Lin (Migration)

[2018] AATA 5249

Lin (Migration) [2018] AATA 5249 (11 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hui Hung Lin

CASE NUMBER:  1722508

HOME AFFAIRS REFERENCE(S):           BCC2015/2409291

MEMBER:Michelle East

DATE DECISION SIGNED:   11 December 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant's Class TU visa

Statement made on 11 December 2018 at 9:40am

CATCHWORDS
MIGRATION – cancellation – Subclass 572 Student (Temporary) (Class TU) visa – worked more than 40 hours a fortnight – dependent spouse of a student visa holder – deliberate breach of visa condition – no compelling circumstances – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116(1)(b), 140, 189

Migration Regulations 1994, Schedule, schedule 8 condition 8104, 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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 September 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 delegate cancelled the visa on the basis that the applicant breached condition 8104 of his visa by working excessive hours. 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. A copy of the delegate’s decision was provided to the Tribunal with the application for review.

4. The applicant appeared before the Tribunal by telephone on 26 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. 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

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8104 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 8104?

7. Condition 8104, as it applies in this case is extracted in the attachment to this decision. It requires that the visa holder must not engage in work for more than 40 hours a fortnight while in Australia: 8104(1). In relation to student visas, family members of the primary visa holder must not engage in work in Australia until the primary visa holder has commenced a course of study and must not do so for more than 40 hours a fortnight while in Australia except in certain circumstances: 8104 (2)-(5).

8. 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: 8104(6). ‘Work’ is defined to mean ‘an activity that, in Australia, normally attracts remuneration’: r.1.03.

9. 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.

10. The Tribunal notes the applicant was the dependent spouse of a student visa holder and that his wife held a 572 student visa.  The visa was subject to condition 8104.

11. The Tribunal finds that the applicant is a member of the family unit of the primary visa holder.

12. In the present case the applicant was allegedly undertaking work as a store worker with Pizza Express in excess of 40 hours per fortnight.  For the following reasons, the Tribunal finds that the applicant had not complied with condition 8104.

13. According to the Notice of Intention to Consider Cancellation (NOICC), officers from Australian Border Force conducted a visit to the applicant’s place of employment, Pizza Express on 8 September 2017.  The applicant wasn’t at work however the officers were provided with a copy of his shift roster for a 2 week period.  The previous week he had been rostered for 20.5 hours and the current week he was rostered for 43.25 hours.

14. The applicant was interviewed on 14 September 2017 and he advised he was responsible for creating the store roster and scheduled himself for excessive hours due to low staffing at the store. The delegate at the interview believed there may be grounds to cancel the applicant’s visa under s. 116(1)(b).

15. The applicant has provided a copy of a group certificate for the 2017/2018 financial year indicating gross payments of $4099.At hearing the applicant confirmed he earned $19 per hour and was paid in cash. 

16. The applicant conceded in his oral evidence that he had breached the working conditions of his visa.  On the basis of the evidence before it the Tribunal is satisfied that the applicant was engaged in ‘work’ as defined in r.1.03 at Pizza Express in Cockburn.  On the basis of the evidence before it the Tribunal is satisfied the applicant worked 64.15 hours in the week before and after the date of the visit by the Department’s officers on 8 September 2017.

17. Therefore, the Tribunal finds that the applicant has not complied with condition 8104 visa.

    Consideration of the discretion to cancel the visa

18. 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’.

19. 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 the applicant’s oral evidence.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

20. With respect to the purpose of the applicant’s travel and stay in Australia, the Tribunal accepts that the applicant was a dependent on his wife’s student visa.  The applicant said he was working however has conceded they did not need his extra earnings to support them.

21. The applicant was unable to provide any compelling reasons to travel to Australia.

    The extent of compliance with visa conditions

22. There is no evidence to suggest the applicant has not complied with any other conditions of his visa.

    Degree of hardship that may be caused (financial, emotional, psychological or other hardship) to the visa holder and any family members

23. The applicant in his interview stated that he did not depend on the extra income to support himself or his wife in Australia.  He said that his wife relies on him for emotional support and may be affected if he had to leave.

