1421267 (Migration)

[2015] AATA 3060

1421267 (Migration) [2015] AATA 3060 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Madhu Maya Subba

CASE NUMBER:  1421267

DIBP REFERENCE(S):  CLF2014/142644

MEMBER:Dr Hannah McGlade

DATE DECISION SIGNED:  8 July 2015

PLACE OF DECISION:  Perth

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

Statement made on 08 July 2015 at 1:55pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 December 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 that the applicant had breached condition 8104 of her visa by working in excess of 40 hours a fortnight. 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 6 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband Jagai Bor Rai. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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).

8. 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. 

9. 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.

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

11. According to the decision record, the applicant was located at the Grand chicken factory and Grand provided three recent timecards indicating that the applicant had worked the following hours:

    Date: 22/09/2014 to 5/10/2014, total times: 85.30 hours

    Date: 6/10/2014 to 17/10/2014, total times: 91.30 hours

12. The tribunal asked the applicant about this information and she said that she did not know she had any work restriction, she relied on a woman named Ivy who gave her this work in the factory and she was not told about a work restriction. She trusted Ivy because she and her husband had given all their documents to her. The applicant stated ‘I admit it was the biggest mistake and I have understood what I am supposed to do in our country.’ The applicant assured the tribunal that the mistake will not happen again.

13. The applicant has also advised the tribunal in the written submissions of her representative (dated 29 June 2015) that she was employed by Thahn Contractor (a labour hire company) who told her that she must be willing to work long hours, she must open another bank account and her pay will be reduced after the first twenty hours of work. Thanh Contractor is believed to have abused the applicant by knowingly placing her to work in excessive hours.

14. Having considered this information, the tribunal finds that the applicant worked in excess of 40 hours a fortnight in the periods identified by the employer timecard (as set out above) in the months of September and October 2014.

15. 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

16. 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.

17. 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).

18. Other submissions made are that the applicant and her husband have never been separated, the applicant helps her husband in cooking his special meals, providing emotional support, and assisting him through massage with a painful injury. She said she had children in Bhutan but they were well cared for by relatives.

19. The applicant told the tribunal that she had not worked since her visa was cancelled. She said she had no work rights. She also told the tribunal that she had worked for a couple of weeks over the Christmas break as a cleaner. She said she and her husband were using her husband’s income and the money they had from Bhutan. The tribunal asked the applicant how many bank accounts they had. She said they had two bank accounts.

20. According to Jagai Bor Rai, his wife has not been working and she had no work permit. He said she made a very big mistake and he apologised for that. He has a lot of studying and only had seven or eight months left to complete his studies. His wife has been of great help to him because he had an injury and she gives him massages. He came to Australia with his wife and he wants to return with her.

21. The tribunal subsequently received further information from the applicant, being bank statements, academic records for Jagai Bor Rai, and a further letter from Jagai Bor Rai in which he states that his wife massages his painful injury, she cooks his favourite meal and he will be leaving the country when he finishes his studies in April 2016.

22. The tribunal also received bank statements of the applicant and her husband. There are four different bank accounts (with two different banks). The tribunal is concerned by evidence of the applicant that she has been working since her visa was cancelled and that she has not had permission to work. The tribunal notes there are bank statements for December and January (2014-2015) showing a salary was paid on three occasions to the applicant.

23. In view of the applicant’s evidence that she did not have working rights, but had worked in December and January of 2014 – 2015, the tribunal is not willing to set aside the visa cancellation. The tribunal notes the bank statements clearly indicate a salary was being paid to Madhu Subba in December to January of 2014, 2015.

24. In reaching this decision, the tribunal has had regard to the evidence that the applicant’s husband has an injury and relies on her for massage, emotional support and cooking. The tribunal has also considered the evidence that the applicant’s husband has been progressing in his studies and the applicant and he have never been separated.

25. The tribunal does not accept the applicant’s claim that she did not have knowledge of her visa condition regarding work, as it considers this condition would be well known. Further, if the applicant was not aware or had uncertainty she could have readily clarified with the department her visa conditions.

26. The tribunal considers that the applicant may not in future abide by her visa conditions relating to work. There is evidence that she has worked in December 2014 and January 2015 after having her visa cancelled and in circumstances where she had no work rights, thereby continuing to breach her visa condition. For this reason in particular the tribunal has decided not to exercise discretion to set aside the visa cancellation.

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

    DECISION

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

    Dr Hannah McGlade
    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.