Lissy (Migration)

[2019] AATA 1987

Lissy (Migration) [2019] AATA 1987 (22 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Madamana John Lissy

CASE NUMBER:  1716063

DIBP REFERENCE(S):  CLF2015/52468

MEMBER:Justin Meyer

DATE AND TIME OF

ORAL DECISION AND REASONS:          22 March 2019 at 12:57 pm (VIC time)

DATE OF WRITTEN RECORD:                1 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 May 2019 at 5:39pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – Federal Court remittal – jurisdictional error – Diploma of Hospitality Management – work rights – worked in excess of 40 hours per fortnight – worked full-time hours – credibility issues – anonymous allegation – family illness – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 359A, 375, 376
Migration Regulations (Cth) 1994, rr 1.03, 2.43, condition 8105

CASES
Minister for Immigration and Border Protection v Singh [2016] FCAFC 183

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 August 2015 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 25 August 2015 made by a delegate for the Minister for Immigration to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa, under section 116(1)(b) of the Migration Act. The delegate cancelled the visa under section 116(1)(b), on the basis that the applicant had breached condition 8105 of her student visa, and that factors in her favour did not outweigh the factors for cancellation of the visa.

4. The applicant provided a copy of the notice of intention to consider cancellation – the NOICC – and decision record to the tribunal.  The issue in the present case is whether the ground of cancellation is made out, and if so, whether the visa should be cancelled.  The progress of the case is that it was appealed to the Administrative Appeals Tribunal and heard, and affirmed by the member in that particular case.  However, the matter was appealed to the Federal Circuit Court, and by order of Judge Hartnett on 12 July 2017, the court ordered, by consent, a remittal, noting that the first respondent concedes that the second respondent denied the applicant procedural fairness, and that this constituted a jurisdictional error of the kind found in. 

5. A delegate of the first respondent issued a certificate pursuant to section 375(a) of the Migration Act on 4 July 2016, and the existence of the certificate was not disclosed to the applicant in the course of the review by the second respondent, and at least some of the documents subject to the (indistinct) the certificate were relevant, or potentially relevant to the issues arising on the review of by the second applicant. So the tribunal has considered the issue in the present case, as to whether the applicant, as a holder of a student visa, has breached condition 8105 of Schedule A to the Migration Regulations 1994, the applicant has breached that condition under section 116(1) of the Act; the visa may be cancelled.

6. Did the applicant comply with condition 8105?  Condition 8105, as it applies in this case before the tribunal, 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 section 574 visa holders who have commenced a master’s degree by research or a doctoral degree, which is not the case here. 

7. 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.  Under 8105, “work” is defined to mean an activity that, in Australia, normally attracts remuneration under rule 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.  The test is to be applied as an objective one.  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 factors of the case, assist in determining whether a particular activity undertaken voluntarily is one that normally attracts remuneration. 

8. The NOICC sets out the following.  On Monday, 24 August 2015, at 2.50 pm, Australian Border Force compliance officers located you working at Coolpac Pty Ltd, Factory 2, 28 Green Street, Doveton, Victoria 3177, during an employee awareness campaign business visit.  On location, you were on the warehouse floor, wearing protective gloves, and the operation manager, David Smilie, stated that you were on shift that day.  Upon further discussions with the Coolpac Pty Ltd director, Andrew Gibson, he stated that you had been employed with the business for the past three years, and although contracted casually, you usually worked full-time hours. 

   Administrative payroll staff from Coolpac Pty Ltd provided your employment details dating 1 January 2015 to 24 August 2015.  Omitting one fortnight in January 2015, these employee records illustrate that you have been working in excess of 40 hours a fortnight.  From the above, I believe there is a possible breach of condition 8105, work limitation imposed on your current visa, TU572, under section 116(b), and your visa is liable for cancellation. 

9. In the present case, the applicant was allegedly undertaking work at Coolpac Pty Ltd.  For the following reasons, the tribunal considers the applicant’s response.  The applicant responded to the NOICC at the interview and said:

   Currently I am studying a Diploma of Hospitality Management.  I have almost completed the course, which is to finish 2 October.  If you do not cancel my visa, I can finish my study, which I have paid for.  The course is part of a two-year course.  I have completed Certificate III in Hospitality and Certificate IV in Hospitality.  The course I am doing now is all part of it.  If I finish the course, I will have completed all of my studies.  If not, it will all be for nothing.  I didn’t realise I was only allowed to work 40 hours a fortnight.  I thought I could work 40 hours a week.  It was my mistake.  Also, work didn’t ask anything about the visa status or anything.  I thought it was okay. 

