Bunjoo (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 572 Student (Temporary) (Class TU) visa held by the applicant, Bunjoo. The dispute arose from allegations that the applicant had breached condition 8105 of his visa, which limits the hours a student visa holder can work in Australia. The Department of Immigration and Border Protection had formed the view that the applicant had worked in excess of the permitted 40 hours per fortnight, leading to the cancellation of his visa.

The primary legal issue before the Tribunal was to determine whether the applicant had indeed breached condition 8105 of his visa. This required the Tribunal to consider the definitions of "fortnight" and "work" as provided in the Migration Regulations 1994, and to apply an objective test to the facts to ascertain if the applicant's activities attracted remuneration and exceeded the prescribed fortnightly limit. If a breach was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal found that the applicant had not complied with condition 8105, as indicated by payslips suggesting he worked 60 hours in a fortnight for Bunjoo Pty Ltd. However, the applicant denied the authenticity of these payslips and stated he had not received payment. Despite this, the Tribunal accepted that the applicant's breach, which involved working an additional 5.5 hours in one fortnight, was not intentional and was limited in scope. The Tribunal also considered that the breach was not significant given the applicant's time in Australia and his study commitments. Furthermore, the Tribunal noted the potential hardship to the applicant if his visa were cancelled, including the inability to complete his Australian qualification and the automatic cancellation of his spouse and daughter's visas.

Considering the totality of the circumstances, including the limited and unintentional nature of the breach, the potential hardship, and the applicant's otherwise cooperative behaviour, the Tribunal concluded that the cancellation of the visa was not warranted. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 572 Student (Temporary) (Class TU) visa.