FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v Alam

[2005] FCAFC 132

IMMIGRATION – Appeal against decision of a Federal Magistrate setting aside a decision of Migration Review Tribunal – Cancellation of student visa – Alleged breach of condition limiting visa holder to a maximum of 20 hours non-course work per week – Meaning of ‘week’ in this context – Magistrate’s decision upheld – Comment concerning the inflexibility of the relevant regulation and the conduct of Departmental officers in relation to the interrogation and detention of respondent – Whether the Court should order indemnity costs.

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 4, 29, 41, 116

Migration Regulations 1994 (Cth), reg 2.43(2)(b), Schedule 8 clauses 8105, 8202

Bazagette v Lowe (1855) 24 LJ Ch 368 referred to

CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 cited

Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 referred to

Dunlop Perdriau Rubber Co Ltd v Federated Rubber Workers’ Union of Australia (1931) 46 CLR 329 referred to

Hope v Bathurst City Council (1980) 144 CLR 1 referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited

Scott v Sun Alliance Australia Limited (1993) 178 CLR 1 cited

Strickland v Grieve (1995) 7 BPR 14,376 referred to

Halsbury’s Laws of England, 4th Ed, Vol 45, para 1112

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v MAHABUB E ALAM

NSD 1577 of 2004

WILCOX, STONE & ALLSOP JJ

22 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed;

2.         Order 3 made by Federal Magistrate Barnes on 11 October 2004 be set aside;

3.         It be declared that the decision of the appellant’s delegate to cancel the respondent’s visa, made on 18 December 2002, is null and void;

4.         The appellant pay the respondent’s costs of the appeal and the hearing in the Federal Magistrate’s Court.

AND THE COURT DIRECTS THAT:

5.         The solicitors for the appellant bring the reasons for judgment in this case to the personal attention of the appellant at the earliest opportunity.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

WILCOX J

1                     Mahabub Alam (‘Mr Alam’), the respondent to this appeal, is a young man from Bangladesh.  He arrived in Australia as a 17 year old, on 17 April 2001.  He held a student visa issued to him by the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’).

2                     Mr Alam immediately undertook an intensive English language course at Alpha Beta Colleges.  He completed this course successfully, with a 99% attendance rate.  He then embarked on a course, at the same institution, for a Diploma of Information Technology (Network Engineering).  Although this is a nominal two‑year course, Mr Alam completed it in about seven months, graduating at Distinction level.  On 15 July 2002, only 15 months after he arrived in Australia, Mr Alam embarked on a degree course, in information technology, at Central Queensland University.

3                     From time to time, Mr Alam’s visa was either renewed or replaced by a different form of student visa.  The visa that he held on 18 December 2002 was a Higher Education Sector visa (Subclass 573) issued on 19 September 2002.  This visa was valid until 15 March 2004, by which time Mr Alam expected to have completed his degree course.

4                     It was a condition of that visa (condition 8105) that Mr Alam not engage in work in Australia (other than in relation to his course of studies) ‘for more than 20 hours a week during any week when the [relevant institution] … is in session’.

5                     Mr Alam was financially supported from Bangladesh by his father.  However, he supplemented this support by undertaking casual work, first at a take‑away restaurant and, from September 2002, at a Sydney hotel.  He complied with the 20 hours per week limitation imposed by condition 8105.

6                     Mr Alam worked at the hotel on the Friday evening of the October 2002 long‑weekend.  About the time he was due to leave, the duty manager became aware that another employee would not be reporting for work.  He asked Mr Alam to fill the gap by working on till closing time.  Mr Alam acceded to this request, no doubt thinking he was doing the ‘right’ thing by helping out his boss.  The duty manager did the ‘right’ thing by paying Mr Alam for the extra time and accurately noting that payment on Mr Alam’s payslip.

7                     Some ten weeks later, in the evening of 18 December 2002, Mr Alam was at home.  Some DIMIA officers came to his home.  They were looking for a friend of Mr Alam, Shah Nazram Alam.  The friend was at the house and made himself available to the DIMIA officers.  However, the DIMIA officers were not content with this.  They asked Mr Alam his name and inspected his passport.  They entered the house and searched Mr Alam’s room and belongings.  The officers neither sought nor obtained Mr Alam’s consent to the search.  They did not produce a search warrant.  Almost certainly, no warrant had been issued.  According to Mr Alam, the officers were ‘very rude’ to him.  During the search, they found his payslips in a drawer.  They noted the payslips relating to the first two weeks in October 2002 and apparently interpreted them as meaning that Mr Alam had breached condition 8105 of his visa; he had worked 22¼ hours in a ‘week’, rather than the permitted 20 hours.

