Cheema (Migration)

[2019] AATA 1354

Cheema (Migration) [2019] AATA 1354 (15 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Samanpreet Kaur Cheema
Mr Laljeet Singh Swag

CASE NUMBER:  1725189

HOME AFFAIRS REFERENCE(S):           ADF2017/105590

MEMBER:Michelle East

DATE:15 January 2019

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction in respect of the other applicant.

Statement made on 15 January 2019 at 9:51am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – breached condition 8105 – work restrictions on visa – applicant did not work more than 40 hours per fortnight during term time – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140, 348
Migration Regulations 1994, 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 at 268

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named 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 under s.116 on the basis that the applicant was in breach of condition 8105 of her subclass 573 visa. That condition limits the hours of work up to 40 hours per fortnight while her course is in session. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is that in respect of the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The first named applicant (the applicant) appeared before the Tribunal on 14 January 2019 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their 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.

   Did the applicant comply with Condition 8105?

8. 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). This 40 hour restriction does not apply to Subclass 574 visa holders who have commenced a masters degree by research, or a doctoral degree.

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 applicant was working at Kebabeque in Joondalup Shopping Centre. 

12. Officers from the Department of Home Affairs attended the applicant’s place of work on 5 October 2017.  A roster was located inside the store and the applicant ‘admitted’ she was working 35 hours per week.  The applicant said she had been working those hours and had not discussed with her employer her work restrictions on her visa.  She said she initially said she started with less hours but had gradually increased so as to send money to her family in India.  A Notice of Intention to Consider Cancellation was issued on 5 October 2017 with an interview scheduled for 6 October 2017.  At the interview on 6 October 2017, the applicant said the information given to the officers the day before was incorrect because she was confused.  She said she did not normally work more than 20 hours per week although she had worked up to 28 hours in just one week after her holidays had finished.  The decision to cancel her visa was made on 6 October 2017.

13. No tangible proof of the hours she worked was provided to the Department.  The Tribunal was provided with a statutory declaration from both the applicant and her employer, Mr Ozer Demirkan.  Mr Demirkan stated that he knew the applicant could only work 20 hours per week during the school term and unlimited hours during the school holidays.  He said she did not have an employment contract and only drew up rosters for school holiday periods.

14. The applicant has stated in her statutory declaration that she knew she could not work more than 40 hours per fortnight because of her visa conditions.  She further stated that during the term break in September/October 2017 she increased her work hours to more than 40 hours per fortnight.  Her evidence, together with a letter from TAFE dated 10 October 2017 indicates that term 3 ended on 22 September 2017 and term 4 commenced on 9 October 2017.

15. Evidence provided also indicates the applicant was paid in cash and no pay slips were provided.

16. Border Force officials visited her workplace on 5 October 2017, during her term break.

17. The statutory declaration of Mr Demirkan, together with that of the applicant combined with her oral evidence is sufficient to satisfy the Tribunal that the applicant did not work more than 40 hours per fortnight during term time.  The Tribunal has placed significant weight on the applicant’s oral evidence and demeanour in the hearing.  The applicant explained that she had worked 28 hours in one week during term time but had not worked more than 40 hours in the fortnight.

18. The applicant was granted a subclass 573 student visa on 7 January 2016 and arrived in Australia on 19 January 2016.  She completed a Certificate III and Certificate IV in Community Services Work in 2016.

19. The applicant gave a detailed account of the confusion and fear she experienced when the Border Force officers interviewed her.  She said she was scared and confused and believes that this contributed to a misunderstanding about her working hours.  The Tribunal accepts this evidence and taken in the context of the evidence above, the Tribunal is not satisfied that the applicant’s visa should have been cancelled.

20. Therefore, the Tribunal finds that the applicant has complied with condition 8105 of the visa.

21. Accordingly, the ground for cancellation in s.116(1)(b) does not arise. It follows that the visa cannot be cancelled.

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

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant's Subclass 573 Student (Temporary) (Class TU) visa. The Tribunal has no jurisdiction in respect of the other applicant.

    Michelle East
    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.