1706974 (Migration)

[2019] AATA 2781

1706974 (Migration) [2019] AATA 2781 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706974

MEMBER:Margie Bourke (Presiding)

T. Quinn

DATE DECISION SIGNED:  14 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa.

Statement made on 14 February 2019 at 2:11pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – breach of fortnightly work limitation – potential family separation – financial hardship – child born since primary decision – International Convention on the Rights of the Child – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8 Condition 8104; r 1.03

CASES

Braun v MILGEA (1991) 33 FCR 152           
Dib v MIMA (1998) 82 FCR 489
Kim v Witton (1995) 59 FCR 258

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant's Subclass 573 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 consistently breached his 40 hour per fortnight work limitation between November 2016 and March 2017. 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 11 February 2019 to give evidence and present arguments.  At the invitation of the Tribunal the applicant’s wife also gave evidence in the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   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 DIAC Decision Record indicates that the applicant was allegedly undertaking work as [an occupation 1] for [Business 1] (although the applicant’s oral evidence at hearing was that this was for [Business 2]) when he produced his [work records] to [the relevant authority] indicating he had been regularly working in excess of 60-70 hours per week between November 2016 and March 2017. For the following reasons, the Tribunal finds that the applicant has not complied with condition 8104.

10. The applicant was interviewed on 29 March 2017 after his [work records were] inspected and in that interview (and also in his evidence at the hearing) the applicant accepted that he had breached his work condition and his visa was cancelled on 29 March 2017 immediately following his interview.

11. On 19 March 2014 the applicant’s wife applied for Higher Education Sector (TU 573) visa as the primary visa holder and the applicant as dependant applicant.  These visas were granted on 4 April 2014.  Condition 8104 applied to the applicant’s visa (Department file folio 21).

12. The applicant gave evidence at the hearing that he found it difficult to obtain work when he and the applicant’s wife lived in Queensland from 2014-2016 but that approximately 6 months before his visa was cancelled in March 2017, he had been working for [Business 2] as [an occupation 1], receiving $1500-$1600 per week.  His [work records] indicated that he had been working in excess of 60-70 hours per week and the applicant has not disputed this fact.

13. There is no evidence before the Tribunal to suggest that the applicant’s wife as primary visa holder has not been meeting her own visa conditions, including commencing and maintaining her study obligations.

14. Based on the evidence before it, including the consistent written and oral evidence of the applicant, the Tribunal is satisfied that the applicant has not complied with condition 8104 visa, and the grounds for cancellation of the visa are made out

    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 the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    Purpose of Travel and Stay in Australia

16. The applicant and the applicant’s wife gave evidence that the purpose of the applicant’s wife’s travel to Australia is to study and the purpose of the applicant’s travel to Australia is to support his wife.  The Tribunal accepts this evidence, and also accepts the purpose of the applicant’s and applicant’s wife’s travel to Australia continues at the time of decision.  The Tribunal is satisfied the applicant’s wife is the holder of a current student visa.

17. The applicant and the applicant’s wife’s visas (as outlined in paragraph 11 above) expired on 3 September 2017.  The applicant’s wife gave evidence that:

    a.    she has been granted a further student visa to continue her studies expiring in March 2021;

    b.    she has completed [specified vocational courses];

    c.    is currently studying a [a further course] which will finish in March 2019; and

    d.    she intends to complete a [further qualification];

    e.    she has two years more and wants to continue to complete her studies in Australia because it will give her a good future and a good future for their [specified age child];

    f.     the applicant’s parents are paying for her study.

18. The applicant gave evidence that his wife has done a lot for him and he wants to be able to support her while she completes her studies, and to support his son.

19. The Tribunal has considered that the evidence in relation to the purpose of the applicant and his wife’s travel to and stay in Australia continues at the time of decision and gives it weight in favour of not cancelling the applicant’s visa.

    Extent of Compliance with Visa Conditions

20. The applicant’s breach of condition 8104 was significant and repeated over a period of time, and the Tribunal gives this weight in favour of cancelling the applicant’s visa.  The Tribunal notes that the evidence suggests that the applicant has otherwise been compliant with his visa conditions, however, and gives this weight in favour of the applicant.  Overall, the Tribunal has balanced the evidence in relation to the applicant’s compliance with his visa conditions, and gives the evidence weight in favour of cancellation of the visa.

    Degree of Hardship that may be caused

21. The degree of hardship that would be caused if applicant’s visa is cancelled could be serious and irreversible to the applicant and his family unit, including his wife and baby. Based on the oral evidence before it, the Tribunal is satisfied the applicant is married, with a young baby. The Tribunal is satisfied the family unit supports each other, and if the applicant was required to leave Australia this could have consequences for the family unit, or his wife’s capacity to complete her studies. If the applicant’s visa is cancelled, he and his wife will have to decide whether they are to separate. 

