FEDERAL COURT OF AUSTRALIA Pannu v Minister for Immigration and Citizenship [2007] FCA 152 Migration Act 1958 (Cth)ss 116(1), 366C Pannu v Minister for Immigration & Anor [2006] FMCA 883 HABIR KAUR PANNU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL NSD 1437 OF 2006 NICHOLSON J 20 FEBRUARY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1437 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HABIR KAUR PANNU Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLSON J DATE OF ORDER: 19 FEBRUARY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The description of the first respondent be amended to 'Minister for Immigration and Citizenship'. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs of the appeal. 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 NSD 1437 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: HABIR KAUR PANNU Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: NICHOLSON J DATE: 20 FEBRUARY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 At the conclusion of the hearing of this appeal it was dismissed with costs. The following are the reasons why such orders were made. 2 The appeal was brought against a judgment of a Federal Magistrate (Emmett FM) of 7 July 2006 (Pannu v Minister for Immigration & Anor [2006] FMCA 883) dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal) of 11 January 2006 affirming a decision of a delegate of the first respondent of 23 September 2004 to cancel the appellant's visa. 3 At the commencement of the appeal it was apparent that the appellant was not present and that her husband was present to assist the Court by representing her if that was possible. For reasons delivered following oral submissions for the first respondent, the request for this to occur was refused. 4 There was also passed to the Court a written application from the appellant's husband seeking an adjournment of the hearing of the appeal. For reasons delivered at the hearing, the application was refused. 5 The consequence was that the appeal proceeded with only the first respondent before the Court. Circumstances of cancellation of appellant's visa 6 The appellant is a citizen of India who entered Australia on 10 January 2003 on a Temporary Business Entry Visa (Class 457 UC) as a skilled worker. She was employed as a skilled machinist at a Tannery in Western Sydney, although due to departmental delays she was unable to commence work until three months before the cancellation of her visa. This visa was cancelled by the delegate of the first respondent who discovered the appellant working, in uniform, in a fast food franchise after a tip off that this food outlet was employing persons on student visa's and the appellant. The officer for the Department of Immigration and Multicultural Affairs (as it then was) (the Department) questioned the appellant who initially gave false identification and home address details, pretending to be an Australian citizen. Eventually after visiting the false address given by the appellant she gave her correct address and she was escorted there where the appellant produced her passport from her work backpack although she had earlier told the officers that she did not have identification with her. The delegate found that the appellant was working in breach of condition 8107 of her visa. The delegate found that the appellant's breach of the conditions of her visa and her behaviour towards the Department outweighed the reasons not to cancel the visa. Proceedings before the Migration Review Tribunal 7 The appellant applied to the Tribunal for merits review of the decision. The Tribunal found that the appellant's activity performed at Nando's was one that normally attracts remuneration and that the appellant had breached condition 8107(a)(iii). The test for 'work' is whether the activity performed by the individual normally attracts remuneration in Australia. The Minister for Immigration and Multicultural Affairs has a discretion to cancel a visa pursuant to s 116(1) of Migration Act 1958 (Cth) (the Act) but was not under an obligation to cancel the visa. The Tribunal found that the appellant was not a credible witness and she had lied to officers of the Department about her name and address, although she also told them that she worked at the food franchise on and off earning cash in hand. The appellant in her submission to the Tribunal stated that she had been investigating the possibility of operating a similar business and was required to wear a uniform while being in the kitchen and that the franchise's payroll records would confirm that she was not employed by that business. At the hearing the appellant contradicted this statement, saying she was voluntarily training staff to cook Indian food. A letter received by the Tribunal from the owners of the shop confirmed this as well and the appellant's real boss reiterated this as a witness before the Tribunal. The Tribunal considered Migration Series Instructions, MSI 368, (policy guidelines for cancellation of visa) when deciding that the appellant's visa should be cancelled, affirming the decision of the delegate of the first respondent. Federal Magistrate's reasons 8 Before the Federal Magistrate the appellant claimed: 1. the Tribunal did not observe the procedures that were required by the Act or the Migration Regulations 1994 (Cth) to be observed in connection with making the decision; 2. the Tribunal did not act according to natural justice; and 3. the mere location of the appellant at the place of employment is not a ground for cancellation of a visa under s 116 of the Act. The appellant asserted another six grounds which she abandoned at the commencement of the hearing. 9 The Federal Magistrate, in considering the Tribunal's decision in light of the claims made by the appellant, found that the decision was unaffected by jurisdictional error and consequently was a privative clause decision. Procedural ground re engagement of interpreter 10 The appellants first ground concerned s 366 of the Act which provides: '366 Interpreters (1) A person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person. (2) The Tribunal must comply with a request made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English. (3) If the Tribunal considers that a person appearing before it to give evidence is not sufficiently proficient in English, the Tribunal must appoint an interpreter for the purposes of communication between the Tribunal and the person, even though the person has not made a request under subsection(1).' 11 It was common ground that a breach of s 366C of the Act would be a jurisdictional error and that the applicant had requested a Punjabi interpreter in writing. Although there is evidence an interpreter had been ordered, there is no evidence an interpreter was sworn in. The appellant did not claim any disadvantage by the absence of the interpreter nor did she complain during the carriage of the hearing and that no meaningful error of understanding by either the member or the appellant could be identified in the transcript. Her Honour concluded that the exchange at the beginning of the Tribunal hearing showed clearly that the Tribunal considered the appellant was sufficiently proficient in English so that an interpreter was not required. The Tribunal was therefore entitled to proceed without swearing in a interpreter, even though the appellant had requested one. Natural justice contention concerning interpreter 12 The Federal Magistrate understood the appellant's second ground to be that the Tribunal failed to provide an interpreter. Her Honour held that s 357A of the Act is an exhaustive statement of the natural justice rule and the manner in which the Tribunal hearing was conducted was not in breach of Div 5 of Pt 5 of the Act. The appellant had been invited to the hearing and had attended so that there was no breach of s 366C of the Act, with the consequence that the ground was not made out. Whether 'mere location' at workplace within description of 'work' 13 The appellant's final ground was a complaint about the findings of fact about whether the appellant was working in breach of condition 8107 of her visa. 14 Her Honour concluded that the Tribunal's findings of fact regarding whether the appellant's activity at the food franchise was 'work' were open to the Tribunal on the evidence before it as was its finding that the appellant was not a credible witness. The Federal Magistrates Court did not have jurisdiction to review the Tribunal's findings of fact so that the ground could not be made out. Hearing of the appeal 15 For the reasons given above, the first respondent had no contradictor on the hearing of the appeal. The grounds of appeal were the same three grounds that the appellant had argued before her Honour. Her Honour's reasoning in relation to each of those grounds was not contradicted. I examined the reasoning and was unable to find any error in it. Conclusion 16 For these reasons I made the orders dismissing the appeal with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate: Dated: 20 February 2007 The Appellant did not appear Counsel for the First Respondent: D Godwin Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing and Orders Made: 19 February 2007 Date of Publication of Reasons: 20 February 2007