FEDERAL COURT OF AUSTRALIA

Tikoisuva v Minister for Immigration & Multicultural Affairs [2001] FCA 1347

MIGRATION – review of decision of Migration Review Tribunal – where Tribunal found that applicant would not satisfy a condition of the visa sought, namely that she not engage in work in Australia – meaning of “work” – whether error of law

PROCEDURE – consent orders – jurisdiction to remit matter to Migration Review Tribunal

WORDS & PHRASES – “work”

Migration Regulations 1994 (Cth)  reg 1.03 (definition of “work”), condition 8101 in Sch 8

Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489 at 495 considered

Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142 followed

Xiao v Minister for Immigration & Multicultural Affairs [2001] FCA 459 referred to

SEREANA TIKOISUVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1172 of 2001

STONE J

20 SEPTEMBER 2001

SYDNEY

BY CONSENT, THE COURT ORDERS THAT:

1.      the decision of the Migration Review Tribunal dated 2 August 2001 be set aside;

2.      the matter be remitted to the Migration Review Tribunal for reconsideration.

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

REASONS FOR JUDGMENT

1                     On 8 August 2001, the applicant filed an application for an order of review from a decision made by the Migration Review Tribunal (“MRT”) on 2 August 2001.  The MRT affirmed the decision of a delegate of the respondent (“Minister”) made on 23 July 2001 refusing to grant the applicant a Bridging Visa E (Class WE) and requiring security in the amount of $5,000 prior to granting a visa.

The application before the Court

2                     The applicant claims that she was aggrieved by “[t]he unfair decision given by the Tribunal affirming the decision under review, finding that I was not entitled to the grant of a Bridging Visa E (Class WE)”. The grounds set out in the application are:

“I came to Australia on 9th November as my younger brother, Mr Atunaisa [illegible] got married and I was caring for his child. I did applied further visa to continue to care for my brothers child. I made an application for a Family (Residence) (Class AO) subclass 806 visa because my brother need me to look after his child. I did not receive letter from Immigration stating that my application had been refused. I need fair deal with your Department and seeking favourable permission if Tribunal decision be reviewed by the Federal Court.”

BACKGROUND

3                     The applicant is a Fijian national who first entered Australia on 9 November 1996. Since that time, she has held various visas the last of which was a Bridging A (Class WA) Subclass 010 visa granted on 27 August 1998 in association with an application for a Family (Residence) (Class AO) Subclass 806 visa.

4                     On 17 May 1999, the Department refused to grant the Family (Residence) (Class AO) Subclass 806 visa and notified the applicant of this by registered mail to her last known address. The letter was returned unclaimed.  The applicant did not apply to the MRT for review of the decision and became an unlawful non-citizen on 21 June 1999. She was located by the Department in July 2001 and, during an interview at Villawood Immigration Detention Centre, she admitted she was aware that her visa had expired. 

5                     On 19 July 2001, the applicant lodged an application for a protection visa and an application for a Bridging E (Class WE) visa. On 23 July 2001, the Department informed her that if her Bridging Visa E (Class WE) application was successful she would be required to pay a security of $5,000. A delegate of the respondent refused to grant the Bridging Visa E (Class WE) on 23 July 2001, noting that she was not satisfied that the applicant would abide by conditions imposed on the bridging visa and that no security had been provided. On 24 July 2001, the applicant applied to the MRT for a review of the delegate’s decision not to grant her a Bridging E (Class WE) visa and the decision requiring her to provide security.

The Tribunal’s FINDINGS

6                     The MRT affirmed the delegate’s decision not to grant the applicant a Bridging E visa (Class WE) Subclass 050 because the applicant did not satisfy a criterion for the grant of that visa. Clause 050.223 of Sch 2 of the Migration Regulations 1994 (Cth) (“Regulations”) provides that the Minister (or MRT) must be satisfied that the applicant will abide by any conditions imposed on the grant of a bridging visa. In this case, the MRT was not satisfied that the applicant would abide by Condition 8101 in Sch 8 of the Regulations, the “no work condition”, which provides that the holder of the visa must not engage in work in Australia. Regulation 1.03 defines “work” as “an activity that, in Australia, normally attracts remuneration”.

