1706974 (Migration)

This matter concerned an appeal against the cancellation of a Subclass 573 Student (Temporary) (Class TU) visa. The applicant, a dependent visa holder, was alleged to have breached condition 8104 of the Migration Regulations 1994 by working in excess of the prescribed 40 hours per fortnight. The applicant had admitted to this breach, which formed the basis for the cancellation decision.

The Tribunal was required to determine whether the applicant had indeed breached condition 8104, and if so, whether to exercise its discretion to cancel the visa. Condition 8104 limits student visa holders and their family members to working no more than 40 hours per fortnight, with specific exceptions not applicable in this instance. The definition of "fortnight" and "work" under the Regulations were central to this determination, requiring an objective evaluation of the activities undertaken in their particular context.

The Tribunal found that the applicant had not complied with condition 8104, accepting the applicant's admission of working in excess of 60-70 hours per week. However, in considering the exercise of discretion, the Tribunal weighed various factors. It acknowledged the applicant's and his wife's continued commitment to their studies in Australia, the wife's progress and intention to complete further qualifications, and the potential for significant and irreversible hardship to the family unit, including their young child, if the applicant were required to leave Australia. This hardship included the possibility of family separation and its impact on the wife's ability to complete her studies. Despite the significant and repeated breach of the work condition, the Tribunal gave weight to the applicant's otherwise compliant record and the substantial hardship that cancellation would cause.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa.