CATCHWORDS

 

 

 

 

IMMIGRATION LAW - Whether applicant complied substantially with visa conditions prohibiting performance of "work" in Australia - whether voluntary activity as a graphic artist was "an activity that, in Australia, normally attracts remuneration" - factors relevant to determining whether the applicant "complied substantially" with the condition.

 

 

ADMINISTRATIVE LAW - Error of law - evidence to justify decision.

 

 

WORDS AND PHRASES - Migration (1993) Regulations - "complied substantially", "work".

 

 

 

Migration Act 1958 (Cth), ss 476(1), (4)

Migration (1993) Regulations, regs 1.3 "work", 414.12, 414.72, 670.34, 9101.

 

 

 

 

 

 

Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) 21 FCR 472.

Braun v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 152.

Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50.

Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349.

Re Sekido, unreported, Immigration Review Tribunal, 6 March 1992.

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363

 

 

 

 

MYEONG IL KIM v RON WITTON (PRESIDING MEMBER OF THE IMMIGRATION REVIEW TRIBUNAL) & ANOR

NG 702 of 1994

 

 

 

 

Sackville J.

Sydney

31 August, 1995

 

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 702 of 1994

GENERAL DIVISION                  )

 

 

 

                        BETWEEN:

 

                             MYEONG IL KIM

 

                             Applicant

 

                        AND:

 

                             RON WITTON (PRESIDING MEMBER OF IMMIGRATION REVIEW TRIBUNAL)

 

                             First Respondent

 

                        AND:

 

                             MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                             Second Respondent

 

                            

CORAM:    SACKVILLE J.

PLACE:    SYDNEY

DATE:         31 AUGUST 1995

 

 

 

 

                      MINUTES OF ORDER

 

 

 

THE COURT ORDERS THAT:

 

1.   The application be dismissed with costs.

 

 

 

 

 

 

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

 

 

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. NG 702 of 1994

GENERAL DIVISION                  )

 

 

 

                        BETWEEN:

 

                             MYEONG IL KIM

 

                             Applicant

 

                        AND:

 

                             RON WITTON (PRESIDING MEMBER OF IMMIGRATION REVIEW TRIBUNAL)

 

                             First Respondent

 

                        AND:

 

                             MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                             Second Respondent

 

                            

CORAM:    SACKVILLE J.

PLACE:    SYDNEY

DATE:         31 AUGUST 1995

 

 

 

                    REASONS FOR JUDGMENT

 

The Proceedings

The applicant is a Korean national aged 46.  In Korea he was a cartoonist and illustrator of some note.  On 7 January 1993 the applicant received a Class 670 (tourist (short stay)) visa, valid until 7 January 1994 for multiple travel.  The visa operated as a temporary entry permit for a stay of three months on each entry to Australia.  The entry visa was endorsed on the applicant's passport and referred to a number of conditions, including "NO WORK" and "NO RESIDENCE".

The applicant entered Australia on 9 February 1993 and left on 8 May 1993.  He returned on 10 May 1993 and departed on 8 August 1993.  His most recent arrival in Australia was on 11 August 1993, and it appears that he has remained in this country since that date.   On 21 October 1993 the applicant applied for a Class 417 (working holiday) entry permit (after entry).  Since the applicant was clearly ineligible for this permit by reason of his age, the Department treated his application as one for a Class 414 (specialist overseas) entry permit (after entry).

 

In these proceedings the applicant seeks review of the decision made by the first respondent, a Presiding Member of the Immigration Review Tribunal, on 29 August 1994.  The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Ethnic Affairs to refuse the application for a Class 414 entry permit.  The key issue in the proceedings before the Tribunal was whether the applicant had complied substantially with a condition of his Class 670 visa which prohibited him from performing work in Australia without the written permission of the Secretary.  It was common ground that no written permission had been granted.

 

Ms McCallum, who appeared for the applicant, limited her argument to two grounds:

 

l    First, that the Tribunal had erred in law by incorrectly construing the phrases "work" and "complied substantially", as employed in the Migration (1993) Regulations.

l    Secondly, that there was no evidence to justify the Tribunal's conclusion that the applicant had worked in breach of his Class 670 visa.  Nor was there evidence to justify the conclusion that the applicant had not "complied substantially" with the conditions of his visa.

