Full Federal Court ruling on 20-hours-per-week work for overseas students
Jul 27th 2005, 1:31 pm
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Full Federal Court ruling on 20-hours-per-week work for overseas students
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Vanstone to consider law changes
July 27, 2005 - 10:14PM
Immigration Minister Amanda Vanstone has promised to consider changing
laws which led to the wrongful detention, interrogation and
incarceration of a 21-year-old Bangladeshi man on a valid student visa.
Her pledge follows a scathing judgment from the Full Federal Court
which found Mahabub Alam's visa had been wrongly cancelled and his home
and belongings had been searched without apparent cause and without a
warrant.
Justices Murray Wilcox, Margaret Stone and James Allsop found Mr Alam
had been restrained throughout the search and his arrest and
immigration officers would not even allow him put on a shirt before
taking him from his home in only a singlet.
The judges said their findings should be brought to Senator Vanstone's
attention at the earliest opportunity.
Mr Alam's visa was cancelled when departmental officers found he had
worked 22 hours in a week, when the law said student visa holders were
allowed to work only 20 hours.
The Migration Review Tribunal upheld the officers' action but it was
overturned by the Federal Magistrates Court.
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Senator Vanstone appealed to the Federal Court, where all three judges
criticised the department's actions.
Mr Alam worked at Sydney hotel on the Friday night of the October 2002
long-weekend.
When he was due to leave work, 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 until closing time.
Mr Alam agreed; "no doubt thinking he was doing the right thing by
helping out his boss", Justice Wilcox said.
About 10 weeks later Mr Alam was at home when immigration officers
visited him.
"They were looking for a friend of Mr Alam, Shah Nazram Alam," Justice
Wilcox said.
"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. Almost certainly, no warrant had been issued.
"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 22 and a quarter
hours in a week, rather than the permitted 20 hours."
Mr Alam was held at Villawood detention centre from December 18, 2002
to January 6, 2003 when he was granted a bridging visa.
The court considered various definitions of what constituted a week,
with Mr Alam's work on the Friday night being the point at issue.
On Senator Vanstone's submission, this work should have been counted
along with work on the preceding weekdays but the court found that Mr
Alam's working week, given he was on a student visa, ended with the end
of his studies on a Friday afternoon.
Senator Vanstone on Wednesday night said the case involved the
interpretation of what constituted a week and she was satisfied with
the outcome.
"I've already agreed to the preparation of a regulation dealing with
exceptional circumstances to be applied in all similar cases," she
said.
"My department has agreed to workshop cases with the education industry
and I'm prepared to consider amending regulations, including mandatory
cancellations, if warranted.
"I have asked my department to look at this matter in the context of
its response to the Palmer report in regard to procedure and training."
Vanstone to consider law changes
July 27, 2005 - 10:14PM
Immigration Minister Amanda Vanstone has promised to consider changing
laws which led to the wrongful detention, interrogation and
incarceration of a 21-year-old Bangladeshi man on a valid student visa.
Her pledge follows a scathing judgment from the Full Federal Court
which found Mahabub Alam's visa had been wrongly cancelled and his home
and belongings had been searched without apparent cause and without a
warrant.
Justices Murray Wilcox, Margaret Stone and James Allsop found Mr Alam
had been restrained throughout the search and his arrest and
immigration officers would not even allow him put on a shirt before
taking him from his home in only a singlet.
The judges said their findings should be brought to Senator Vanstone's
attention at the earliest opportunity.
Mr Alam's visa was cancelled when departmental officers found he had
worked 22 hours in a week, when the law said student visa holders were
allowed to work only 20 hours.
The Migration Review Tribunal upheld the officers' action but it was
overturned by the Federal Magistrates Court.
AdvertisementAdvertisement
Senator Vanstone appealed to the Federal Court, where all three judges
criticised the department's actions.
Mr Alam worked at Sydney hotel on the Friday night of the October 2002
long-weekend.
When he was due to leave work, 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 until closing time.
Mr Alam agreed; "no doubt thinking he was doing the right thing by
helping out his boss", Justice Wilcox said.
About 10 weeks later Mr Alam was at home when immigration officers
visited him.
"They were looking for a friend of Mr Alam, Shah Nazram Alam," Justice
Wilcox said.
"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. Almost certainly, no warrant had been issued.
"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 22 and a quarter
hours in a week, rather than the permitted 20 hours."
Mr Alam was held at Villawood detention centre from December 18, 2002
to January 6, 2003 when he was granted a bridging visa.
The court considered various definitions of what constituted a week,
with Mr Alam's work on the Friday night being the point at issue.
On Senator Vanstone's submission, this work should have been counted
along with work on the preceding weekdays but the court found that Mr
Alam's working week, given he was on a student visa, ended with the end
of his studies on a Friday afternoon.
Senator Vanstone on Wednesday night said the case involved the
interpretation of what constituted a week and she was satisfied with
the outcome.
"I've already agreed to the preparation of a regulation dealing with
exceptional circumstances to be applied in all similar cases," she
said.
"My department has agreed to workshop cases with the education industry
and I'm prepared to consider amending regulations, including mandatory
cancellations, if warranted.
"I have asked my department to look at this matter in the context of
its response to the Palmer report in regard to procedure and training."