10. At the hearing today, I have discussed with the applicant her history in Australia.  She arrived in Australia in 2010, to commence study.  She is 35 years old.  She comes from India.  She supported herself financially through a part-time job.  This was to assist her with living expenses.  This study was also funded partly through her a bank loan which she obtained, and through her family’s partial financial help.  She said she got a part-time factory job in Doveton, and she worked as a casual.  She is not married and she does not have children.  She has never married, and she does not have a partner. 

11. She has no family in Australia.  She does have some friends in Australia.  She lives in a share house with some other people, which is partly Indian in composition.  She agreed that an inspection took place at the factory in which she worked.  She did not finish her Diploma of Hospitality Management.  She has got Certificate III and Certificate IV in Hospitality, but needed to complete her Diploma in Hospitality Management in order to return to India and work in the hospitality industry, which was her plan. 

12. She has undertaken, in her evidence, no study since 2015.  The bridging visa which she was on says "no study."  The bridging visa do not allow work to occur either.  She states that she has neither worked nor studied since 2015.  She said since that period, she has been waiting for a decision.  This is a period of almost four years, and had taken longer than she expected.  She has survived with the help of a few friends and Salvation Army. 

13. The applicant was asked about her employment, and as to whether it was a full-time job at Coolpac.  She said that it was not; it was a casual job, where she would be called up from time to time.  She said that if she did not go, she would not have got the job.  The applicant was asked what a longer working week was for her in her time at this Coolpac factory.  She said in a week, it was only for four to five hours a day, and this would enable her to attend college.  There were the occasional weeks in which she worked for four days, from Monday to Friday.  She said her hourly rate started at AUD16, and eventually became an AUD20 maximum hourly rate by the time she finished her employment there.  This would mean that she obtained possibly AUD80 to AUD100 per day, and in the longest stretch of a week, where she worked the most, she said this could have amounted to approximately AUD400 per week. 

14. I have discussed the issue and reasons for cancellation with the applicant.  She said that she did not know about the visa condition 8105, and she had only first heard of it when the visa was cancelled by the Department.  I have asked the applicant whether she ever saw it written on the visa, and she said that although she had read the visa and the documents accompanying it, she was still not aware of the condition, and that she did not realise that she was breaching a condition. 

15. I talked to the applicant about whether she had socialised with other students, and it appears that she had not talked to them a great deal, or to others who are familiar with the area.  The applicant said that she had not talked to them about work, and that the friends tended to be busy with their own lives.  I asked the applicant whether the college that she studied at had ever told her, and she said that they had never told her.  She said that she does not have a recollection of seeing the visa condition of not working in excess of 40 hours per fortnight; she had not seen this in writing.  The applicant said that she had not discussed this with friends, and was not aware that this was a well-known or even known stipulation under certain student visa conditions. 

16. The applicant said that presently she lives in a shared property and pays $80 from time to time to contribute to such matters as utilities.  She said the people that she lives with are very generous towards her, and she rarely has money, but sometimes friends give her money.  She gave an example of a friend that had possibly given her money at Christmas time, or similar end-of-year gifts.  The applicant says that had received financial support from her family in the past, but now, she does not receive support over the last few years.  She said that because of financial hardship, her family were not able to support her, and she, because of her financial hardship, was not able to support her family. 

17. The applicant said that the family that she lived with were people that she learned of when she was looking for accommodation, and they had ethnic Indian and Fijian backgrounds. 

18. The tribunal discussed with the applicant her father’s medical condition.  Her father’s medical condition is described in documents which were submitted to the tribunal, from the Travancore Medical College and Hospital, the department of nephrology and kidney transplantation, with the date of admission 20 December 2014, for the applicant's father, who received serious renal treatment, and a renal allograft recipient.  He is a kidney transplant recipient. 

19. This document runs into several pages of compositions and elements within – bacteria report, urine report, blood report, and various other reports.  I find that the applicant’s father was seriously ill with renal failure at the time he received a kidney transplantation.  I also find that the applicant was supportive of her family at that time, and I find that some moneys went back to her family from time to time, including payments of $500 on an ad hoc basis, and they were payments made to support the family generally, rather than pay for the medical treatment.  The medical treatment cost, overall, the equivalent of AUD100,000, and was a very expensive treatment.

