1417631 (Migration)

[2015] AATA 3002

1417631 (Migration) [2015] AATA 3002 (1 July 2015)

DECISION RECORD

APPLICANT:  Mr KARMA

MRT CASE NUMBER:  1417631

DIBP REFERENCE(S):  VLF2014/130075

TRIBUNAL MEMBER:  Suzanne Carlton

DATE DECISION SIGNED:  1 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant's Class TU visa

Statement made on 01 July 2015 at 9:13am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 October 2014 made by a delegate of the Minister for Immigration to cancel the applicant's Subclass 572 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis the review applicant, whilst holding a student visa subject to a work limitation, worked in excess the 40 hours per fortnight permitted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 1 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dzongkha and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8104 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8104?

6. Condition 8104, as it applies in this case is extracted in the attachment to this decision.  It requires that the visa holder must not engage in work for more than 40 hours a fortnight while in Australia: 8104(1). In relation to student visas, family members of the primary visa holder must not engage in work in Australia until the primary visa holder has commenced a course of study and must not do so for more than 40 hours a fortnight while in Australia except in certain circumstances: 8104 (2)-(5).

7. The concepts of ‘fortnight’ and ‘work’ are both defined in the Regulations.  ‘Fortnight’ for these purposes, means the period of 14 days commencing on a Monday: 8104(6).  ‘Work’ is defined to mean ‘an activity that, in Australia, normally attracts remuneration’: r.1.03. 

8. Determining whether an activity should be regarded as ‘work’ is a matter of evaluation and degree, and activities of a domestic or social nature should not be regarded as work: Braun v MILGEA (1991) 33 FCR 152 at 156. The test to be applied is an objective one: Kim v Witton (1995) 59 FCR 258 at 268. It requires going beyond the nature of the activity in question to the particular context of the assistance provided. 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 normally attracts remuneration: Dib v MIMA (1998) 82 FCR 489, at 495-496.

9. In the present case the applicant was allegedly undertaking work as a factory worker.  For the following reasons, the Tribunal is satisfied that the applicant has not complied with condition 8104.

10. Mr Karma entered Australia as a secondary applicant on his wife’s subclass 572 visitor’s visa on 10 September 2013. That visa was subject to condition 8104.

11. He states that initially he was working in the GRANND factory for remuneration.

12. He acknowledges working in excess of his 40 hours per fortnight on a number of occasions, including while the primary visa applicant’s study was in session.

13. Therefore, the Tribunal is satisfied that the applicant has not complied with condition 8104 of the visa.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has regard to matters raised by the visa holder as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

16. I accept that the applicant was cooperative and acknowledged the breach, but also note that he was caught in a raid on the company based on information the department received. 

17. Whilst the applicant suggests that he was working to financially help support his wife, it would be inappropriate for me to consider this as part of the hardship facing his family, as a criteria of the visa was that the primary visa applicant had to show she had ample financial resources to support herself and any dependents. 

18. The evidence of hardship presented is that the review applicant came to emotionally support his wife. 

19. The applicant and his wife have two children back in Bhutan, who are living with the wife’s stepmother.

20. There is no indication that the applicant has fears about returning to Bhutan and no other evidence that the cancellation and the applicant’s subsequent return to Bhutan would place Australia in breach of any international obligations.

21. The applicant’s wife is a diploma in management and due to complete that in October 2015.  Her attendance and marks are said to be good.  Her intention is to return to Bhutan with her qualifications and to work there.

22. The applicant said that he supports his wife by helping around the house and by driving her to work and study.  Both are some ways away from their home.  She often needs to leave the house by 7 am and depending on her work schedule, either returns in the daytime or late at night.  She does not know how to drive. Public transport is available but time consuming.

23. The applicant said that if he were to return to Bhutan and leave her here, it could lead to misunderstandings between husband and wife. 

24. The primary visa holder’s health is said to be good.

25. The travel to Australia was the first time the applicant was outside of Bhutan but he says that in 2004, his wife studied in India for a couple of months.  They were then married. 

26. Whilst the Tribunal is not unsympathetic to the difficulties likely to be caused by a separation of the applicant from his wife for the remaining months of her course, it is a finite period of time and manageable between the parties.

27. The breach was significant and the Tribunal finds it is not offset by hardship factors in these circumstances. 

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

29. The Tribunal affirms the decision to cancel the applicant's Class TU visa.

    Suzanne Carlton
    Member

    ATTACHMENT – Relevant extracts of Schedule 8 to the Migration Regulations 1994

    8104(1)    Subject to subclauses (2) to (6), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia.

    (2)If the holder is a member of the family unit of a person who satisfies the primary criteria for the grant of a student visa, the holder must not engage in work in Australia until the person who satisfies the primary criteria has commenced a course of study.

    (3)If the holder is able to engage in work in accordance with subclause (2), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia unless subclause (4) or (5) applies.

    (4)Subclause (3) does not apply if:

    (a)   the visa for which the primary criteria were satisfied is:

    (i)a Subclass 573 (Higher Education Sector) visa; or

    (ii)a Subclass 574 (Postgraduate Research Sector) visa; and

    (b)   the course of study is a course for the award of a masters or doctorate degree that is registered on the Commonwealth Register of Institutions and Courses of Overseas Students.

    (5)Subclause (3) does not apply if:

    (a)   the visa for which the primary criteria were satisfied is a Subclass 576 (AusAID or Defence Sector) visa; and

    (b)   the course of study is a course for the award of a masters or doctorate degree.

    (6)In this clause:

    fortnight means the period of 14 days commencing on a Monday.