8                     One of the DIMIA officers told Mr Alam they were taking him to the DIMIA office in Lee Street, Sydney.  Mr Alam wanted to put on a shirt, over the singlet he was wearing.  The officer refused this request.  Mr Alam, and his friend, were taken to Lee Street and made to wait.

9                     After some time, Mr Alam was taken to an interview room by a DIMIA officer who immediately questioned him about the payslips.  Mr Alam attempted an explanation.  The DIMIA officer said: ‘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’.  The officer filled out a notice of cancellation of visa and handed it to Mr Alam.  He told Mr Alam he could leave if he paid a bond of $10,000.  Mr Alam said he could not get $10,000 at that time.  [It was then about 11.00pm].  He asked permission to telephone his sister to get money.  The DIMIA officer told him he could not call anybody and took away Mr Alam’s wallet and two mobile phones.  Mr Alam was taken to Villawood Detention Centre.  He was held there for nearly three weeks, till 6 January 2003, when he was granted a bridging visa.

10                  While he was detained at Villawood, on 24 December 2002, Mr Alam applied to the Migration Review Tribunal (‘MRT’) for review of the decision to cancel his visa.  The application failed, despite the fact that Mr Alam’s employer confirmed the circumstances under which Mr Alam had worked the extra hours.  On 30 April 2003, the MRT held the effect of the legislation is ‘if a student is found working in excess of 20 hours per week during session time that their student visa will be automatically subject to mandatory cancellation’.  That statement was correct.  However, as Federal Magistrate Barnes demonstrated on review of the MRT’s decision, the MRT incorrectly interpreted the word ‘week’ in condition 8105.  Mr Alam had not breached the condition.  But he has had to spend 2½ years establishing that point.  This has been necessary to ensure he is not precluded from obtaining further Australian visas.

11                  Judges of this Court are aware, from everyday experience, of the difficulties that DIMIA officers encounter in the task they have to perform.  Visas are sometimes dishonestly obtained.  Conditions are frequently ignored.  Some offenders abscond.  Yet, making allowance for all these problems, this case raises disturbing questions. 

12                  The basic facts of the case are beyond dispute.  They depend on documents emanating from DIMIA itself, Alpha Beta Colleges or Central Queensland University.  Mr Alam’s employer confirmed the circumstances under which the extra hours were worked.  The only part of the story that depends on Mr Alam’s word is what happened on the evening of 18 December 2002.  Mr Alam set out his account of that evening in an affidavit that was read at the trial before the Federal Magistrate.  His account was not challenged by the experienced counsel who then appeared for the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’).  Nor was his account contradicted by other evidence.  It must therefore be taken to be correct. 

13                  As it seems to me, the case points up the fundamental problem about a regulation that provides a drastic, non‑discretionary penalty.  Regulation 2.43(2)(b) of the Migration Regulations 1994 (Cth) compels cancellation of the relevant visa if the Minister ‘is satisfied that the visa holder has not complied’ (amongst other conditions) with condition 8105 imposed by clause 8105 in schedule 8 to the Regulations.  No leeway is given, no discretion is conferred.  Although a cancellation decision by the Minister (or her delegate) is reviewable by the MRT, if the MRT finds there was a non‑compliance with the condition, it does not matter what was the extent of the non‑compliance or what were the relevant circumstances.

14                  The policy behind clause 8105 is readily understandable.  It is important that student visas not be misused.  It is therefore appropriate, even essential, that conditions be imposed requiring minimum standards of attendance at classes and of academic performance and limiting the hours that visa holders may engage in non-course work.  The problem does not arise at this stage, but rather in relation to the non‑discretionary enforcement of such conditions.

15                  Mr Alam had applied himself diligently and successfully to his studies.  He was aware of the 20-hour limit on outside employment and established a work pattern under which he would not have breached the limit, however the word ‘week’ might be interpreted.  He departed from that pattern in a minor way, on the Friday night of a long weekend, in order to help out his employer.  Under the mandatory cancellation regime, none of these things mattered.  As the DIMIA officer said to Mr Alam during his interrogation: ‘[I]t doesn’t matter if you work one minute extra – it is the same thing’.

16                  Concerns about this case go beyond the terms of the regulation.  They extend to the manner of its enforcement.  By what right did the DIMIA officers enter and search Mr Alam’s home and take away his payslips?  They had no search warrant.  Nothing in the Migration Act 1958 (Cth) confers on DIMIA officers such extraordinary powers.  Counsel for the Minister was unable to point us to any legislative provision authorising such conduct.