20. I have put to the applicant further information under section 359AA of the Migration Act, and also, in that context, I have supplied the applicant with a copy of the section 376 certificate from the Department of Home Affairs. This is a certificated dated 4 September 2018. It appears that there has been a previous certificate that the tribunal, in its earlier hearing, was not aware of, or was not on the tribunal’s file. This appears to be a certificate subsequently issued. The certificate stated:

    I notify the AAT that section 376(1)(b) of the Migration Act applies to the source information received in the Border Watch allegations team via a web form on 3 June 2015, contained in TRIM, reference OPD2016/79179. As this information was given to the Department of Home Affairs in confidence, section 375(a) of the Act does not apply. The AAT’s use and disclosure of this information is subject to the provisions of section 376(3) of the Act.

21. I have given consideration to the certificate, and I find the certificate to be valid.  The release of the material under it is discretionary to the tribunal, and it is information which is relevant to the review of the tribunal.  The information referred to in the certificate is in the form of a ‘dob-in’ that is made to the Department, and the contents of this document were relayed to the applicant.  The applicant was given the certificate, and given the opportunity to make a comment on the validity of the certificate.  Although the certificate is couched in quite technical terms, the tribunal endeavoured to explain the implications of the certificate, and while the tribunal found the certificate to be valid, the applicant did not raise an objection to the validity of the certificate.

22. The information relayed under section 359AA and, in turn, under the certificate the information was sourced from a source that wishes to remain confidential in relation to the applicant. The applicant is named. The applicant is stated to have been working illegally after her visa was cancelled. It stated the applicant never attended university when she was on a student visa. It said that she got the visa, and then worked full-time in a factory called Coolpac. It said that she lodged an application to the tribunal for the sake of applying for a sponsorship visa, by investing money in the restaurant, and she is working cash in hand.

23. It then nominates the place where she is working as a cleaner for cash.  It then states the start and finish times of 9 am to 5 pm.  It states an address of a location in Victoria.  It states that after 5 pm, she is working in another place as a cleaner, between the hours of 7 until 10 pm.  Her contractor name is named.  It states that she is not being paid through her account; that she is being, in fact, paid through a different account number.  It refers to her car registration number, and make and model of the car.  It states that she is not obeying immigration rules and regulations.  It states the Immigration Department must take prompt action. 

24. The tribunal put this information to the applicant, and the applicant responded that the information had already been dealt with on previous occasions within the review process.  She said that friends have got angry with her.  She knew who this complainant was, and they would complain because of an issue that they had with her.  She said that she had dealt with this at the previous hearing.  She said that if people wished to complain, that she could not stop them. 

25. Now, further information was provided under section 359(a) of the Migration Act, in relation to information from Coolpac Pty Ltd, which are the payroll sheets, indicating that after January 2015, she had worked in excess of 40 per fortnight. I have put that information to her, and provided her a copy with those pay sheets that indicate that on numerous occasions for the first seven months of 2015, she worked for periods in excess of 40 hours, including figures such as 68 hours and 70 hours over a fortnightly period, and was paid accordingly. The applicant told the tribunal, after consideration being given she said that this document was true and correct. She was asked if she had anything else that wished to say, to which she replied that she understood the hours, and that she had indeed worked more than 20 hours, and that this indeed was the situation.

26. I have explained, in relation to the first item under the 376 certificate, that I did not know who the dob-in communication was from.  I explained that the information might be relevant, as it might indicate that she had worked in excess of the number of hours permitted, and that she was intending to mislead the tribunal, where she has earlier said that she had only worked just shy or just more than, slightly more than the 40-hour fortnightly limit, and that 68 hours, for example, over a fortnightly period, is well in excess. 

27. Her response does not satisfy the tribunal, and it occurs to the tribunal that this length of work over a prolonged period in 2015 is not consistent with her evidence about working short of the 40-hour fortnightly limit, or slightly more than the 40-hour limit.  I therefore have issues about the credibility of the applicant's response, and I am not satisfied with her response to the information.  In regards to the information on the dob-in, I find that although it is anonymous, and I generally give lesser weight to anonymous and non-particular dob-ins, I find here that the person who has identified information which I know to be true, such as the date of birth and when she worked at Coolpac, I give it greater weight, and it gives the allegation a more believable flavour.

28. I note that the applicant has said that this is from people who, for whatever reason, have fallen out with her, or have an issue with her, and wish to say this, and that they can make those allegations.  But I do not find it is consistent with the other evidence, or that this is in fact information that can be discounted, and I do give this information some weight, to indicate that the applicant has been working knowingly in excess of hours, and it affects her credibility, as to whether she knew or did not know that the visa could be cancelled because of non-compliance with the work stipulations.     

