Bunjoo (Migration)

[2018] AATA 3528

Bunjoo (Migration) [2018] AATA 3528 (10 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashley Bunjoo

CASE NUMBER:  1709031

HOME AFFAIRS REFERENCE(S):           BCC2016/3593390

MEMBER:Christine Kannis

DATE:10 August 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 572 Student (Temporary) (Class TU) visa.

Statement made on 10 August 2018 at 6:42am

CATCHWORDS

Migration – Cancellation – Student (Temporary)(Class TU) – Subclass 572 (Temporary)(Class TU)visa – Breach of work conditions – Brother in-law’s company set up under applicant’s name –Payslips indicate the applicant worked over 60 hours a fortnight – Not genuine payslips – Applicant worked as a casual chef – Worked an additional 5.5 hours covering another worker –Discretionary elements – Breach of condition unintentional – Extenuating circumstances beyond the applicant’s control – Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2 cl Schedule 8 condition 8202

CASES

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 April 2017 made by a delegate of the Minister for Immigration and Border Protection 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 issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 12 June 2018 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s wife, Mrs Prescilla Bunjoo and the applicant’s former registered migration agent, Mr Mohammad A Z Muadarbouc.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

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.

   Does the ground for cancellation exist?

8. On 6 January 2016 the applicant was granted a visa in Subclass Vocational Education and Training Sector with condition 8105 attached. 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).

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. In the present case the Department decided that the applicant had worked for than 40 hours a fortnight based on pay slips for the periods from 31 May 2016 to 13 June 2016 and from 14 June 2016 to 27 June 2016. The pay slips indicate the employer was Bunjoo Pty Ltd and the applicant’s classification was Managing Director.  The pay slips indicate that the applicant worked 60 hours in each fortnightly period and was paid $1,234.00 by cheque.

12. The applicant’s education provider notified the Department that the applicant’s registered course of study in the Advanced Diploma of Hospitality included term breaks of 11 April 2016 to 24 April 2016, 4 July 2016 to 17 July 2017 and 26 September 2016 to 9 October 2016.

13. The Tribunal was not aware of the source of the pay slips and the applicant said he had not seen the pay slips prior to the hearing and had not received any cheques from Bunjoo Pty Ltd.

14. The Tribunal asked the applicant about the work he performed for Bunjoo Pty Ltd. He said prior to coming to Australia in February 2016 his brother-in-law, Mr Asim, had been good to him and his family and had paid their overseas insurance. When he arrived in Australia Mr Asim said the applicant may not obtain work easily and said he would employ the applicant’s wife thereby providing some income to the applicant and his family.

15. At that time Mr Asim resided in New South Wales. The applicant said Mr Asim asked him and his wife to open a bank account in the name of Bunjoo Pty Ltd. Mr Asim deposited money into the applicant’s bank account and registered the company with ASIC.

16. The applicant told the Tribunal that the work undertaken by his wife for Bunjoo Pty Ltd was limited to paying employees for Mr Asim.  The material before the Tribunal included Westpac Business One Account activity statements for the period from May 2016 to July 2016. The statements are for Bunjoo Pty Ltd and show significant deposits were made into the account from Prompter Pty Ltd and multiple withdrawals which appear to be payments made to multiple payees.  Mrs Bunjoo told the Tribunal that her involvement and knowledge of the company’s activities was limited to being asked to make payments of nominated amounts to nominated accounts.

17. The applicant said he had never performed any work for Bunjoo Pty Ltd and his involvement was limited to opening the bank account as requested by Mr Asim when he first arrived in Australia.  He understood that Mr Asim would be providing his wife with work but there was no suggestion that he would work for Mr Asim.

18. The applicant told the Tribunal that in 2016 he worked as a casual chef for different restaurants including the Unicorn Bar and Christina’s. He mostly worked on weekends because he attended classes during the week.

19. The applicant provided ANZ and CBA bank account statements in his name for period from April 2016 to July 2016. The statements include credit transactions with respect to the applicant’s wages from the Unicorn Bar and Christina’s. There were no deposits made by Bunjoo Pty Ltd and no deposits in the amounts of $1,234.00 being the amounts shown in the Bunjoo Pty Ltd pay slips.