17                  Even if the DIMIA officers had power to do what they did, why did they act in such a heavy‑handed fashion?  Mr Alam’s request to be allowed to put on a shirt before he was taken to Lee Street was entirely reasonable.  Unless it was to humiliate him, what reason could the DIMIA officers have had to refuse this request?  After his interrogation, Mr Alam was informed he would be detained unless he could put up a $10,000 bond.  It was unlikely in the extreme that he was carrying that amount of money on his person, yet he was refused the opportunity of telephoning his sister for assistance.  What reason could there have been for that refusal?

18                  Australia now provides an extensive overseas student program.  The program constitutes one of our most valuable export industries.  It has enormous potential for enhancing Australia’s international reputation, especially in South East Asia.  Issue and control of student visas is an important element in that program.  Control should be firm, but it should be exercised in a fair and courteous manner.  Inappropriate regulatory provisions and heavy‑handed enforcement are likely adversely to affect our international reputation and ultimately to undermine the overseas student program itself.

19                  The circumstances I have mentioned caused the Court, at the hearing of the appeal, to raise with counsel whether costs should be ordered against the Minister on an indemnity basis if, as we then indicated was our position, we agreed with the Federal Magistrate’s interpretation of the word ‘week’.

20                  Written submissions about costs were provided.  Having taken them into account, I agree with Allsop J that we should not order indemnity costs, but only because no such order was sought at the hearing before the Federal Magistrate.  It is conceivable, although I think unlikely, that counsel for the Minister may have taken some different course at that hearing if the issue of indemnity costs had then been raised.

21                  For the reasons expressed by Federal Magistrate Barnes, and endorsed by Allsop J, I agree that the MRT erred in holding Mr Alam had contravened condition 8105 of his visa. 

22                  I agree with the orders proposed by Allsop J.

Associate:

Dated:              22 July 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Stone J

23                  The respondent, a citizen of Bangladesh, first came to Australia on a student visa on 17 April 2001.  Since then he has had a series of student visas granted; first on the basis of his enrolment at Alpha Beta Colleges, and then at the Central Queensland University where he was studying towards the award of a Bachelor of Information Technology.  On 18 December 2002, a delegate of the appellant purported to cancel the respondent’s student visa because he had allegedly exceeded the maximum number of hours of work permitted under his visa. 

24                  The circumstances in which the respondent’s visa was cancelled give rise not only to a question of the correct construction of a condition of his student visa but also to concern as to the way in which employees of the Department of Immigration and Multicultural and Indigenous Affairs (‘Department’) conducted themselves and dealt with the respondent.  The delegate’s decision was affirmed by the Migration Review Tribunal (‘Tribunal’) on 30 April 2003.  On 11 October 2004 a Federal Magistrate made orders declaring that the Tribunal’s decision was invalid, quashing the Tribunal’s decision and requiring the Tribunal to redetermine the matter according to law.

25                  The respondent’s unchallenged account of the circumstances leading to the cancellation of his visa is contained in an affidavit affirmed by the respondent on 4 February 2004.  The respondent’s account remained unchallenged despite an express invitation to the appellant to explain the events to this Court by way of supplementary submissions.  The affidavit states:

‘1.       In the evening of 18 December 2002, DIMIA officers came to my house looking for one of my friends, Shah Nazran Alam.  He was at the house.  They asked my name and I told them.  I also gave them my passport.

2          The DIMIA officers entered my house.  They were very rude.  They searched my belongings and room without showing me a warrant.  They found my payslips during the search in one of my drawers.  I did not agree to them searching my belongings or my room.

3          I was kept in my house by the DIMIA officers for about an hour.  I was then told to go with them.  I had a singlet on.  To the best of my recollection, the following words or words to the following effect were said:

Me: Can I put a shirt on.

DIMIA: No. You look fine.

I was taken to the Lee Street office of DIMIA. I was made to wait again, in a room.  Mr Shah Alam was also taken to Lee Street.

4.      After waiting in a room at Lee Street with Mr Shah Alam, a DIMIA officer came and asked me to go with him.  I went with him to a desk.  I remained standing.  To the best of my recollection, the following words or words to the following effect were said:

DIMIA: Why did you work more than 20 hours in a week.  You have breached your visa conditions. Your payslip says you worked two hours more than allowed.  Why did you breach conditions.

Me: No I am sure 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.  It [sic] 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.