29. Therefore, the tribunal is satisfied 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 the condition of the visa, the tribunal must consider whether to exercise its discretion to cancel the visa.  There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion.  However, the tribunal has had regard to that, as raised by the visa holder, as to why the visa should not be cancelled, and the other policy guidelines contained in the Department’s Procedures Advice Manual, PAM3. 

30. The applicant had stated in the hearing that she has almost completed her studies, and that if her visa would not put back on foot, she would have wasted her study period, and she would not be able to qualify for the qualification, the diploma that she was seeking, and work in the hospitality management area in India.  The tribunal also noted that she claimed that she was not aware that she could not work for more than 40 hours.  The applicant provided a submission to the tribunal in the earlier hearing, and she had repeated that submission once again, but it is undated.  It was received by the tribunal on 15 March 2019, and it reads as follows:

    I am writing in relation to the cancellation of my student visa TU572 on 24 August 2015, as the compliance officers located me working overtime at Coolpac Pty Ltd, Factory 2, 38 Green Street, Doveton, 3177.  I arrived in Australia on 2010 to pursue my study.  I have completed all courses I took in Australia, except for the last, Diploma in Hospitality.  I have partially completed the Diploma in Hospitality, 80 per cent, which I have paid for, and I am yet to finish another two units of the course.  I attach herewith the tribunal from the college, along with all other documents. 

    My career and future all depend upon the decision of the Department, and I strongly believe that the tribunal will grant a favourable decision in regards to my student visa.  The year 2014/2015 as a whole was very stressful for me.  My father, Mr John Madamana Varkey, was seriously ill due to kidney diseases.  Doctors said there was no hope in this case, unless we find a new donor who is willing to donate a kidney for my father.  And we finally found a donor, Mrs Mini Aswathy.  The surgery went well, but it cost our family a fortune, which was too much money to afford.  At this situation, everyone in my family was looking forward to me, since I was in Australia. 

    During that time, I worked without realising that I should work only 20 hours a week.  My work manager also didn’t notify me anything regarding my work limit, so I thought it was fine, that I was doing right.  And also, there was too much pressure from my family to cover the hospital expenses.  My state of mind during that period was so distressing, and became even worse when my visa got cancelled.  I came to Australia with very high hopes.  I wanted to complete my course in Australia, and to attain an Australian academic certificate, which is of great value in my future academic endeavours.  Hereby I also attach the evidence of my father’s medical details for your reference. 

    I am now convinced that I made a mistake in working for more than 20 hours a week.  I admit my mistake, and I apologise for not following the norms properly, by working more than the allowed time limit.  I hereby promise that I will follow the norm of working only 20 maximum hours a week.  Please be kind enough to consider my request on humanitarian grounds to complete my Diploma in Hospitality by granting the visa. 

1. Also included with the statement were medical records relating to her father, transcripts of courses, and a letter in relation to her study of the Diploma of Hospitality, and a new offer of enrolment for a Diploma of Hospitality Management from the Imperial College of Australia. 

2. Now, considering the factors to do with the discretion: 

   (1) the purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia.  In the response in the NOICC interview, the applicant says she came in 2010, to study and get a good education, and improve her English.  She spoke of how a certificate from Australia is recognised around the world, and people will take Australian qualifications.  She wanted to study, and her submission, she reiterated this, and at the hearing she repeated this, and said that it was to get a good education, it would be good for her career to get courses and certificates.  She also emphasised the importance of getting her diploma, and that, without this particular diploma, she could not pursue her goals in Australia.  So I accept that the applicant’s purpose was to study in Australia, not some other purpose, so I give some weight to – in favour of the visa not being cancelled in this respect;

   (2) The extent of compliance with visa conditions.  The applicant said that she had attended class regularly, and she passed her subjects.  She had been successful in the various certificates, and had supplied those certificates to the tribunal, such as the Certificate IV in Business, Diploma of Building and Construction, Certificate IV in Commercial Cookery, and also a letter of offer from the Imperial College of Australia, which to study a Diploma of Hospitality Management. 

3. When I discussed with her the concern that I had about her working in excess of 40 hours, she said that she had done so to help her father, and was not aware of the requirement.  Nonetheless, I have concerns about this, for the simple reason that the applicant is an intelligent and capable person.  The applicant has completed another qualification.  The applicant is fluent in English, and is 35 years old.  The applicant I find gave very puzzling evidence, however, that she had not read a basic visa condition that is attached to her passport, and I do not accept that the matter had never been raised, until the visa cancellation, in general parlance and conversation in the student circles in which she moved at the university of college in which she studied, which had an obligation to inform her explicitly of work rights restrictions. 

