Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47

FEDERAL COURT OF AUSTRALIA

Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 47 MIGRATION – work condition attaching to student visa – where breach results in mandatory cancellation – whether failure to consider relevant evidence – whether failure to accord procedural fairness – whether failure to draw attention to deficiencies in appellant's material – whether general duty to inquire – no issue of principle Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 48, 116, 359A Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259, cited SAM SUZZAMAN MOHAMMED v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS WAD 201 OF 2004

MOORE, NORTH & EMMETT JJ 8 APRIL 2005 SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 201 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SAM SUZZAMAN MOHAMMED

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, NORTH & EMMETT JJ

DATE OF ORDER: 8 APRIL 2005

WHERE MADE: SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT: 1. The appeal against the judgment in W214 of 2003 be dismissed. 2. The appeal against the judgment in W4 of 2004 be dismissed. 3. The appellant pay the respondent's costs in both appeals. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 201 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SAM SUZZAMAN MOHAMMED

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MOORE, NORTH & EMMETT JJ

DATE: 8 APRIL 2005

PLACE: SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT THE COURT: 1 This judgment deals with two appeals (in substance but not form) from judgments of a single judge of this Court dismissing two applications for judicial review. The first was an application ("the first application") under s 39B of the Judiciary Act 1903 (Cth) seeking review of a decision of the Migration Review Tribunal ("the Tribunal") of 8 October 2003 affirming a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") cancelling the appellant's Student (Temporary) (Class TU) visa. The delegate made the decision on 31 October 2002. The delegate concluded the appellant had breached visa condition 8105 of Schedule 8 of the Migration Regulations 1994 ("the Regulations"). The second was another application ("the second application") under s 39B challenging a decision of a delegate communicated to the appellant in a letter dated 22 December 2003. The delegate informed the appellant that his application of 10 March 2003 for a subclass 136 visa (skills) was not a valid application because of s 48 of the Migration Act 1958 (Cth) ("the Act").

Background 2 The appellant is a national of Bangladesh who arrived in Australia on a student visa on 14 February 2000. A condition of that visa was condition 8105 which provided that the holder was not to engage in work other than in relation to the holder's course of study or training for more than 20 hours per week. On 1 November 2000 the Regulations were amended and cancellation of a student visa became mandatory for breach of that condition. Condition 8105 was also amended so that it did not apply where any work engaged in 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 ("CRICOS"). On 6 March 2001 the appellant was granted a third visa to which that amended condition applied. 3 Condition 8105 of the Regulations provided (in its relevant amended form): (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. Work was defined in reg 1.03 as meaning "an activity that, in Australia, normally attracts remuneration". 4 The appellant aspires to be a chef and on 15 October 2001 commenced his Certificate III in hospitality (Commercial Cookery) at the Australian School of Tourism and Hotel Management ("ASTHM"). He should have completed the course on 15 October 2002 but in fact completed it on 20 December 2002. In October 2001 the appellant broke his shoulders and was only able to complete his theory classes but not his practical classes for a period of six to eights weeks. During this time his parents supported him. The appellant deferred his studies between July 2002 and October 2002. He left Australia on 30 September 2002 and returned on 16 October 2002. 5 On 31 October 2002 the delegate issued a "Notice of intention to consider cancellation" of the appellant's visa. The notice identified possible grounds for cancellation as breaches of conditions 8105 and 8202. The appellant was given an opportunity on that day to comment on these grounds and give reasons why the visa should not be cancelled. The delegate concluded condition 8105 had been breached and was reason to cancel the visa under s 116 of the Act. This was based on a finding that the appellant had worked in excess of 20 hours a week. 6 The appellant was placed in immigration detention for ten days. On 11 November 2002 the appellant was granted a bridging visa and released from detention. The appellant had claimed that, while he had worked more than 20 hours per week, he had only been paid for 20 hours of work per week. He claimed he was working to gain "an expanded knowledge and experience at cooking to better [his] qualifications and understanding".

