1511402 (Migration)

This matter concerned an application to the Tribunal to affirm a decision to cancel the applicant's student visa. The central dispute was whether the applicant, a holder of a Subclass 573 Higher Education Sector visa, had breached condition 8105 of the Migration Regulations 1994 by working in excess of the permitted hours. The Tribunal was required to determine if the applicant had complied with condition 8105 and, if not, whether to exercise its discretion to cancel the visa.

The Tribunal considered the definition of "work" and "fortnight" as provided in the Regulations, noting that "work" is an activity that normally attracts remuneration and that the test for determining this is objective, requiring consideration of the context and motivations behind the activity. The applicant had been granted a Master of Commerce visa and commenced employment in April 2014. Records indicated the applicant worked in excess of 40 hours per fortnight from June 2014 to August 2015, and the applicant himself testified to working approximately 40 hours per week during this period, acknowledging the work was not a course requirement.

The Tribunal found that the applicant had not complied with condition 8105. In considering the exercise of its discretion to cancel the visa, the Tribunal weighed various factors. While acknowledging the applicant's intention to study and his compliance with other visa conditions, the Tribunal found the breach of condition 8105 to be significant due to its prolonged duration and the extent of the excess hours worked. The Tribunal was not satisfied that the applicant's claimed financial difficulties constituted extenuating circumstances beyond his control, particularly given he had sufficient funds for one year of expenses and commenced full-time work significantly before that period elapsed. Consequently, the Tribunal affirmed the decision to cancel the applicant's visa.