 

Although the application referred to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), Ms McCallum relied on the grounds for judicial review specified in s.476(1) of the Migration Act 1958 (Cth) (as amended in 1994).  Ms Henderson, who appeared for the Minister, did not dispute that it was open to the applicant to seek review of the Tribunal's decision in this Court under the provisions of the Migration Act 1958.  Section 476(1) authorises an application for review to the Court on the grounds, inter alia, that the decision involved an error of law (s.476(1)(e)), or that there was no evidence or other material to justify the making of the decision (s.476(1)(g)).  Section 476(4), which is equivalent to s.5(3) of the AJDR Act, provides as follows:

 

     "476(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

 

     (a)  the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from whic` the person could reasonably be satisfied that the matter was established; or

 

     (b)  the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

 

 

As was pointed out by Mason C.J. in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 357, the effect of s.5(3) of the ADJR Act is "to limit severely the area of operation of the ground of review in s.5(1)(h) [equivalent to s.476(1)(g) of the Migration Act 1958]". 

 

The powers of the Court on an application for review of a decision of the Tribunal are specified in s.481(1) and include making an order affirming, quashing or setting aside the decision.

 

The Regulations

The prescribed criteria for a Class 414 visa and entry permit are specified in Chapter 2.1, Part 414 of Schedule 2 of the Migrant (1993) Regulations.  The purpose of the grant of such a visa and entry permit is (reg. 414.12):

 

     "To authorise travel to, and temporary residence in, Australia by certain persons having work skills not readily available in Australia."

 

 

 

The criteria for a specialist (overseas) entry permit (after entry) are specified in Part 414.7.  The relevant provisions of this Part are as follows:

 

 

     "414.72   Criteria to be satisfied at time of application (entry permit - after entry)

 

     414.721   The applicant is:

 

          (a)  ...; or

          (b)  the holder of an entry permit of any of the following groups:

 

              (i)  ...;

              (ii) ...;

              (iii) Group 2.4 (visitor (short stay));

              ....

             

     414.722   The applicant has complied substantially with the conditions to which the entry permit or visa (if any) held, or last held, by the applicant is, or was, subject.

 

 

     414.73    Criteria to be satisfied at time of decision (entry permit - after entry)

 

              ...

 

     414.733   The applicant continues to satisfy the criteria specified in clauses 414.722 to 414.724."

 

 

The applicant must satisfy all criteria in order to succeed in obtaining an entry permit.

 

The entry visa held by the applicant was subject to a "mandatory condition" imposed by reg.670.34, which is found in Chapter 2.4, Part 670 of Schedule 2, as follows:

 

     "9101.  The holder must not perform work in Australia without the permission in writing of the Secretary".

 

 

 

"Work", in relation to a Group 2.4 (visitor (short stay)) visa, is defined in reg.1.3 to mean

 

     "an activity that, in Australia, normally attracts remuneration".

 

 

 

 

Background

The applicant submitted a resume in support of what was treated as his application for a Class 414 entry permit.  The resume attached three references.  One was from the New South Wales Department of School Education:

     "This is to confirm that Mr Kim, Myeongil's graphic art work has beef used in the Korean Using Innovative Technology project - an initiative funded by the NSW Department of School Education to introduce Korean, one of the 12 priority languages, into NSW government schools using interactive communications technologies.

 

     The project sought to identify a Korean national with experience in the preparation of graphic artwork for the curriculum support material.  It was necessary to find a Korean national to ensure that the materials had an authentic feel and were culturally appropriate.  The graphic artwork is an essential component of the materials.  Mr Kim is the only person with the necessary experience that the Department has been able to locate.

 

     Because of the importance of the project to the Korean community Mr Kim offered to produce some initial graphics on a voluntary basis.  The material produced has been used in the student workbooks, for posters, computer graphics and readers.  The quality of the work is exceptional and has been highly praised by the teachers involved in the pilot.

 

     The pilot is due to finish in June 1994 but there is some likelihood of an extension to develop materials for students K-12 for Korean.  The Department would like to be in a position to employ Mr Kim periodically on a casual basis for the length of the pilot and perhaps beyond.

 

     Korea is a nation of increasing economic importance to Australia both in terms of export markets and tourism.  There are only 6 schools teaching Korean in NSW at the moment but this number is likely to increase rapidly over the next few years.  The materials produced by the Korean Using Innovative Technology project are currently the only suitable materials available in Australia for the teaching of Korean to non-background speakers."

 

 

Although undated, I infer that the reference was written in or about October 1993.  The other two references were provided, respectively, by The Sydney Weekend, a Korean community magazine, and the Korean Society of Sydney Australia.

The applicant's application for a Class 414 entry permit was rejected by the Minister's delegate.  In his application to the Tribunal for review of the decision, the applicant stated that his main reason for disagreeing with the decision was that

 

     "...I worked on a voluntary basis in Australia.