20. The Tribunal noted from bank statements that on 30 May 2016 $1,182.96 was deposited into his bank account and the transaction was described as a transfer “From CBA Wages Unicorn Bar”. Deposits with a similar description appear each fortnight in May 2016 and 18 April 2016 and on 27 June 2016.

21. Following the hearing the applicant’s representative provided additional documentation including but not limited to a written submission and a pay slip for the period 16 May 2016 to 29 May 2016 from the Unicorn Bar. The pay slip showed that the applicant worked 45.5 hours in that fortnight, which was 5.5 hours more than he was permitted to work under condition 8105. In the written submission the applicant’s representative said that the applicant’s breach of the condition was not intentional.

22. Prior to the hearing the applicant’s representative provided documentation which included but was not limited to a Statutory Declaration, bank account statements, a CoE, a Letter of Offer of Enrolment and a Statement of Attainment.

23. The Statutory Declaration was made by the applicant’s representative and provided the following information:

    ·In August 2016 the applicant consulted him for accounting and tax related advice.

    ·When the applicant arrived in Australia his brother-in-law, who lives in Sydney, told him he could help with their business and told him he would receive a remuneration return. 

    ·His brother-in-law set up a company in the applicant’s name.

    ·The applicant is unsure as to whether he had any involvement in applying for a business name, GST, tax file number or ABN registration with ASIC or the ATO.

    ·The company was set up and money was deposited into the company bank account and the applicant’s wife was only required to transfer money from the company bank account to pay employees who were working in Sydney, into the nominated bank accounts provided by the applicant’s brother-in-law.

    ·The applicant and his wife had no idea about any income that was deposited into the company bank account, the sources of the money or anything regarding the people to whom the money was paid.

24. The applicant’s representative told the Tribunal that Bunjoo Pty Ltd is not a company that provides any goods or service and the role of the company appears to be to make payments to people as directed by Mr Asim.

25. The Tribunal considered the written and oral evidence regarding Bunjoo Pty Ltd and the applicant’s involvement in the company.

26. Based on the evidence the Tribunal finds that the applicant’s course of study included a term commencing on 25 April 2016 until 1 July 2016.  .

27. The Tribunal accepts the applicant’s evidence  and finds that at no time, including during the periods from 31 May 2016 to 13 June 2016 and from 14 June 2016 to 27 June 2016, has he worked for or been remunerated by Bunjoo Pty Ltd. The Tribunal decided that the Bunjoo Pty Ltd pay slips were not genuine pay slips and was satisfied that the applicant had not worked the 60 hours referred to in each pay slip.

28. The Tribunal decided that the applicant breached condition 8105 during his employment with the Unicorn Bar because he worked 45.5 hours in the period 16 May 2016 to 29 May 2016. This period was during a term of study as advised by the applicant’s education provider.

29. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

30. Therefore, the Tribunal finds that the applicant has not complied with condition 8105 of the visa.

    Consideration of the discretion to cancel the visa

31. 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’.

32. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence.

33. There was no evidence to indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control. In the written submission received following the hearing the applicant’s representative said the reason the applicant worked the additional 5.5 hours was likely to have been because he was the only person in the kitchen and he was required to wait until the next worker arrived to take over his duties. It was submitted that if the next worker was late the applicant was required to wait and he was paid for these additional hours.

34. The Tribunal accepts that the applicant’s breach during one fortnight was not intentional. The applicant’s breach was not ongoing and was limited to one fortnight. The breach consisted of exceeding the hours he was permitted to work by only 5.5 hours. The Tribunal decided the breach was not significant given the period of time the applicant has been in Australia and undertaking study.

35. The Tribunal accepts that the applicant will suffer hardship by cancellation of his visa because he would have to depart Australia without attaining an Australian qualification which would limit his employment opportunities.

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

37. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

38. Departmental records indicate that if the applicant’s visa is cancelled, his spouse and daughter’s visas will be automatically cancelled under s140. The applicant’s spouse and daughter hold visas as members of the applicant’s family unit. Accordingly it is not an unintended consequence of the legislation that if the applicant’s visa is cancelled the secondary visa applicants visas will be cancelled.

39. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

40. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

41. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter.

42. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

43. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 572 Student (Temporary) (Class TU) visa.

    Christine Kannis
    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.