22. The applicant gave evidence that the applicant’s wife might have to give up her study or they might temporarily reside apart.  He said that in their culture it is not acceptable to live separately.  The applicant’s wife gave evidence that she wants to continue studying and that she has previously suffered depression form the stresses of trying to cope with a young child, her studies, and having to work to support the family when the applicant could not work. The Tribunal accepts the applicant’s wife has not undergone treatment in Australia for depression, but it accepts the applicant’s wife was under stress trying to cope with the demands of caring for a young child, the financial pressures of trying to provide for the family, and the pressure of keeping up with her studies. The Tribunal accepts the applicant’s wife will experience psychological and emotional hardship if the applicant is required to leave Australia, and continued financial hardship if the applicant has to leave and she has to look after the baby, work and study without his support.  There would be obvious financial difficulties given the discrepancies in remuneration between Australia and India.  The Tribunal has considered the effect on all members of the family unit if they were separated by the cancellation of the visa, and the effect on all members of the family unit if the applicant’s wife abandoned her studies to remain with the family unit. The Tribunal considers these factors of potential and current hardship to the applicant, his wife and child, and gives them significant weight in favour of not cancelling the applicant’s visa.

23. When the applicant was granted the bridging visa on 7 April 2017 (following cancellation of the visa subject to the present application) an 8101 condition of no work was imposed.  The applicant’s evidence at hearing was that he has not worked since his visa was cancelled on 29 March 2017.

24. The applicant’s wife gave evidence that she had worked and studied up until [a specified time] and resumed work [at a specified time], to support the family when the applicant had no work rights.  The Tribunal places weight on this evidence as it demonstrates enduring hardship that will be suffered by the applicant and his family if the applicant returns to India and the applicant’s wife remains in Australia to study and has to support herself and her son in addition to that study.

    Circumstances in which ground of cancellation arose

25. The applicant stated in his interview on 29 March 2017 that ‘I believed I could work 40 hours a week as my wife is doing a [specified higher level course].  When my wife is studying a [higher level course] I think I am doing full time work.  When my wife doing [her initial course] only worked 20 hours a week’ (p5 DIAC Decision Record).  At the hearing, the applicant gave evidence that an agent in India told them, when applying for their visas as described in paragraph 11 above, that his wife was subject to the 40 hour per fortnight limitation but that he could work as many hours as he liked.  When asked at hearing why he did not clarify or enquire as to what the limitations or conditions on his visa were, the applicant stated ‘no one told me’ and ‘no one asked me’ and when asked about his copy of the visa and whether he thought to check it to see its conditions he said ‘I was very happy that I got a visa to go to Australia’.  Based on the evidence he gave at hearing, the Tribunal is satisfied that the applicant had difficulty obtaining work when he came to Australia and when he did obtain work with long hours and good money, he did not hesitate to take the employment, or to seek to check his visa conditions. The applicant gave evidence that the money received from his work was used to purchase household goods.  The Tribunal has considered that it is for any visa holder to read, understand and follow their visa conditions.  The Tribunal found the applicant to be genuinely remorseful for breaching the condition.  The Tribunal has empathy for the applicant’s situation, and accepts the applicant was trying to provide financially for his wife. However, the Tribunal gives weight to the overall evidence of the circumstances in which the ground for the cancellation arose in favour of cancelling the applicant’s visa.

    Past and present behaviour of the applicant towards the department

26. The DIAC Decision record notes that the applicant’s behaviour was “generally compliant, apologetic” (Decision record folio 11).  The Tribunal gives this weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

27. There is no evidence that there are any consequential cancellations as a result of the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. There would be legal consequences if the applicant’s visa is cancelled.  The applicant would face the possibility of immigration detention, he would be limited in future visa applications by the application of the Act, and he would be subject to exclusion periods by the engagement of PIC 4013. The applicant was granted a bridging visa on 7 April 2017 and the dependant visa which is the subject of this decision has now expired.  The Tribunal gives the evidence of the mandatory legal consequences that flow form a cancellation weight in favour of not cancelling the applicant’s visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. Australia has international obligations that may be breached if the applicant’s visa is cancelled.  The Tribunal has carefully considered Australia’s international obligations in this review.  Australia is a signatory to the International Convention on the Rights of the Child (CROC).  Australia’s obligations pursuant to CROC include the welfare of the child, and the child’s right to family unity and to be with his parents.  The Tribunal is particularly conscious of Articles 10 and 18 in this regard.  The applicant and the applicant’s wife have an [age specified] child who is entitled to the love and support of both parents.  His best interests would not be served if the applicant’s visa was cancelled and he was forced to leave Australia.  The Tribunal accepts that it is in the applicant’s child’s best interests that his mother completes her studies and that the applicant remains in Australia to support his wife and child. The Tribunal gives Australia’s international obligation’s weight in favour of the applicant.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

30. Not applicable.

    Any other relevant matters

31. The Tribunal considers it is relevant that the child was not born at the time of the Department decision, and there are therefore relevant factors and information to be considered in relation to the discretion as to whether the applicant’s visa should be cancelled that were not available to the Department at the time of its decision.

32. The Tribunal has carefully considered all the above matters.  The Tribunal is satisfied that the combined weight of the purpose of the visa that in this situation is continuing as the Department has granted the applicant’s wife a further student visa, the hardship that would be caused to family members if the applicant’s visa is cancelled (specifically the applicant’s wife and son), Australia’s international obligations and CROC, the applicant’s compliant conduct toward the Department and the other factors in the applicant’s favour, outweigh the factors in favour of cancellation of the visa.

33. For all the above reasons, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa.

    Margie Bourke
    Member (Presiding)

    
    

    T Quinn
    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.