 

     If it was a work, it should have attracted some kind of wage or salary.  There is no such an evidence or clue at all.  Yes I helped Department of School Education on a particular project.  They were looking for Korean Cartoonist through the Korean Society of Sydney, Australia.  They wanted me to draw some cartoons of Korean style.  They paid me very small money for my cartoons, neither as a wage nor a salary.

 

     It was no more than repaying for pencils, papers, inks, paintbrushes, cigarette for mental relief, transportation and etc.

 

     If it is formally defined work, I wonder why I am the only one to blame."

 

Although the Tribunal made no specific findings as to the time during which the applicant performed activities (to use a neutral term) for the Department of School Education, the applicant gave evidence before the Tribunal that his involvement commenced in March 1993 and lasted for about 28 weeks.  During that period, work was available in about 14 or 15 weeks and the applicant spent two or three days in each of those weeks on the project.

 

The Tribunal's Decision

After dealing with the background to the application for review and setting out the relevant parts of the Regulations, the Tribunal gave reasons for affirming the delegate's decision.  It is convenient to set out those reasons:

     "EVIDENCE AND FINDINGS

 

     ...

 

     The entry visa in the Applicant's passport bears the short form notation 'No work' and at the hearing the Applicant stated that he was well aware of this restriction.

 

     ...

 

     [D]ocumentation in the file reveals that, while he held the entry permit, the Applicant worked on a NSW Department of School Education Korean language learning project.  In his written submissions to the Tribunal Mr Kim maintains that his activities were not in breach of his entry permit as he was in effect paid very little for his work.  As he put it in his IRT application 'It was no more than repaying for pencils, papers, inks, paintbrushes, cigarette for mental relief, transportation and etc.'  In a letter to the Tribunal dated 14 July 1994, Howard Jacobs, Senior Policy Officer of the NSW Department of School Education, stated that the Applicant:

 

          '...received some remuneration for his work drawing cartoon material for the Korean project.

 

          He commenced this work in a voluntary capacity some time after the commencement of the project in February 1993.  (I have no record of the exact date, but I believe it was some time in April or May.)  However, during the period from July 1993 to May 1994 payments were made for the production of materials including posters, colour and line drawings.  The total amount was $3,306.'

 

     In addition, there is a reference, dated 19 October 1993, from a Korean community magazine, The Sydney Weekend, stating that the Applicant 'has been engaged in voluntary work with us for past 6 months.  His major role includes graphics art and other related work.'  There is also a reference from Mr Bae Kun Lee, President of the Korean Society of Sydney Australia, dated 21 October 1993, which states that the Applicant 'contributed to my election campaign team.  With his help, I have been successfully elected as The President of the Korean Society of Sydney Australia.  His job consisted of mainly information finding and art work for the campaign, I as well as other members who worked with him found that his technique in graphic art work was excellent and valuable for the campaign'.

 

     At the hearing the Tribunal took evidence from the Applicant with particular regard to clause 414.722.  The Applicant was very forthright in his evidence stating that the work he performed was 'voluntary' and the only payment he received was to compensate him for materials used.  He stated that with regard to the NSW Department of School Education project, he assumed that work performed at the invitation of a government department must imply that the 'government' had the power to override the work restriction on his entry permit.  He stated to the Tribunal that he now realises that there are different governments in Australia and that he was helping a State government in contrast to the Federal Department of Immigration.  He stated that the work he did for The Sydney Weekend was essentially allowing them to use material he had previously published in Korea.

 

     The question before the Tribunal is whether the Applicant has complied substantially with the condition of his entry permit not to work....

 

     The phrase 'complied substantially', as noted in Re Sekido (IRT Decision 760, 6 March 1992), can have a variety of meanings.  Whether a person can be regarded as having 'substantially complied' with a condition is not only a quantitative matter, or question of proportionality, but also a qualitative matter which may concern factors such as the bona fides of the Applicant, so that a person who has sought to comply with the condition but made an innocent error or was thwarted from complying with the condition through no fault of his or her own may be said to have 'substantially complied' with the condition as distinct from a person who knowingly disregards the condition.  Whether the condition in question can be regarded as going to the essential nature of the visa or entry permit in question will also be relevant.

 

     The Tribunal in considering these matters has been guided by two federal court decisions.