The decision of the Tribunal 7 The Tribunal set out the relevant sections of the Act and the Regulations and extracted parts of the appellant's submissions concerning the work he had done and the reason he had done it. It also extracted notes from the Department of Immigration and Multicultural and Indigenous Affairs file written by a compliance officer regarding the appellant's compliance with his visa conditions. The Tribunal found no breach of condition 8202. The Tribunal went on to discuss the ground upon which the visa was cancelled, namely non-compliance with condition 8105. 8 The Tribunal noted that the appellant had provided it with letters from his employer (Caesar's Café Restaurant), and his education provider, ASTHM. His education provider had said in a letter dated 9 September 2003 (though this date may be wrong by a day or so): This is to acknowledge that Mr Samsuzzaman Mohammed has successfully completed a Certificate III in Hospitality (Commercial Cookery). As part of the certificate he did 196 hours of unpaid work experience at the Parmelia Hilton and Caesar Restaurant Fremantle. His employer had said in a letter dated 7 September 2003: This letter is to certify that MR MOHAMMED SAMSUZZAMAN worked at Caesars café restaurant for the period of 10 months. MR SAMSUZZAMAN was employed on a casual basis and during this time he did work experience at different times as part of his course. As a valued worker and considering the distance he had to travel to work we decided to pay him for the hours he put in as you can see by the pay slips. These two letters were provided to the Tribunal with a letter from the appellant dated 8 September 2003. The appellant's letter was in response to an indication by the Tribunal towards the conclusion of the hearing on 7 September 2003 that, while it then thought the cancellation decision was correct, the appellant could have a further opportunity to provide material concerning when his study terms were and any other material which might establish compliance with the condition. 9 As to whether this work was beyond the ambit of subcl (1) of condition 8105 having regard to the terms of subcl (2), the Tribunal said (at [27]): However, there is nothing before the Tribunal to indicate that the work Mr Mohammedundertook 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. This is a requirement for work experience activities to be recognised for the purpose of condition 8105. See subclause 8105(2) [of the] legislation above. The Tribunal regarded the payment records from the appellant's employer as "the conclusive evidence of [his] work hours" demonstrating that on fifteen occasions he had worked in excess of 40 hours per fortnight. 10 The Tribunal found that his activities were 'work' as that term was defined in reg 1.03 whether paid or not. It concluded that he had not complied with condition 8105 and his visa was liable for cancellation pursuant to s 116(1)(b) of the Act and that under s 116(3) cancellation was mandatory. 11 On these matters, the Tribunal's full reasoning from [28] and following was: … Mr Mohammed did not complete his studies when expected and deferred his studies due to an injury. He did not complete his studies until 20 December 2002. The fifteen occasions covered by pay records before the Tribunal include December 2001 and January, February, March, April, July, August, September and October 2002. Several of these dates were within scheduled hours for his course. The Department's file has provided the Tribunal with clear evidence of his having breached visa condition 8105. The Tribunal drew this evidence to the attention of Mr Mohammed and he duplicated some of these records in his materials sent to the Tribunal after the hearing. The conclusive evidence of Mr Mohammed's work hours is in the form of payment records from his employer from December 2001 to January 2002. These records demonstrate that on fifteen occasions, he worked in excess of forty hours per fortnight. The Tribunal accepts Mr Mohammed's defence that some of these occasions were during holiday periods. However, not all of the excess hours have been explained as occurring in holiday breaks. Mr Mohammed has sought to justify his long work hours over a sustained period in the year 2002, not by denying he served long hours, but by saying he was gaining work experience and was not always paid. The Tribunal finds that Mr Mohammed's activities were 'work' according to the definition of that term in regulation 1.03 whether or not he was paid. Therefore, the Tribunal further finds that Mr Mohammed did not comply with condition 8105 of his student visa. It follows that his visa was liable for cancellation pursuant to section 116(1)(b) and that cancellation was mandatory under section 116(3) of the Act. We now consider the judgment below.

Judgment of the primary judge 12 The appellant's grounds for review in the first application were, first, that the Tribunal erred in law because it asked itself the wrong question and ignored relevant evidence, thereby falling into jurisdictional error and, secondly, the proceedings before the Tribunal were procedurally unfair. 13 In relation to the first ground, the appellant submitted the Tribunal did not deal properly with three letters forwarded to the Tribunal in support of his claim that the work undertaken by the appellant was a course requirement and that work experience was specified as a requirement of his course. The letters included the two letters set out at [8] above. The primary judge considered the content of those letters and found that they were not evidence that the work the appellant undertook was "specified as a requirement of the course". 14 The primary judge indicated it was not open to the appellant to argue that the Tribunal had asked itself the wrong question or that it had no regard to the evidence as the Tribunal had made explicit reference to the written statements (letters). His Honour indicated the Tribunal was correct in concluding those written statements (letters) did not provide evidence that the work the appellant undertook was specified as a requirement of the course. 15 Having regard to the appellant's payslips before the Tribunal from Caesar's Café Restaurant, his Honour noted the appellant's alleged work experience exceeded any amount that the condition could have permitted. His Honour then set out in tabular form various two-week pay periods between 4 December 2001 and 21 October 2002. His Honour noted that the total paid work during term time was 555.50 hours, which was beyond the figure the appellant said was attributable to work he was doing as part of his certificate and course. His Honour considered the appellant would have been in breach of condition 8105(1) because he would have worked more than 20 hours a week during any week when his course was in session. 16 His Honour did not accept the appellant's submission that the Tribunal erred in its approach by focussing on the requirements of reg 1.03 and the definition of "work". His Honour considered the Tribunal's finding that the appellant's activities were work within the meaning of reg 1.03 was a subsidiary finding incidental to it addressing the main task and found the Tribunal did not ask itself the wrong question in that respect. 17 In relation to the second ground, the appellant submitted the Tribunal failed to make inquiries to ascertain whether the work undertaken by the appellant was a requirement of the course at the time the course particulars were entered in CRICOS. His Honour held that there was no such duty to inquire. Further, the appellant submitted the Tribunal failed to give the appellant an opportunity to comment on particulars of information the Tribunal considered would form the reason or part of the reason for affirming the decision of the delegate of the Minister and that this contravened s 359A of the Act. His Honour considered there was no substance to that claim and noted that s 359A(4)(b) provides that s 359A does not apply to information the appellant gave for the purpose of the application. 18 The appellant's second application sought relief against the decision of the delegate of the Minister in relation to the determination that his application of 10 March 2003 was not a valid application because of s 48 of the Act. The appellant submitted that were he to succeed in the first application, s 48 would not have a preclusionary effect. As the appellant was not successful in the first application, his Honour dismissed the second application for review.

