1511402 (Migration)

[2016] AATA 4068

1511402 (Migration) [2016] AATA 4068 (6 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nuwan Anuradha Buddika Wasalamudali

Mrs Maranthotage Nilanka Maranthota

CASE NUMBER:  1511402

DIBP REFERENCE(S):  88380030165

MEMBER:David Corrigan

DATE:6 July 2016

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction in respect of the other applicant.

Statement made on 06 July 2016 at 5:47pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 August 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant's Subclass 573 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that in respect of the first named applicant (the applicant).  The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

3. The applicant appeared before the Tribunal on 6 July 2016 to give evidence and present arguments.

4. The applicants were represented in relation to the review by their registered migration agent.

5. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8105. The issue in the present case is whether that ground for cancellation is made out

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 8105 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 8105?

8. Condition 8105, as it applies in this case is extracted in the attachment to this decision.  It requires that the visa holder must not engage in any work in Australia before the course of study commences. Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight (excluding certain work that is specified as a course requirement). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.

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: 8105(3).  ‘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. For the following reasons, the Tribunal is satisfied that the applicant has not complied with condition 8105. 

12. The applicant was granted a Subclass 573 Higher Education Sector visa at Charles Stuart University to undertake a two year Master of Commerce from November 2013 onwards.  The applicant submitted to the Tribunal copies of the delegate’s decision and a notice of intention to consider cancellation that indicates that there was information provided by his employer, Zouki Monash, that he had been working in excess of 40 hours per fortnight since he commenced employment and that records from 23 June 2014 to the date of the notice (19 August 2015) confirm this.  At the hearing, the applicant gave oral evidence that he started working in paid employment at Zouki in April 2014 and that from 23 June 2014 until 16 August 2015 he worked about 40 hours per week.  He said he did this work throughout this period and that his only break from studying the course was over the summer during December to February.  He also gave evidence that the work was not a course requirement for his Master’s degree. The applicant told the Tribunal that he had undertaken a two year Master of Commerce from November 2013 onwards.

13. On the basis of the above evidence, the Tribunal finds that the applicant engaged in work in Australia for more than 40 hours a fortnight during fortnights when his course of study was in session.  Based on the above evidence it also finds that the work was not specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students.  Based on the above evidence, the Tribunal further finds as the applicant had been granted a Subclass 573 visa he was not otherwise exempt from the restriction as a Subclass 574 student.

14. Therefore, the Tribunal is satisfied that the applicant has not complied with condition 8105 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).

    The purpose of the visa holder’s travel to and stay in Australia

17. The applicant studied and completed a Masters of Commerce after he travelled to and stayed in Australia and the Tribunal is satisfied that the applicant travelled to Australia and stayed with an intention to study and has given this factor weight in favour of not cancelling the visa.

    The extent of compliance with visa conditions

18. The Tribunal has taken into account that the applicant was in breach of condition 8105 for long periods of time and that he worked considerably more than the 40 fortnightly hours allowable during these periods.  Overall it considers the extent of the breach is a significant factor that points to cancelling the visa.

19. The Tribunal has no evidence before it that the applicants have not complied with other visa conditions.  It considers this is a consideration that is in their favour and it has taken this into account and given it some weight.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

20. The applicant told the Tribunal that he did not have deep idea of the condition and that he only understood it after he had been working 5-7 months after he commenced working in April 2014.  He said that he needed the money as his parents did not have any money and that he had to pay loans in Sri Lanka and that he couldn’t get a good financial job in Australia.  He said his cousin in Australia who was sponsoring in his studies had lost business and he could not ask him for the money.  The applicant said that before he came to Australia he had one year of expenses available.  The Tribunal has considered all of this evidence, however his course started in November 2013 and he had commenced working on full time basis in June 2014 which is significantly less than the one year of expenses that he said he had available.  Whilst the applicant said he did not earn too much money, he was working 40 hours per week which was well in excess of the 40 hours per fortnight which he was allowed to work whilst his course of study was in session.  The Tribunal appreciates that study and living costs in Australia are high, however it considers this was something that the applicant would and should have been aware of prior to coming to Australia to study the course he chose to do.  On the evidence before it, that the Tribunal is not satisfied that the applicant’s claimed financial difficulties were an extenuating circumstance beyond his control which led to the ground existing.

