1501873 (Migration)

[2016] AATA 3194

1501873 (Migration) [2016] AATA 3194 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Pema Lhadon

CASE NUMBER:  1501873

DIBP REFERENCE(S):  CLF2015/855

MEMBER:Hannah McGlade

DATE DECISION SIGNED:  8 February 2016

PLACE OF DECISION:  Perth

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

Statement made on 08 February 2016 at 2:27pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 January 2015 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 not complied with a condition of her visa related to hours of employment. 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 25 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband Rinszin Chophel. The Tribunal hearing was conducted with the assistance of an interpreter in the Bhutanese and English languages.

4. The applicant, a citizen of Bhutan, had requested in the response to the hearing invitation that an applicant in the Dzongkha language (a dialect of Bhutan) be provided. The tribunal attempted but was not able to provide an interpreter in this language as none in Australia were available and the tribunal determined that the hearing proceed with the assistance of a Bhutanese interpreter. The applicant indicated that she understood the interpreter and the tribunal satisfied itself that she would adequately provide her evidence and participate in the hearing with the Bhutanese interpreter.

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

6. 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

7. 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?

8. 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).

9. 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. 

10. 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.

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

12. The applicant arrived in Australia on 27 July of 2014. She was located at the Grand Chicken Factory in Perth by compliance officers on 22 October 2014. The company provided time cards for the applicant indicating that she had worked in excess of permitted hours. According to the time cards from 22 September 2014 to 5 October 2014 she worked 84.30 hours. From 6 October 2014 to 17 October 2014 she worked 89.45 hours.

13. The tribunal finds that the work at the factory being undertaken was for remuneration. The applicant also worked in excess of 40 hours a fortnight in the above time periods.

14. 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

15. 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.

16. 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).

17. The applicant’s claim is that she was not aware of and did not know of the work restriction on her visa. As many of her workmates were also working and she thought it was alright to work. She did not realise she could only work 40 hours a fortnight. According to the applicant a contractor named ‘Ivy’ should have been responsible for organising her to work within the limitation. She did not know the full name of Ivy and did not provide documentary evidence of this arrangement with Ivy. In her letter to the tribunal she also referred to Thanh contractor as her agent who made her believe she had no problem working in Australia.

18. The applicant said that it was the first time she had ever left her country and had never had visa conditions imposed on her before. That was why she did not know her visa restriction.

19. The applicant said she will not be able to live separately from her husband. Her husband only requires a further six months to complete his studies and she requested the tribunal allow her to stay. In her letter to the tribunal she said she and her husband are mutually dependent on each other for their emotional and psychological needs and it would be a great hardship if they were required to live separately. Her husband would be serious affected in this manner and unable to complete his studies. She would have to face the shame of the visa being cancelled and would be shamed before her family, friends and colleagues. She is very sorry for what happened.

20. The applicant told the tribunal she has had no work rights since the cancellation. When asked if she had worked since the cancellation she gave evidence that she had worked for three days because a subsequent employer told her ‘there is no replacement.’ She said she was sorry that she had continued to breach her visa conditions concerning work.

21. According to Rinzin Chophel, his wife is very sorry for breaching the visa rule and she did not have an intention to beak the rule. He also gave evidence it would be very hard psychologically and emotionally for him to concentrate on his studies if she had to return to Bhutan, particularly as she looks after him. His health will also be affected (he provided a medical certificate showing he was unable to study on 9 December 2014 as he was homesick and had insomnia). His wife will be shamed if she must return without him. There would not be much support for her. It will impact their whole life in Bhutan as they will be seen as ‘rule breakers’. They made a mistake and are sorry.

22. The applicant has completed some studies in Australia, being a Certificate III in Aged Care.

23. The tribunal allowed the applicant further opportunity to provide evidence of her bank statements in support of her claim that she had only worked again once (for three days) in breach of visa conditions. No further evidence was provided.

24. The tribunal accepts that the applicant and her husband will suffer significant disadvantage as claimed should the visa cancellation not be set aside. Nonetheless, the tribunal considers it should not be set aside as the evidence is that the applicant has continued to breach visa conditions following the cancellation of her visa. She gave evidence at the hearing of working without having work rights following the visa cancellation. Although she originally claimed that the contractor Ivy was at fault for not explaining her visa conditions related to work, it is clear that she would have known that she had no work rights upon cancellation and yet she has continued to work and breach her visa conditions. Even if the tribunal accepted her claim that she was ignorant of the visa conditions, the evidence clearly shows that she is a person who is not willing to abide by the visa conditions related to work. The tribunal considers that she has a strong motivation to work regardless of visa conditions and that she has little regard for the work restriction under condition 8104. As she repeatedly does not abide by the terms of her visa, the tribunal considers that the hardships she and her husband will face are not adequate reason to set aside the visa cancellation.

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

    DECISION

26. 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.