Gurdeep Kumar (Migration) - [2019] AATA 3451

Gurdeep Kumar (Migration) [2019] AATA 3451 (12 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurdeep Kumar
Mrs Gurmeet Kaur Kalpana
CASE NUMBER:  1619628
HOME AFFAIRS REFERENCE(S):          BCC2015/621591
MEMBER:Mark O'Loughlin
DATE:12 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the first named applicant's Class TU visa.
The Tribunal has no jurisdiction in respect of the other applicant.

Statement made on 12 July 2019 at 11:16am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – work hours limitation – course of study commenced – taxi driver – login pin – consideration of discretion – significant breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), r 1.03; Schedule 8, Condition 8105
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

This is an application for review of a decision dated 17 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant's Subclass 572 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116 on the basis that the visa holder breached condition 8105. The issue in the present case is whether that ground for cancellation is made out.
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.
The applicants appeared before the Tribunal on 18 April and 17 June 2019 for the applicant to give evidence and present arguments. The Tribunal also received oral evidence from Mr Inderjeet Verma.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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. In addition, once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight except in certain circumstances involving specified course-related work and masters or doctoral degree courses.
The terms ‘fortnight’ and ‘work’ are both defined in the Regulations. ‘Fortnight’ for these purposes, means a 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.
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.
In the present case the applicant was allegedly undertaking work as a taxi driver. For the following reasons, the Tribunal finds that the applicant has not complied with condition 8105.
The applicant gave evidence that the Tribunal accepts, that he came to Australia on 28 May 2009 on a Student visa. He did a Certificate 3 in commercial cookery and then a Diploma of Hospitality followed by a Diploma of Business. He then did a Diploma of management and was enrolled in Advanced Diplomas in Business and in Management but elected to change course in the first half of 2015. He obtained the subject visa to do a Certificate 4 in commercial cookery that he completed in about 3 months then enrolled in and Advanced Diploma of Business.
The Tribunal notes that the decision of the delegate of the Minister, a copy of which was provided to the Tribunal by the applicant, confirms that the subject visa was granted on 7 March 2015
The Tribunal further has regard to a document provided to the Tribunal by the applicant being a letter from Paul Patwa, Finance officer of Adelaide College of Technology and dated 01/12/2016. That document confirms that the applicant was enrolled in an Advanced Diploma of Business that started on 22 February 2016 and was due to finish on 21 February 2017, but which was converted to a 68 week course that was due to finish on 16/06/2017.
The Tribunal notes that it is not clear which of the 2 courses the applicant was enrolled in at the time of the alleged breach of his conditions in about June to September 2016 but that in either case, the applicant’s course of study had commenced and was in session and the Tribunal so finds.
That being the case, the applicant breached condition 8105 if he engaged in work in Australia for more than 40 hours during any fortnight during this period.
The applicant gave evidence that he came to Australia in 2009 and was supported by his family. He said that he did not work at first but that in 2010 he got a job as a kitchen hand and had worked as a cleaner and a courier van driver and that he started working as a taxi driver in 2014.
He said he drove for Suburban Taxis and that he drove for one cab owner. He further said that he continued driving cabs until his visa was cancelled in November 2016.The Tribunal accepts this evidence.
The delegate’s decision, a copy of which was provided to the applicant, refers to work records obtained by officers of the Australian Border Force. Those records show that the applicant’s driver identification number was recorded as being in use for periods of between 62 and 75 hours per week during times when he should not have been working more than 40 hours per fortnight.
The delegate’s decision, a copy of which was provided to the Tribunal by the applicant, recorded that the applicant had said that the grounds for cancellation of his visa did not exist because “…he has a brother , Inderjeet, who has used his pin to work. Visa Holder added that on occasions he forgets to log off.”
In discussing the use of driver identification numbers, or “pins” the applicant explained to the Tribunal that when he started a shift he would log on using his pin. The intention was that he would log off at the end of the shift and the next driver would log on using his own pin.
The applicant said that this was intended to identify which driver was in which taxi at any given time.
The applicant said that this was not used to calculate payment, which would be done according to a slip that the driver would print a slip from the meter when his shift ended.
The driver would present the slip to the owner along with the cash takings for the shift. His income would be regulated by his total takings and if there was enough cash he might take the whole of his pay for the shift in cash.
The applicant said that, although he always printed the slip, because that determined his pay, the logon using the pin only informed Suburban’s central system that a particular cab was in service and that relevant jobs could be allocated to it.
The applicant said that because the pin did not affect the amount that a driver would receive for a shift, it was not as important as the slip from the meter. The applicant said that he would sometimes forget to log off after his shift.
He told the Tribunal that if another driver got into the cab and the previous driver had not logged off, the next driver might continue to drive on the same logon. He explained that that was because there is a daily limit to how long each driver may drive and that that is monitored by Suburban using the pin logons.
The applicant said that some drivers would work using another driver’s logon so that they could work longer shifts than were permitted without being detected. They could work part of a shift on another driver’s logon and part of the shift on their own and by so doing could work longer than the 12 hours per day that is permitted.
The applicant told the Tribunal that if he forgot to log off, the next driver may use his logon for part of his own shift. Alternatively if another driver had his pin he could use it to logon in a completely different cab and do part of the shift without using up the time he was allowed on his own pin.
The applicant said that his friend, Inderjeet, knew his pin and had used it to drive.
The applicant had provided a statutory declaration of 29 January 2019 made by Inderjeet Verma, in these terms:
“I have used Gurdeep Kumar taxi pin (6376) to drive taxi in South Australia. I have used his pin because I need money by that time and on my taxi pin I could not drive more than 12 hours. I never realised that it can have significant effect on Gurdeep Kumar visa.
I hereby admit my mistake and accept this mistake because I don’t want to have any impact on Gurdeep Kumar.”
The Tribunal referred the applicant to documents from the file.
It appeared that copies of these documents had previously been provided to the applicant but in the interests of certainty he was provided with further copies as follow:
a.a one page document entitled “Driver Logon/Logoff Report from 19-Jun-2016 to 30-Sep-2016” (apparently printed on 30 September 2016 by Bill Stathopoulos),
b.a document of 3 pages entitled “Driver Logons Report from 18-Jun-2016 to 27-Sep-2016” (apparently printed on 27 September 2016 by Karen Brown) and
c.a document that appeared to provide a summary of the hours worked by Gurdeep Kumar from 11 July 2016 to 25 Sept 2016.
These documents were provided to the applicant with the explanation that they suggest that he was working for periods of over 60 hours per week and that they could be the reason or part of the reason to affirm the decision to cancel his visa.
The applicant was asked if he wanted an adjournment to consider the documents. He did ask for an adjournment and one was granted.
During the adjourned period the applicant was asked to try to provide the log on and log off details for Mr. Verma’s pin for the period 19 June 2016 to 30 September 2016 for comparison purposes.
When the matter resumed on 17 June 2019 the applicant provided a document entitled “Driver Logon/Logoff Report” from 19 June 2016 to 14 September 2016 (“Verma’s report”).
The Tribunal accepts the evidence of the applicant and of Mr Verma’s report relates to driving done by Mr Verma’s using his pin.
The applicant repeated that Mr Verma had used his pin and that he discussed that with Mr Verma after the department contacted him.
He said that he and Mr Verma were friends (which is what he meant when he described him to the department as his “brother”) and that they worked together closely and for the same owner.
He said that Mr Verma could quite easily have obtained his pin by seeing it when the applicant logged on.
The applicant gave evidence that he only worked 4 or 5 shifts per week and that he was mostly driving in 3 or 4 hour shifts.
He gave evidence that he had not driven the taxi no. 2589
The applicant said that he generally drove taxi no. 2024 and 808. When asked if he was driving at the times suggested in the printout that generally related to cabs 2589 and 1019, but referred to his pin, the applicant said that he did not know. In particular he said that he did not know if he was driving cab 2589 at the times indicated in the logon/logoff report that started on 19 June 2016.
The applicant therefore moved away from his earlier evidence that he had not driven taxi 2589.
The applicant agreed that the documents suggested that he had driven more than 4 or 5 shifts per week.
The Tribunal pointed out that the documents suggested that he had driven up to 120 hours in a fortnight and 12 shifts per fortnight. The applicant said that he could not comment on that.
When asked how he kept track of the hours he was working he said that he knew what times he was coming and going.
When he was asked whether he denied driving the shifts on the one page report for driver 6376, or whether he just couldn’t remember he said that he could not remember.
When asked again whether he had driven taxi 2589 he said that might have or might not, having previously denied that he had driven that car.
The applicant agreed with the Tribunal’s suggestion that close analysis of the various printouts would not be of much assistance because the applicant did not know when he was and when he was not using his number.
Mr Verma was called to give evidence. He said that he had known the applicant for 15 or 20 years and that they had known each other in India.
Mr Verma gave evidence that he had sometimes driven on the applicant’s pin.
He said that he did 4 or 5 hours every now and then if he was getting too close to the 12 hour limit on his own pin.
He was unable to estimate more accurately than that how much he had used the applicant’s pin.
Mr Verma said that he does not believe that any other drivers used his pin, 99741, to drive.
For the fortnight commencing Monday 20 June 2016, the Tribunal observes that the applicant’s pin was in use for shifts that co-incided with shifts when Mr Verma’s pin was being used on about 10 days.
The Tribunal notes that if no one else used Mr Verma’s pin, he cannot have been using both at the same time, and further that would not have served his purpose of extending the time available to him to drive.
Therefore, those times must have represented times when either the applicant or someone else was using the applicant’s pin.
In this period the documents are potentially consistent with Mr Verma’s evidence that he used the applicant’s pin for 4 or 5 hours every now and again.
The only evidence of people other than Mr Verma using the applicant’s pin is the applicant’s own testimony.
The Tribunal finds that the applicant’s testimony is unconvincing, particularly when he insisted that he did not work more than 40 hours per fortnight but that when asked specifically about the shifts referred to in the one page printout of 30 September 2016, he said that he did not know whether he worked those shifts rather than that he did not drive them.
The Tribunal is satisfied that the various printouts show that Mr Verma was using the applicant’s pin was for at most about 19 hours of a total of about 113 hours in the fortnight starting Monday 20 June 2016. This is because save for about 19 hours the printouts suggest that Mr Verma was already driving his own cab using his own pin and his evidence was that no one else used his number.
The Tribunal notes that of the remaining period of about 93 hours that the applicant’s pin was being used, 53 hours would need to be by other drivers using the applicant’s pin.
The applicant said that “sometimes” he would forget to log off, giving other drivers the opportunity to use his pin.
For other drivers to have 53 hours of access to the applicant’s pin over 14 days, that would need to be habitual rather than occasional
The Tribunal finds that the applicant’s evidence that he did not drive over 40 hours per fortnight is unreliable.
The Tribunal finds that the applicant’s suggestion that Mr Verma is responsible for much of the driving on the applicant’s pin over the 40 hour per fortnight limit is not supported by the evidence.
The Tribunal finds that the applicant’s suggestion that his pin could have been in used by other drivers when he had forgotten to log off is unlikely and does not accept it.
The Tribunal is satisfied that during the fortnight commencing on 20 June 2016, the applicant was logged on and available to take jobs in his capacity as a taxi driver, and was therefore engaged in work as contemplated by 8105 (1) of his visa.
The Tribunal notes that the figures in relation to the rest of the time reflected in the printouts (being about 3 months to the end of September 2016) suggest similar amounts of driving under the applicant’s pin and Mr Verma’s pin.
The applicant did not suggest that there was anything about the fortnight that started on 20 June 2016 that was different to the rest of the time reflected in printouts.
The Tribunal finds that the applicant’s records show that his pin was regularly in use,for periods of more than 60 hours per week. The Tribunal further finds that when compiled into periods of a fortnight commencing on a Monday, the applicant’s pin was usually in use for more than 120 hours or about 3 times the 40 hours per fortnight that his visa allowed.
The Tribunal is not satisfied that the applicant’s pin was being used by Mr Verma or by other drivers.
The Tribunal further finds that the work did not fall under the exceptions in subclause (2).
Therefore, the Tribunal finds that the applicant has not complied with condition 8105 of the visa.
Consideration of the discretion to cancel the visa
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’.
The guidelines suggest that this Tribunal should take into account the applicant’s reasons for travelling to and staying in Australia. There is no evidence that the applicant came to or remained in Australia for any reason other than study and the Tribunal finds that this consideration tends to suggest that the visa should not be cancelled. The Tribunal accords this consideration some weight.
The guidelines also direct the Tribunal’s consideration to the extent of the applicant’s compliance with visa conditions. The Tribunal has found that over about four months the applicant was doing at least twice the amount of work that was permitted by his visa.
The Tribunal finds that the applicant’s breach of condition 8105 was significant.
The applicant submitted that the cancellation of his visa caused him stress and could not complete his study. He said that he partially completed his study and did not enrol again.
There was no medical evidence provided in support of this suggestion and the Tribunal is not satisfied that the applicant suffered from disabling stress or other psychological hardship. Further, the Tribunal is not satisfied that the applicant will suffer psychological hardship if the Tribunal cancels his visa and accords that consideration no weight against cancelling the applicant’s visa.
The applicant submitted that he does not wish to return to India with a visa cancellation.
He said that he intends to return to India and open a restaurant and that his father has bought land and has started to plan to build a restaurant on it. He said that the building will start in July or August 2019 and that it will take about 3 months to finish.

He said that that will be a good time to open the restaurant because it will be the dry season. There is no evidence that the applicant requires further qualifications to be able to run the restaurant.
The Tribunal finds that cancellation of the applicant’s visa may cause him some sadness, short of psychological hardship but possibly qualifying as emotional hardship and accords this factor a little weight against cancellation.
The applicant did not give evidence or claim that he would suffer any financial hardship by reason of the cancellation of the visa.
The applicant did submit that his wife “went into depression” because of the visa cancellation. A “Health Summary Sheet” printed by Dr Amandeep Kaur on 30 January 2019 was provided which says that she had a history of “Anxiety/stress – generalised” in 2017. The doctor does not suggest that that is linked to the visa cancellation and further there is no reason for the Tribunal to find that a decision not to cancel the applicant’s visa would ease such anxiety or stress. The Tribunal accords this consideration no weight against exercising its discretion to cancel the visa.
In relation to the circumstances in which the ground for cancellation arose, the Tribunal finds that there were no extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing. The Tribunal accords this consideration no weight against exercising its discretion to cancel the visa.
There is no evidence of past or present behaviour by the applicant towards the Department that should dispose the Tribunal to exercise its discretion to cancel the visa. The Tribunal accords this consideration a little weight against cancelling the visa.
If the applicant’s visa is cancelled, the visa of the second named applicant who is his wife, will also be cancelled. This is an ordinary and intended consequence of breach of a visa condition and the Tribunal accords it little weight against cancelling the applicant’s visa.
There is no suggestion that indefinite detention would be a possible consequence of cancellation of the applicant’s visa.
If the applicant’s visa is cancelled he will become an unlawful non-citizen and liable to detention under s 189 and removal from Australia if he does not depart voluntarily or apply for another visa ,He will have the opportunity to obtain a bridging visa to allow him to make arrangements to return home.
Cancellation of the applicant’s visa will restrict his ability to apply for further visas to Australia and he may fall within the risk factors defined in Public Interest Criterion 4013, so he may not be able to lodge an application for a visa to Australia for 3 years after he departs.
There is no evidence that there are any children who will be affected by the cancellation of the applicant’s visa and in particular, the applicant and the secondary applicant do not have children of their own.
There is no evidence of international obligations owed by Australia, including non-refoulement obligations, that would be breached by removal of the applicant to India.
There were no other relevant matters raised by the applicant for the consideration of the Tribunal.
In summary the Tribunal finds that the applicant breached condition 8105. The Tribunal has considered the circumstances of the case and the matters specifically raised by the applicant in addition to matters in PAM 3.

100. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
101. The Tribunal affirms the decision to cancel the first named applicant's Class TU visa. The Tribunal has no jurisdiction in respect of the other applicant.
Mark O'Loughlin
Member

ATTACHMENT – Schedule 8 to the Migration Regulations 1994 (extract)
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/student visa granted in relation to a masters degree by research or doctoral degree] 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.