24. The Tribunal notes the applicant has been offshore since March 2018.

25. The Tribunal questioned the applicant about any hardship to either himself or his wife.  He said they had been separated since March 2018, with his wife visiting him once in October.  He said it was very challenging for their marriage to be separated for long periods of time.

26. The applicant advised his wife had completed her studies and had obtained a graduate visa and moved to Darwin to work as a cook.  The Tribunal notes that this was a decision undertaken by the applicant’s wife that has furthered their separation.

27. The Tribunal finds that although the applicant and his wife are separated, to some extent that is within their control.  That is, the applicant’s wife had the choice of returning to Taiwan at the completion of her studies rather than taking up a job in Darwin and applying for a different visa class.

28. The Tribunal finds this weighs in favour of visa cancellation.

    Circumstances in which the ground of cancellation arose.  Were the circumstances beyond the visa holder’s control

29. The applicant in his interview said that he was responsible for making the rosters at work and had rostered himself on due to staff shortages.  The applicant said he had told his boss they needed to employ extra staff but the owner refused.  He said he then had no choice but to work the extra hours.

30. The applicant further said in his interview, which is reflected in the decision record that he was not dependent on the income to support himself or his wife.

31. The Tribunal finds that the circumstances in which the ground of cancellation arose were not beyond his control and finds this weighs heavily in favour of cancellation

    Past and present behaviour of the visa holder towards the department

32. The applicant has admitted a deliberate breach of the condition of his visa which was done knowingly and not in circumstances beyond his control.  Whilst nothing adverse is known about any other past and present conduct towards the Department, the applicant has conceded he engaged in a deliberate breach of his visa condition.  The Tribunal finds this weighs heavily in favour of cancellation.

    Whether there are mandatory legal consequences such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

33. The delegate’s decision indicates that if the applicant’s visa were to be cancelled he would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia.  Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.

34. The applicant has been offshore since March 2018 and is working as a real estate agent in Taiwan.

35. The applicant indicated at interview that he did not want any negative record which may affect his future intentions to return to Australia.

36. Whilst the Tribunal acknowledges the applicant’s desire to keep his options open, that alone is insufficient to weigh in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

37. There is no evidence before the Tribunal that there would be consequential cancellations in this case.

    Whether any international obligations would be breached as a result of the cancellation

38. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

39. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8104 of his visa.  The Tribunal considers the breach to be significant because it was done knowingly.  Even though the applicant said he was confused as to whether he was breaching the conditions of his visa, he worked well in excess of the permitted hours.  The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa.  It will not be in breach of Australia’s international obligations.  The Tribunal is concerned that there was a deliberate breach of the condition by the applicant and he did so of his own volition.  The Tribunal is prepared to accept that some hardship may be caused to his wife by the cancellation and for the applicant’s future possible plans to return to Australia.

40. The Tribunal recognises that the cancellation of the visa is a significant matter.  However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

41. The Tribunal affirms the decision to cancel the applicant's Class TU visa.

    Michelle East
    Member

    
    

    ATTACHMENT – Relevant extracts of Schedule 8 to the Migration Regulations 1994

    8104(1)     Subject to subclauses (2) to (6), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia.

    (2)If the holder is a member of the family unit of a person who satisfies the primary criteria for the grant of a student visa, the holder must not engage in work in Australia until the person who satisfies the primary criteria has commenced a course of study.

    (3)If the holder is able to engage in work in accordance with subclause (2), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia unless subclause (4) or (5) applies.

    (4)Subclause (3) does not apply if:

    (a)     the visa for which the primary criteria were satisfied is:

    (i)a Subclass 573 (Higher Education Sector) visa; or

    (ii)a Subclass 574 (Postgraduate Research Sector) visa; and

    (b)    the course of study is a course for the award of a masters or doctorate degree that is registered on the Commonwealth Register of Institutions and Courses of Overseas Students.

    (5)Subclause (3) does not apply if:

    (a)     the visa for which the primary criteria were satisfied is a Subclass 576 (AusAID or Defence Sector) visa; and

    (b)    the course of study is a course for the award of a masters or doctorate degree.

    (6)In this clause:

    fortnight means the period of 14 days commencing on a Monday.