 

     The first is Broussard v Minister for Immigration, Local Government and Ethnic Affairs (1989) [21 FCR 472] where Gummow J. states, at [475-476] in discussing a situation where there is 'the absence of a wage or salary in the ordinary sense of that term':

 

 

          'as the definition of 'employment' in the Oxford English Dictionary (2nd ed, 1989) shows, the ordinary usage of that term includes a business or an occupation.  In my view, the sense of the condition imposed in this case pursuant to section 6(6) of the Act is that the holder of the temporary
entry permit is prohibited, without written permission from an authorised officer, from engaging in employment, not only in the sense of regular employment as a member of the general workforce, involving receipt of a wage or salary, but also in the sense of pursuit of any business or occupation. ...Further, in my view, to engage in one's regular occupation is to work, whether or not one's labour is in return for a wage or salary in the ordinary sense.'

 

     The second is Braun v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 152 where French J., at 156, states in discussing the case of a Miss Braun who had worked as a cook in a voluntary capacity, that:

 

          '...the activity in which she was engaging was work within the meaning of the definition in regulation 2 (of the Migration Regulations, which was in similar terms to the definition in regulation 1.3 of the current Regulations...).  That it was without remuneration does not take it outside that category.  It is necessary and sufficient that it be an activity which normally attracts remuneration.'

 

     On 15 August 1994, the Applicant's adviser sent the following submission:

 

          'I do not want to deny that Mr M I Kim has worked.  However I would like to stress on 'Who initiated the work?'. Mr M I Kim explicitly informed to the Department of School Education that he did not have the required work visa.  There has been no warning, and moreover he has been remunerated by a legally authorised branch of Australian government.  Even he was given a positive implication of obtaining the work visa.

 

          If we assume that he didn't make such a minor simple mistake, then we know, Mr M I Kim is well talented and qualified enough to get a specialist visa under sponsorship.  If he had known this a bit earlier, what do you think he would have done?

 

          Now let me talk about 'How severe impact has his work done to Australia?'.  The work was neither a permanent job, not suited to an Australian citizen or resident.  It was one that definitely needed an experienced Korean
cartoonist.

 

          Along with the minor damage, I would like you to see the greater benefit he would bring to Australia.  He will be the key person who can stop plagiarising the cartoons in some Korean Community Journals.  Can you imagine this benefit in monetary term?

 

          I wish the Australian law system would see things in their right perspective's.'

 

     In the light of the observations on the nature of work as defined in the Regulations and as analysed in the above judgments, the Tribunal finds that the Applicant has worked while holding an entry permit that prohibited work and so must find that the Applicant has not complied substantially with the conditions attached to the grant of his previous entry permit.  As a consequence regulation 414.722 is not satisfied.

 

     The Applicant accepts that he has worked but argues that he has 'substantially complied' with the condition because he worked for a government department. The Tribunal is unable to accept this contention, however, since in this case the breach of the 'no work' condition goes to the essential nature of the entry permit.  The Applicant came to Australia as a tourist and was granted an entry permit with conditions reflecting that status.  For him to work under these circumstances is quite inconsistent with the character of the entry permit he held and therefore cannot be regarded as substantial compliance.

 

     ...

 

     DECISION

 

     The Tribunal affirms the decision under review refusing the grant of a Class 414 (specialist (overseas)) entry permit (after entry) to the Applicant."

 

 

 

 

The Applicant's Submissions

The arguments put forward by both Ms McCallum and Ms Henderson concentrated on the applicant's activities on behalf of the Department of School Education, rather than on his other activities.  Ms McCallum first submitted that the Tribunal had erred, because it had assumed that a person who undertakes any of the activities usually performed by members of his or her trade or profession performs "work" within the meaning of the definition in reg. 1.3.  Ms McCallum pointed out that in Braun v Minister, at 156, French J. had recognised that activity of a domestic or social character might well not be within the definition, even if the activity is one for which the individual ordinarily receives payment.  She contended that the Tribunal had completely failed to evaluate the circumstances to determine whether, "in the circumstances peculiar to the applicant", the activity undertaken by him "normally attracts remuneration".

 

Ms McCallum also submitted (although perhaps as a variation of her principal argument) that a person who voluntarily undertakes an activity, albeit on a regular basis over a period of months, in response to a request to perform the activity in the interests of the community, cannot be said to perform an activity that, in Australia, normally attracts remuneration.  In her submission, the condition attached to the tourist (short stay) visa was not intended to proscribe voluntary work for the public benefit.