5.       While I ask [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.

6.       After I signed the forms, to the best of my recollection, the following words or words to the following effect were also said:

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)

Me: I know other people who work at the pub and they work more than 20 hours a week, why have you taken me.

DIMIA: If you tell me about the others, it will be in your favour.

Me: They are Mr … and Mr ….  They are from Nepal.

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.

7.       Because I could not pay the bond, I was taken to Villawood and locked up.  I am very upset at the way I have been treated.’

26                  At the time of the events described above, the respondent’s visa was a Higher Education Sector visa (Subclass 573) granted on 19 September 2002.  It was subject to a condition imposed by clause 8105 of Schedule 8 to the Migration Regulations 1994 (Cth) (‘Migration Regulations’).  The condition was in the following terms: 

‘(1)      Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours per 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 Institution and Courses for Overseas Students.’

27                  In supplementary written submissions the appellant pointed out that both parties, the Tribunal and consequently the Federal Magistrate had mistakenly referred to an earlier version of condition 8105 which did not apply to the respondent’s visa.  Both versions restrict the holder to working not more than 20 hours ‘during any week’.  However, under the version relied on by the Tribunal and the Federal Magistrate the restriction applied when ‘the institution at which the holder is studying is in session’ rather than when ‘the holder’s course of study or training is in session’ as in the correct version.  The parties accepted that, as the issue in this appeal is the meaning of ‘week’, the error was of no consequence although the appellant submitted that the correct version fortifies the appellant’s submissions.

28                  The Migration Act 1958 (Cth) (‘Migration Act’) and Migration Regulations together provide that the Minister must cancel a visa if the holder breaches condition 8105; Migration Act, ss 116(1)(b) and (3), Migration Regulations,para 2.43(2)(b).  It was an alleged breach of condition 8105 that led to the cancellation of the respondent’s visa.  In particular it was claimed that the respondent had worked more than the permitted weekly maximum of 20 hours during the week ending on Tuesday 8 October 2002.  At this time, although supported financially by his father and brother, the respondent supplemented the income provided by his father by working part-time in a Sydney hotel.  He was working at the hotel over the October long weekend in 2002 and apparently was asked to work extra hours as one of the other employees had not turned up for his shift.  The respondent worked 2.25 hours beyond his shift and was paid for the additional work.  It was not in dispute that the respondent had worked these additional hours nor that in the seven days ending on Tuesday 8 October he had worked in excess of 20 hours.  However if the relevant ‘week’ ended on either Saturday 5 or Sunday 6 October rather than the Tuesday, the appellant would not have exceeded the statutory maximum of 20 hours. 

29                  At [47] of her reasons, the Federal Magistrate described the basis on which the Tribunal found there had been a breach of condition 8105:

‘In finding that there was a breach of condition 8105 the Tribunal relied upon the pay slips of the applicant.  These pay slips revealed that his pay periods were calculated on a seven-day basis and that he was paid for a weekly pay period that ended on a Tuesday. … There was no consideration either by the delegate or by the Tribunal of any other period.  Subject to what is said below in relation to the institution being in session, in effect the Tribunal has construed condition 8105 as being breached if, in any seven day period, a visa holder subject to that condition worked more than 20 hours.’

30                  In construing the meaning of ‘week’ her Honour referred to the different meanings that the word may bear, quoting, in part, the following comments of Dixon J in Dunlop Perdriau Rubber Company Limited v Federated Rubber Workers’ Union of Australia (1931) 46 CLR 329 at 341:

‘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.’

31                  Her Honour, relying on Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 (‘Agfa-Gevaert’), noted that it was necessary to construe the words in condition 8105 having regard to the context and the subject matter of the condition.  Her Honour took into account the starting and ending times for the session and course in which the respondent was enrolled, the purpose of the condition, which she described as reflecting a balance between restricting work during the session and allowing unlimited work at other times, and the ‘potentially draconian consequences’ of a breach of the condition.  In stating her view as to the correct construction of condition 8105, her Honour said:

‘Hence, for the purposes of considering whether a particular applicant complied with the condition when attending an institution, the words, ‘week when the institution is in session’ must be intended to refer to the week commencing on the day that each session commences.  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.’

32                  The Federal Magistrate concluded that on this construction of the condition the appellant would have worked less than 20 hours in the relevant week and therefore it would have been open to the Tribunal to conclude that there had been no breach of condition 8105.  Her Honour held that the Tribunal had made a jurisdictional error and ordered that the matter be remitted to the Tribunal for redetermination.