21. The Tribunal notes that the applicant told the Tribunal that he speaks English (his English was good at the hearing) and that he was undertaking a high level Masters course conducted in English and that he is a highly educated individual having completed a Transport and Logistics degree in Sri Lanka.  The Tribunal does not consider it credible in these circumstances that the applicant was unaware of the condition until late 2014 as he told the Tribunal.  He continued to breach the condition for a long period after he claimed to be aware of.  The Tribunal considers the applicant had an obligation to be aware of the condition which accompanied the grant of the visa and it does not consider this to be an extenuating circumstance beyond his control.

22. Considering all of the evidence, the Tribunal does not accept that the breach of the condition occurred in extenuating circumstances beyond the applicant’s control.  It considers the circumstances considered as a whole support the cancellation of the visa. 

    The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision

23. The Tribunal has taken into account that it is likely the applicants will have to depart Australia.  The applicant stated in his interview with the delegate that his parents were divorced and as the oldest sibling he fed his family including his two brothers and one sister and that he has a wife as well.  He said his family will be affected financially and that if his visa is cancelled this will affect them.  However, on his evidence given at the hearing, he has qualified for a Transport and Logistics degree in Sri Lanka and had 8-9 months’ work as a production executive in Sri Lanka.  He has also obtained a Masters of Commerce degree in Australia.  The Tribunal considers these qualifications and work experience would prove to be very useful in obtaining good employment in his home country and in providing support to any family members who require it. 

24. The Tribunal considers on the evidence before it, the applicants and family members will not face any significant degree of hardship (financial, psychological or emotional) if the visa is cancelled and has given this factor only limited weight in favour of not cancelling the visa.

    The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

25. The Tribunal has no evidence before it that the applicants’ past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in their favour and it has taken this into account.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

26. The applicant’s wife was a dependent on the applicant’s student visa and her visa would also be cancelled under s.140; however, the Tribunal has given this factor only limited weight in favour of not cancelling the visa.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

27. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds there would not be any breach of any obligations under relevant international agreements and the Tribunal finds this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

28. The applicant did not raise any matters that indicated that this was an issue and the Tribunal finds this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

29. The applicant told the Tribunal he and his wife are currently on bridging visas. The cancellation of his student visa will therefore not directly lead to them becoming unlawful non-citizens.  Whilst the applicants may eventually become unlawful non-citizens and be liable for detention and removal, the Tribunal gives this factor only limited weight in their favour and finds it does not outweigh other factors that point to the cancellation of the visa.  The Tribunal is not satisfied, on the evidence before it, that indefinite detention is a possible consequence of the cancellation decision because they cannot be removed from Australia consistently with Australia’s non-refoulement obligations. 

30. There are no provisions of the Act that that prevent the applicants from validly applying for a protection visa without the Minister personally intervening.  Whilst they may be prevented from making a valid application for other visas without the Minister personally intervening, this is a factor that the Tribunal gives only limited weight in their favour to.   

    Any other relevant matters

31. The applicant told the Tribunal that he had completed the Masters of Commerce after being given permission to study.  The Tribunal has no independent evidence of this, but is prepared to accept that he did successfully complete this course.  The Tribunal has taken into account in the applicants’ favour that he was able to successfully complete this course despite his long work hours; however it has given this factor only limited weight in the applicants’ favour and it considers this does not outweigh the matters set out above that support cancelling his visa.

32. The applicant told the Tribunal that his work at Zouki had helped him understand the purchase system and customer service and that it was good for his future and would help him apply for a Subclass 457 visa which Zouki had proposed to sponsor him.  He said as the Masters of Commerce was not on the skilled occupation list this would not allow him to obtain a Subclass 457 visa.  Whilst the Tribunal accepts that this may be the case, it does not consider these motivations an acceptable or satisfactory reason for his extensive and intentional breach of the visa condition attached to his student visa and it has not given these matters any weight as a reason not to cancel the visa.

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

    DECISION

34. The Tribunal affirms the decision to cancel the first named applicant's Class TU visa.

35. The Tribunal has no jurisdiction in respect of the other applicant.

    David Corrigan
    Member

    
    

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

    8105(1A)  The holder must not engage in any work in Australia before the holder’s course of study commences.

    (1)Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.

    (2)Subclause (1) does not apply to

    (a)     work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students; and

    (b)    in relation to a Subclass 574 (Postgraduate Research Sector) visa if the holder has commenced the masters degree by research or doctoral degree.

    (3)In this clause:

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