 

Ms McCallum accepted that the test of "substantial compliance" was correctly stated in the passage from Re Sekido, summarised in the Tribunal's reasons.  However, she contended that the Tribunal had applied a test of strict compliance, rather than considering the particular circumstances of the case.  These circumstances included the fact that the applicant had acted
honestly and had been prevented from complying with the conditions through no fault of his own.

 

Ms McCallum pointed out that there was nothing to suggest that the applicant had acted in flagrant disregard of the terms of his visa.  Nor had he misled the Department of School Education as to his status.  His own evidence was that he did not think what he was doing was work and that he was happy to act on a "voluntary" basis.  The Department had invited him to perform the graphic artwork required for its project and he had responded to that request.  Accordingly, she contended that there was no evidence to justify the making of the decision that the applicant had not "complied substantially" with the conditions of his Class 670 entry visa.

 

 

Voluntary Activities

Ms McCallum's submissions assumed that the evidence before the Tribunal showed that the applicant provided graphic artwork for the Department on a voluntary basis and that the only payments received by him were by way of reimbursement for materials.  Because Ms McCallum emphasised this point, it is appropriate to say something about it.

 

The Tribunal's reasons record that:

     "The applicant was very forthright in his evidence stating that the work he performed was 'voluntary' and the only payment he received was to compensate him for materials used."

 

 

 

The Tribunal made no explicit finding that this statement was accurate.  The evidence before the Tribunal was equivocal as to the nature of the payment received by the applicant.  The letter of 14 July 1994, from Mr Jacobs of the Department of School Education, stated that payments "were made for the production of materials including posters, colour and line drawings".  This language does not suggest that the sum of $3,306 was purely to reimburse expenses.  (Assuming that the applicant worked an average of two and a half days for 15 weeks, the payment is equivalent to approximately $88 per day.)  The applicant in his evidence said that he thought the payment was "remuneration for the material, drawing pens, paper, colour, something like that." Later in his evidence, however, he acknowledged that Mr Jacobs had asked him how much it would cost to perform the tasks and that he (the applicant) had nominated a figure around the amount ultimately paid.  The applicant denied that the amount included money for his own time.  In his application for review of the delegate's decision, the applicant said

     "they paid me a very small money for my cartoons, neither as a wage nor a salary....  It was no more than repaying for pencils, papers, inks, paint brushes, cigarettes for mental relief, transportation and etc."

 

 

In the absence of a specific finding in the reasons, I think that the Tribunal should be taken to have accepted that the applicant had voluntarily undertaken the activities and had received the sum of $3,306 as reimbursement for expenses of the kind identified by the applicant (although, on the evidence, the expenses were clearly not confined to the cost of materials).  
That the Tribunal accepted this proposition seems to me to follow from the Tribunal's reference to the applicant's evidence as "forthright" and the absence of any analysis of evidence that might have been thought to contradict or modify the applicant's account.  Ms Henderson did not suggest that it was not open to the Tribunal to reach this conclusion.  I shall proceed, therefore, on the basis that Ms McCallum correctly assumed that the Tribunal had accepted that the applicant undertook his activities voluntarily and received only reimbursement for expenses. 

 

The Test Applied by the Tribunal

Ms McCallum frankly accepted that the Tribunal had not explicitly formulated or applied a test to the effect that a person who undertakes activities normally performed by members of his or her trade or profession necessarily performs "work" within the definition of reg.1.3.  Nonetheless, she contended that it should be inferred from the Tribunal's reasons that this was the test applied.  Ms McCallum argued that the passages cited by the Tribunal, especially the observations of Gummow J. in Broussard, demonstrated that the Tribunal did indeed apply such a test.

 

In my opinion, this is neither a fair nor appropriate reading of the Tribunal's reasons.  There was no suggestion before the Tribunal that the applicant had engaged in purely domestic or social activities.  Neither the applicant nor his adviser disputed that the applicant had "worked" (although not necessarily in the sense in which the term is used in reg.1.3.). Rather, they emphasised that the work was voluntary and that the applicant had not seen his activities as being in breach of the condition. 

 

Ms McCallum is clearly correct in submitting that the approach taken by or on behalf of the applicant did not relieve the Tribunal from its obligation to apply the correct test to the facts of the case.  But the approach taken by the applicant serves to explain why the Tribunal thought it appropriate to refer to Broussard.  That case was decided before the current definition of "work" was inserted into the regulations.  Gummow J. held that a priest had engaged in "employment", in contravention of the conditions attached to his visa, where he had pursued his regular vocation, notwithstanding that he had received no regular wage or salary.  The passage from Broussard was cited by the Tribunal (as the words in the reasons preceding the extract demonstrate) because it was thought to bear on the applicant's case.  The applicant's contentions emphasised that he had undertaken activities associated with his regular occupation, but without receiving a wage or salary in the ordinary sense.  The reference to Broussard does not, in my opinion, demonstrate that the Tribunal was applying the test attributed to it by Ms McCallum.  Similarly, the Tribunal referred to Braun, which was a case decided on the present definition of "work", in order to show that the absence of remuneration for an activity does not necessarily mean that the activity is not one "which normally attracts remuneration".