This appeal

33                  At the hearing of the appeal both parties agreed that the only issue in the appeal is the meaning of the word, ‘week’ in the context of condition 8105.  The appellant contended that ‘week’ in condition 8105 refers to ‘any period of seven consecutive days’.  In written submissions the appellant made a number points with which I agree and which I note are not inconsistent with the views expressed by the Federal Magistrate and advocated by the respondent.  These propositions, which are supported by authorities referred to by the appellant and the respondent, are as follows:

·        The word week can have a variety of meaning depending on context; Dunlop Perdriau Rubber Company Limited v Federated Rubber Workers’ Union of Australia (1931) 46 CLR 329 at 341 per Dixon J; Scott v Sun Alliance Australia Limited (1993) 178 CLR 1 at 9; Strickland v Grieve (1995) 7 BPR 14,376 at 14,380.

·        In construing condition 8105 it is necessary to have regard to the context and purpose of the Migration Regulations and the statutory regime set up by the Migration Act; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2.

·        The object of the Migration Act is to regulate the entry and presence of non-citizens in Australia in the national interest by the provision of visas and the conditions which attach to those visas; ss 4, 29, Migration Act.

·        The conditions attached to visas may include restrictions on the right of the visa holder to work in Australia and condition 8105 is such a condition; s 41(2)(b), Migration Act.

·        One of the purposes of imposing a work limit of 20 hours per week is to ensure that a person undertaking a full-time course of study is not distracted by excessive work while the course or institution is in session.

·        The reference in condition 8105 to ‘any week’ shows that the intention was to restrict the right to work in the period bound by the beginning and end of the particular session so the ‘week’ in question must be within that relevant period.

34                  However the appellant also made the following submissions, which distinguish its position from the respondent’s:

‘It does not necessarily, or even naturally, follow that the week in question must commence on the day on which the session commenced.  The word “any” which qualifies “week” is inconsistent with that conclusion. … Her Honour’s construction of the condition (as well as those proffered by the respondent before her) would extend that restriction beyond the end of the session.  For example, if classes start on a Monday and end on a Friday, work on the Saturday or Sunday following the end of the session would be within the restriction even though they were, on any sensible construction, outside the period during which the institution was in session.  For this reason, her Honour’s construction could not serve the purpose of the condition and does not sit with the scope and context of the Act.

There is no reason, on the application of proper principles, to give the condition a beneficial construction simply because of the consequences of failure to comply with that condition.  It is a condition imposed upon the grant of a visa and one to which the respondent must be taken to have agreed to comply with upon making his application for that visa.

…Further given that the requirements of courses may vary but that the imposition of the condition is uniform in its terms there is no reason to conclude that there was an intention in the drafting of the condition to make the condition flexible upon the starting time of the particular course being undertaken.’

35                  The appellant concluded that the better view is that ‘week’ relates to any period of seven days while the relevant course is in session and therefore the Tribunal’s decision was correct.

36                  While the appellant recognises the ambiguity inherent in the word, ‘week’ and accepts that it must therefore be construed in the context of the Migration Act and Migration Regulations, the appellantfails to adopt this approach.  Although submitting that ‘week’ meant any seven-day period, the appellant was not advocating that the Department had complete freedom to select any and different periods of seven days in examining a visa holder’s work record.  For instance, it was not submitted that the Department could select, at large, any seven days so that, for instance, one week might run from Monday to Sunday and another from Wednesday to Tuesday.  Similarly, the appellant did not submit that the seven days should be a moving block of seven days.  On the contrary the appellant submitted that ‘week’ should be understood in the context in which a visa holder was employed and accepted the Tribunal’s approach which was to rely on the fact that the respondent’s pay slips showed that his pay periods were calculated with respect to the seven days from Wednesday to Tuesday, in particular from Wednesday 2 to Tuesday 8 October 2002. 

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.

39                  Finally I should say that I completely agree with the sentiments expressed by Allsop J concerning the treatment apparently afforded to the respondent by the Department’s officers.  Such behaviour is unnecessary and must give rise to a legitimate grievance on the part of the respondent.

40                  For these reasons the appeal must fail and the appellant must bear the costs.  Although the respondent’s evidence as to the events of 18 December 2002 was not challenged, the question of indemnity costs was not raised before the Federal Magistrate and only arose on appeal after the issue had been mentioned in discussion between the Court and counsel for the parties.  In the circumstances I do not think it is appropriate to pursue the issue.  I therefore agree with the orders proposed by Allsop J.

Associate:

Dated:              22 July 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

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 ¼  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 22¼ 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.

Associate:

Dated:              22 July 2005