Legislative provisions 19 It is necessary to set out two sections which concern procedures of the Tribunal in conducting a review found in Div 5 of Pt 5. Section 357A provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 20 Section 359A provides: (1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies – by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non – disclosable information. We now turn to consider the issues raised in the appeal.

Grounds of appeal and disposition of the appeal 21 At the hearing, counsel for the appellant submitted that the appeal in relation to the first application raised two grounds. The first ground had two limbs. The first limb was that the Tribunal ignored relevant evidence and the second was that it failed to discharge its obligations under s 359A and failed to afford procedural fairness by failing to bring to the appellant's attention its view that the evidence he had furnished was deficient. The second ground was that the Tribunal had failed to satisfy itself that condition 8105(2) had no application and, in effect, it had failed to make its own inquiries. 22 The first limb concerned the statement of the Tribunal set out at [9] in which it said that "there is nothing before the Tribunal to indicate that the work Mr Mohammed undertook was specified as a requirement of the course when the course particulars were entered in [CRICOS]". It is true, as counsel for the appellant submitted, that there was material before the Tribunal that might have supported a conclusion that the work, or at least some of it, undertaken by the appellant was undertaken as a requirement of the course. The two letters set out at [8] above might support a finding to that effect. But reading this passage in the Tribunal's reasons with the generosity the law requires: see (Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259), it is tolerably clear that the Tribunal was referring to the temporal connection between the specification of a course requirement and the entry of particulars of the course on CRICOS. It can be seen from condition 8105(2) that it renders inapplicable subcl (1) to work which has two related characteristics. The first is that the work was specified as a requirement of the course and the second is that it was so specified when course particulars were entered on CRICOS. It was open to the Tribunal to say there was no material which established that temporal connection. 23 As to the second limb of the first ground, counsel for the appellant was pressed, during the course of oral argument, to identify what the "information" was that should have been brought to the appellant's attention having regard to s 359A. Ultimately, it was identified, in substance, as the Tribunal's reservations or doubts about the adequacy of the material which had been provided after the hearing (and in particular the two letters referred to at [8] above). Whatever may be the outer limits of the notion of "information" for the purposes of that section, it cannot, in our opinion, have been intended to comprehend the thought processes or state of mind of the Tribunal. Similarly, we do not accept that in the circumstances of this case the Tribunal was obliged, because of common law principles concerning procedural fairness, to draw the deficiency of the material to the attention of the appellant. He was given adequate opportunity to put to the Tribunal any material available to him. In expressing this conclusion, we are not indicating a view about the operation of s 357A and whether it would provide, in a case such as the present, any scope for the application of common law principles. It is simply unnecessary to decide that issue. 24 As to the second ground, the Tribunal was under no general duty to inquire. It was entitled to act on the material presented by the appellant which included, as the Tribunal noted, the appellant's concessions that he had worked in excess of the hours specified in the condition. While it may have been desirable for the Tribunal to have descended into a little more detail and particularity in its reasons about which of the hours worked by the appellant resulted in contravention of the condition, it was nonetheless open to it to reach the conclusion it did without seeking from the appellant (or for that matter the employer or ASTHM) further information about the hours worked and whether, and to what extent, it might have been work undertaken as a course requirement. 25 The appellant has failed to establish any error on the part of the primary Judge in the appeal concerning the first decision. Necessarily, the second appeal becomes academic. The appeals should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 8 April 2005

Counsel for the Appellant: RE Lindsay

Solicitor for the Appellant: Wojtowicz Kelly

Counsel for the Respondent: LB Price

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 21 February 2005

Date of Judgment: 8 April 2005