 

Nor do I think it correct that the Tribunal failed to consider the circumstances in which the applicant performed his activities, in particular those performed for the Department of School Education.  The Tribunal quoted from information provided by the Department and referred specifically to the evidence given by the applicant himself as to the circumstances in which he undertook the activities for the Department.  The conclusion that he performed an activity that, in Australia, normally attracts remuneration, was based on a consideration of his specific circumstances.

 

Work

The more substantial question raised by Ms McCallum is whether the evidence, or other material, before the Tribunal justified the conclusion that the applicant had undertaken an activity that, in Australia, normally attracts remuneration.  In this connection no issue was taken by Ms Henderson as to whether the question was one of law: cf Braun at 156.

 

The background to the introduction of the definition of "work" into the regulations in September 1991 was explained by French J. in Braun, at 155-156.

 

     "This definition was only introduced into the Regulations on 17 September 1991, apparently as a consequence of the decision of the Full Court of  the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50.  Prior to 17 September, the term 'work' had not been defined in the Act and was to be treated as a word of common usage to be accorded its ordinary meaning.  The dictionary meaning of the word accepted by the Full Court was expressed in terms of exertion: 'exertion directed to produce or accomplish something;
labour; toil and employment; a job, especially that by which one earns a living'.  The Full Court observed [at 58] that:

 

          'It is a term which frequently connotes activity of the mind or body undertaken in exchange for monetary reward, and may aptly be used to describe a person's occupation or employment, which, again, will usually be pursued by that person for monetary reward.  The payment of a monetary or other material benefit will be a strong indication that the activity undertaken is 'work'.  But monetary reward is not a necessary component of 'work' which has a wider meaning in the Act.: see Broussard'

 

     At the time that Miss Braun's tourist entry permit issued, the construction to be applied to the word 'work' was that consistent with its ordinary English meaning and that construction, as is apparent from the dictionary meaning to which I have referred and the passage cited from Montero (supra), was wider than the new definition.  The definition that now applies under reg 2 has the rider that it is activity that 'normally attracts remuneration'".

 

 

The definition of "work" employs the word "activity".  This is a word of wide import.  The dictionary definition includes

 

     "1.  the state of action; doing....

      3.  a specific deed or action; sphere of action...."

      (Macquarie Dictionary.)

 

However, as French J. pointed out in Braun, it is not enough to constitute "work" that a person engage in an activity.  It must be an activity that "in Australia, normally attracts remuneration".  The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial motives or for some other reason.  The test to be applied is an objective one, namely whether the "activity" performed by the individual normally
attracts remuneration in Australia.

 

Of course, in any given case, it is necessary to identify the "activity" performed by the individual in order to determine whether it is one that normally attracts remuneration in Australia.  Ms McCallum characterised the activity performed by the applicant as voluntary assistance in a project of benefit to the community.  Such activity, on Ms McCallum's argument,  does not normally attract remuneration in Australia.

 

The difficulty with this approach, in my view, is that it focuses on particular aspects of the arrangement between the applicant and the Department, particularly those relating to remuneration, rather than on the nature of the activity performed by the applicant.  The activity performed by him was the preparation of graphic artwork on behalf of an educational authority.  The evidence before the Tribunal showed (as might have been inferred, even without specific evidence) that the Department was prepared to pay a person to undertake the very tasks performed by the applicant.  As the Department's reference specifically said, it wished "to employ [the applicant]periodically on a casual basis for the length of the project and perhaps beyond".   The applicant's activities were not performed merely on rare or sporadic occasions, but on a regular and systematic basis over a period of seven months.  He produced materials for the purposes of a Departmental project associated with the teaching of the Korean language in New South Wales government schools.  Furthermore, he undertook his activities pursuant to an
arrangement with the Department, even though the arrangement provided only for reimbursement of expenses and did not entitle the applicant to a wage or salary.  Indeed, the only difference between the applicant's activities and paid part-time employment in a regular occupation was that he did not receive a wage or salary.