4. I also find her remarks that her employer did not inform her at any point to be a matter of concern.  If this is the case, then this employer is falling short of its obligations.  A period of time in which she has been in breach has also led me to doubt that she had done this inadvertently, as this is a period over a number of years – at least three years working at Coolpac alone.  So I have decided to give little weight to her claims that she breached the condition inadvertently.  It is explained clearly.

5. (3) The third matter is the degree of hardship which may be caused; financial, psychological, emotional or other hardship.  In her NOICC interview, she said that she could not finish the course; she just wanted to stay and study, and that would affect her career if she could not do so.  She spoke in that interview about how her father had gotten gravely ill.  And while I concede that this is true, she gave later evidence in this particular hearing that her father has now recovered.  He is the recipient of a kidney transplant.  He is 75 years old, and his health position has improved considerably.  At this point, there does not appear to be a need for further funds to her father or her parents for any medical care, and she is indeed not doing so. 

6. I also have quite serious doubts about the applicant’s evidence that she survives – living over a period with any work whatsoever.  I do not accept that this is a likely scenario, that she occasionally pays AUD80 to contribute to utilities, and that others fund the rest of her life.  This was a puzzling account to the tribunal, that the applicant has basically lived so impecuniously for so long.  The tribunal was concerned about the vague evidence of how she makes ends meet.  Whilst it is possible to make ends meet through the donations and help of others, she was quite lacking in specifics as to how this occurred.  So I give little weight to the degree of hardship that may be caused. 

7. I find that emotionally and psychologically, whilst it is difficult to be in an appeal situation, this is a common occurrence across the board, and does not apply in any particularly strong way towards the applicant.  And I also find that the psychological and emotional factors which were previously an issue before her at the NOICC interview have been almost all but alleviated through the recovery of her father.  I accept that there may be some hardship for her and her family – the visa remains cancelled – but I do not accept that they are such hardship that will be significant.  She has qualifications, and she has certificates in a number of areas, and the tribunal does not accept that the applicant could not return to India and could not do work in India. 

8. The fourth aspect is the circumstances in which the grounds for cancellation arose, if the cancellation is being considered.  A relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where there are circumstances in which the grounds for cancellation arose were beyond the visa holder’s control.  So the tribunal finds that the earlier part of that aspect is not met, in terms of circumstances beyond the control. 

9. The tribunal finds that the matter has been discussed with applicant, in terms of her work obligations, and these matters are within the applicant’s control and field of knowledge, and should have been considered and studied.  Whilst I have a certain amount of concern about the status of her family and her father’s health, I note once again that this has been largely alleviated and ameliorated, in terms of the factors that I am discussing above. 

10. The next factor is past and present conduct of the visa holder towards the Department.  The decision record notes that the applicant was cooperative and forthcoming with questions that were asked, and I accept this, and give some little weight in favour of the visa not being cancelled. 

11. The next factor is the matters of the breach of rule 2.43(1)(a) by Subclass 57 visa holder, mitigating compassionate and compelling factors.  This is not relevant. 

12. The next factor is 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 would prevent a person from making a valid visa application without the Minister’s intervention.  The applicant was asked what would occur in the event of her cancellation, and she discussed, in the abstract, of having to return to India without the qualification that she sought.  But on the evidence before me, there is no evidence that the applicant will become unlawful or be subject to detention because of the situation, and I give this factor no weight. 

13. The next factor is whether there would be consequential cancellations under section 140.  There is no evidence of this, and I give it no weight.  There are also no international obligations that would be breached as a result of the cancellation, and on the evidence before me, there are not, and I give this matter no weight. 

14. Any other relevant matters is the final factor, and I discussed with the applicant her level of qualification and her ability to go back to India and use those qualifications and diplomas, and I do not accept that there are any other relevant matters that would prevent her from returning to India, and either making use of her qualifications or living a life in India in reasonable circumstances. 

15. I have given regard to the submission made to the tribunal and the attachments, as well as her evidence in the hearing.  I do not accept, however, from her claims that they explain or excuse her from working in breach of condition 8105, for the significant period of time that she did; nor was she able to satisfactorily explain why she needed this diploma, having not worked in the area, and having already had two qualifications at the same or similar level.

16. Considering the circumstances as a whole, the tribunal concludes that the visa should be cancelled. 

    DECISION

17. The Tribunal affirms the decision under review.

    Justin Meyer
    Member