FINDINGS
6 The MRT affirmed the delegate's decision not to grant the applicant a Bridging E visa (Class WE) Subclass 050 because the applicant did not satisfy a criterion for the grant of that visa. Clause 050.223 of Sch 2 of the Migration Regulations 1994 (Cth) ("Regulations") provides that the Minister (or MRT) must be satisfied that the applicant will abide by any conditions imposed on the grant of a bridging visa. In this case, the MRT was not satisfied that the applicant would abide by Condition 8101 in Sch 8 of the Regulations, the "no work condition", which provides that the holder of the visa must not engage in work in Australia. Regulation 1.03 defines "work" as "an activity that, in Australia, normally attracts remuneration".
7 The MRT stated that:
"The Tribunal is not satisfied that the visa applicant would abide by the no work condition. The Tribunal is satisfied that the visa applicant's brother is willing and able to accommodate and financially support his sister. However, the Tribunal considers that this accommodation and support would appear to be contingent on the visa applicant continuing to undertake the activities as set out above [minding her brother's children and doing housework, cleaning, cooking and washing for her brother], particularly caring for her nephew. As the Tribunal cannot be satisfied that the visa applicant would abide by condition 8101, the Tribunal cannot be satisfied that she meets clause 050.223."
8 In concluding that the type of activity that the applicant was proposing to engage in constituted "work", the Tribunal referred to a number of cases, including Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489 ("Dib"). In that case, Einfeld J stated (at 495) that
"In my opinion, the definition in reg 1.03 is capable of a variety of interpretations depending upon what factors are taken into consideration and therefore cannot be applied without additional qualification. In other words, commercial, social, domestic or altruistic motivations may, in the context of all the facts of a case, assist in determining whether a particular activity undertaken voluntarily is one that ordinarily attracts remuneration. For example, a person visiting his brother and family may help in painting his brother's house. Because house-painting is often 'work' performed for remuneration does not mean that it is not also undertaken as a domestic activity by the owners of the house being painted or by their relatives or friends. Similarly, a son or daughter of the owner of a car may receive pocket money or some assistance in kind, such as the periodic use of the car, in return for washing it every week, or may receive nothing other than the gratitude of the relevant parent. Gardening or other household tasks may be done on the same basis. That this type of activity may also be done for reward by a professional car washer, gardener or domestic assistant where it is undoubtedly 'work' does not mean that when done by the sons or daughters, it is 'work' in the relevant sense by them.
Thus to determine whether in a particular circumstance the painting of a house or other like activity constitutes 'work', all the facts peculiar to the case are to be taken into account and the considerations outlined in [Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50] and subsequent cases may be used to assist in the determination. If this undertaking is not performed, the definition in reg 1.03 cannot be applied consistently or sensibly to situations that do not fall exclusively into one of the two possibilities."
9 The Tribunal reasoned thus:
"The Tribunal is satisfied that the activities undertaken by the visa applicant whilst living with her brother constitute work as they are activities which would normally attract remuneration. The activities could be classified as child minding, housekeeper, domestic or nanny, all of which are occupations, which normally attract remuneration. The Tribunal considers that if the visa applicant was not available to perform these activities, particularly child minding, her brother and his de facto would need to pay for this service to enable them to continue to work on a full time basis."