 

As I have already noted, the test of whether an individual has "worked" is not whether that person has received a wage or salary, but whether the activity normally attracts remuneration in Australia.  Thus, the finding that the applicant received no remuneration other than reimbursement for expenses is not inconsistent with the conclusion that the applicant engaged in an activity that normally attracts remuneration in Australia.  The present case has similarities to Braun, at 156, where French J. held that a person who was working without pay as a cook, in order to gain work experience, was performing "work" within the definition in reg.1.3.  His Honour accepted that people who undertake an occupational activity of a kind that ordinarily attracts remuneration are within the definition, even though they are doing so in the hope of gaining experience for future remunerative work.  In the present case, just as in Braun, it was clear enough that one of the applicant's motives, if not his only one, was to demonstrate his skills as a graphic artist, to encourage the Department to offer him paid employment.  After all, the point of supplying the reference from the Department of School Education, was to show that the applicant had "work skills not readily available in Australia" (reg.414.12), in support of his application for a visa or permit to permit him to accept paid employment.  In my opinion, there was evidence before the Tribunal from which it could be reasonably satisfied that the tasks performed by the applicant were in the nature of an occupational activity that, in Australia, normally attracts remuneration.

 

The fact that the applicant's activities benefited the community does not alter this conclusion.   Nor does the fact that the Department of School Education requested the applicant to undertake the graphic artwork for the purposes of its schools project.   Many kinds of work are intended to promote important community purposes, such as welfare or educational objectives.  They are nonetheless activities that normally attract remuneration.  Similarly, it is often the case that a person with special skills is invited to undertake a task because of those skills.  This is quite consistent with a conclusion that the activity performed by that person normally attracts remuneration.

 

None of this is to suggest that the voluntary nature of a particular activity, nor that the purposes for which it is undertaken, are necessarily irrelevant in determining whether the activity is one ordinarily that attracts remuneration.   As French J. said in Braun (at 156):

 

     "It may be that circumstances can arise in which persons engage in activity of a domestic or social character which for the reasons expressed in the Montero case should not be seen as falling within the notion of work as used in the Regulations.  The assessment of work-like activity as purely domestic or social is a matter of evaluation and degree.  But this
case does not approach what might be called a domestic or social characterisation."

 

 

Those observations apply equally to the present case.

 

Substantial Compliance

Ms McCallum supported her argument, that the Tribunal had applied an incorrect test in determining whether the applicant had "complied substantially" with the non-work condition of his entry visa, by stressing that the applicant had made "an innocent error".  By that I understood her to mean that the applicant had not appreciated, when undertaking his activities on behalf of the Department of School Education, that he was breaching the condition attached to his entry visa that he was not to perform work in Australia.  Again, no express finding to this effect was made by the Tribunal.   However, the Tribunal referred to the applicant's evidence that he had assumed that work performed at the initiation of a government department must have implied that the "government" had power to override any restriction on his visa.  I think a fair reading of the Tribunal's reasons is that it accepted this evidence.  The Tribunal characterised the applicant's evidence as "forthright".  It also addressed the applicant's argument, that he had substantially complied with the condition because he had worked for a government department, without suggesting that it rejected the factual underpinning of the argument.

 

Ms McCallum referred to Hamilton v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 (FCA/FC), to support her contention that a generous view should be taken of the concept of substantial compliance where a person has acted innocently. In that case the Court considered a requirement that an application, signed by a nominator, be lodged by a person held in custody within a period of seven working days.  Davies J., with whom Sheppard and Burchett JJ. substantially agreed, held (at 358) that "[s]ubstantial compliance with the procedural requirements was all that was necessary for the validity of the application".  Davies J. also held that, on the facts, there had been substantial compliance, even though the nominator did not sign the relevant form until a week after the expiry of the time limit.  Davies J. took into account a number of matters, including (at 359) the fact that the nominator had been misled by incorrect information supplied by the Department; the failure of a Departmental officer, despite ample opportunity to do so, to provide appropriate advice to the nominator; and the fact that, but for being misled, the nominator would have signed the form within the required period.

 

As Ms McCallum readily acknowledged, Hamilton was a very different case from the present.  It was not suggested that the applicant in the present case had been misled by advice from the Department of Immigration.  Rather, he had made an assumption that, since he was engaged in activities on behalf of a government department, he was not contravening the visa condition prohibiting him from performing work in Australia.  Furthermore, the issue in Hamilton was whether an applicant and her nominator had substantially complied with an affirmative procedural
requirement.  In the present case the issue before the Tribunal was whether the applicant had complied substantially with the conditions of his visa, specifically the prohibition on performing work in Australia.

