Cheema (Migration)

The Administrative Appeals Tribunal considered whether the cancellation of the applicant's Subclass 573 Student (Temporary) (Class TU) visa was justified. The applicant, a student visa holder, was alleged to have breached condition 8105 of the Migration Regulations 1994, which imposes restrictions on the number of hours a student visa holder can work in Australia. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation following an assessment of the applicant's work hours at Kebabeque.

The primary legal issue before the Tribunal was to determine whether the applicant had contravened condition 8105. This condition stipulates that a student visa holder must not work more than 40 hours per fortnight when their course of study is in session, with specific exceptions. The Tribunal was required to interpret the definitions of "fortnight" and "work" as provided in the Regulations and apply established legal principles for determining whether an activity constitutes "work" in the context of migration law. The Tribunal also had to consider the applicant's conflicting statements regarding her work hours and the circumstances surrounding the Department's decision to cancel her visa.

The Tribunal reasoned that the determination of whether an activity constitutes "work" is an objective evaluation of the specific context, and activities of a domestic or social nature are not considered work. The applicant initially admitted to working 35 hours per week, but later clarified that she did not normally work more than 20 hours per week, with a single instance of working up to 28 hours after holidays. Given the applicant's confusion and the proximity of the interview to the initial departmental contact, the Tribunal found that the evidence did not conclusively establish a breach of the 40-hour per fortnight limit. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.