7                     The MRT stated that:

“The Tribunal is not satisfied that the visa applicant would abide by the no work condition. The Tribunal is satisfied that the visa applicant’s brother is willing and able to accommodate and financially support his sister. However, the Tribunal considers that this accommodation and support would appear to be contingent on the visa applicant continuing to undertake the activities as set out above [minding her brother’s children and doing housework, cleaning, cooking and washing for her brother], particularly caring for her nephew. As the Tribunal cannot be satisfied that the visa applicant would abide by condition 8101, the Tribunal cannot be satisfied that she meets clause 050.223.”

8                     In concluding that the type of activity that the applicant was proposing to engage in constituted “work”, the Tribunal referred to a number of cases, including Dib v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 489 (“Dib”). In that case, Einfeld J stated (at 495) that

“In my opinion, the definition in reg 1.03 is capable of a variety of interpretations depending upon what factors are taken into consideration and therefore cannot be applied without additional qualification. In other words, commercial, social, domestic or altruistic motivations may, in the context of all the facts of a case, assist in determining whether a particular activity undertaken voluntarily is one that ordinarily attracts remuneration. For example, a person visiting his brother and family may help in painting his brother’s house. Because house-painting is often ‘work’ performed for remuneration does not mean that it is not also undertaken as a domestic activity by the owners of the house being painted or by their relatives or friends. Similarly, a son or daughter of the owner of a car may receive pocket money or some assistance in kind, such as the periodic use of the car, in return for washing it every week, or may receive nothing other than the gratitude of the relevant parent. Gardening or other household tasks may be done on the same basis. That this type of activity may also be done for reward by a professional car washer, gardener or domestic assistant where it is undoubtedly ‘work’ does not mean that when done by the sons or daughters, it is ‘work’ in the relevant sense by them.

Thus to determine whether in a particular circumstance the painting of a house or other like activity constitutes ‘work’, all the facts peculiar to the case are to be taken into account and the considerations outlined in [Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 31 FCR 50] and subsequent cases may be used to assist in the determination. If this undertaking is not performed, the definition in reg 1.03 cannot be applied consistently or sensibly to situations that do not fall exclusively into one of the two possibilities.”

9                     The Tribunal reasoned thus:

“The Tribunal is satisfied that the activities undertaken by the visa applicant whilst living with her brother constitute work as they are activities which would normally attract remuneration. The activities could be classified as child minding, housekeeper, domestic or nanny, all of which are occupations, which normally attract remuneration. The Tribunal considers that if the visa applicant was not available to perform these activities, particularly child minding, her brother and his de facto would need to pay for this service to enable them to continue to work on a full time basis.”

consent orders

10                  The parties have proposed the following consent orders:

1.      the decision of the MRT be set aside;

2.      the matter be remitted to the MRT for reconsideration;

3.      there be no order as to costs.

11                  As I noted in Yulianti v Minister for Immigration & Multicultural Affairs [2001] FCA 142, before making these orders I must be satisfied that there is a reviewable error in the MRT’s decision; see also Xiao v Minister for Immigration & Multicultural Affairs [2001] FCA 459. The error of law identified by the solicitors for the respondent is that the MRT incorrectly interpreted the passage of Einfeld J’s decision in Dib set out at [8] above. I am not aware of any later authority casting doubt on this decision and I have assumed for current purposes that it was correctly decided. Accordingly, in considering whether the domestic assistance that the applicant proposed to render to her brother would constitute “work”, the MRT was required to decide if such assistance is an activity that normally attracts remuneration. I understand Einfeld J’s reference to “additional qualification” to mean that context (or motivation) may influence how the activity is described.  His Honour’s point seems to be that house painting being done by a relative is a different activity from house painting being done by a professional painter. Another example might be the difference between a spouse and a stranger to the family doing domestic chores of the kind contemplated by the applicant. The MRT’s failure to consider this issue appears to be based on a misunderstanding of the meaning of “work” as interpreted by Einfeld J and was therefore an error of law, being either a failure to correctly interpret the applicable law or a failure to correctly apply the applicable law to the facts as found.

12                  For these reasons I am prepared to make orders as requested by the parties.

Associate:

Dated:              20 September 2001