 

The Tribunal in the present case accepted that an applicant might "comply substantially" with a condition imposing a prohibition, even if the condition has been breached.  I think that the Tribunal was correct to do so.  As the Tribunal observed in Re Wakefield, unreported, 6 March 1992, at 4, the regulations contemplate that "some degree of non-compliance with visa conditions" may be permitted.  Whether the applicant has "complied substantially" with a condition prohibiting work is a question of fact, to be determined having regard to the particular circumstances of the case.

 

The Tribunal in the present case summarised and accepted the principles formulated  by the Immigration Review Tribunal in Re Sekido, unreported, 6 March 1992.  In Re Sekido, the Senior Member considered that it was appropriate, in determining the question of substantial compliance, to take into account the "proportionality" of the breach and the bona fides (or lack of bona fides) of the applicant.  Re Sekido itself was a case of breach of a condition relating to employment, in which the Tribunal characterised the principal as having "knowingly and consistently disregarded" that condition of the entry permit.

 

Neither counsel disagreed with the statement of principle in Re Sekido, and I think it is broadly correct.  In my opinion, in determining whether an applicant has complied substantially with a condition imposing a prohibition, the Tribunal should consider the relevant circumstances of the case.  Without being exhaustive, these include

 

l    the nature of the breach of condition;

 

l    the significance of the breach, especially by reference to the purposes for which the visa or entry permit was granted;

 

l    whether or not the applicant deliberately flouted the condition; and

 

l    if the applicant failed to appreciate that he or she was in breach of the condition, what, if anything, contributed to that failure and, in particular, whether the Department misled the applicant.

 

In general, it is a matter for the Tribunal to assess the weight to be accorded to these factors, having regard to the circumstances of the case.  As Lee J. said in Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363, at 374, the object of s.5(3) of the ADJR Act (equivalent to s.476(4) of the Migration Act 1958) is to limit the operation of s.5(1)(h) (equivalent to s.476(1)(g)),

 

     "and in particular to ensure that it [does] not provide a grant a review based on examination of the sufficiency of the evidence".

 

 

The mere fact that an applicant did not appreciate that his or her conduct breached a condition does not necessarily establish that he or she had complied substantially with that condition.

 

In this case the Tribunal's reasons were somewhat cryptic.  But there is no reason to think that the Tribunal did not do what it said it was doing - that is, take into account the matters referred to in the statement of principle derived from Re Sekido.  The Tribunal had before it, and referred to, evidence of the circumstances in which the applicant came to perform his activities for the Department of School Education.  As I have explained, the Tribunal was aware of and took into account the applicant's failure to appreciate that he was in breach of the condition prohibiting work without written permission.

 

The Tribunal emphasised that the breach of the "no work" condition went to the "essential nature" of the entry permit.  The purpose of the Class 670 (tourist (short stay)) visa and entry permit (reg.670.12) was

 

     "[t]o authorise visits of not more than 3 months to Australia for the purposes of tourism."  (Emphasis supplied.)

 

 

 

It seems to me that in the light of this statement of purpose, it was open to the Tribunal to regard the applicant's breach of the non-work condition as conduct inconsistent with the character
of the entry permit.  I do not think that, in giving this factor particular weight, the Tribunal was applying a test different to that which it articulated.  Nor was it overlooking the other matters it had to take into account, including the fact that the applicant did not appreciate that he was in breach of the condition.  The Tribunal was determining a difficult factual question, that it was required to resolve.  The issue is not whether the Tribunal's assessment of the facts was correct, but whether the Tribunal applied the correct test and whether there was evidence from which it could reasonably be satisfied that the applicant had not "complied substantially" with the condition that he not perform work in Australia.

 

In the result, I do not think that the Tribunal applied an incorrect test in deciding whether the applicant had complied substantially with the conditions of his visa.  I also think that there was evidence from which the Tribunal could reasonably be satisfied that the applicant had not complied substantially with that condition.

 

Conclusion

The applicant has failed to make out the grounds of his attack on the Tribunal's decision.  The application should be dismissed with costs.

                   I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

 

                   Associate:

 

                   Dated: 31 August, 1995

 

Heard:             17 August, 1995

 

Place:             Sydney

 

Decision:          31 August, 1995

 

Appearances:       Ms L. McCallum, instructed by Barlow & Co., Solicitors, appeared for the applicant.

 

                   Ms R. Henderson, instructed by Australian Government Solicitors, appeared for the second respondent.