Lissy (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa. The cancellation was based on the applicant allegedly breaching condition 8105 of her student visa, with the delegate finding that factors favouring the applicant did not outweigh those favouring cancellation. The Administrative Appeals Tribunal had affirmed this decision. However, the Federal Circuit Court had previously ordered a remittal of the matter due to a conceded jurisdictional error, specifically a denial of procedural fairness to the applicant when a certificate under section 375(a) of the Migration Act was issued and its existence, along with relevant documents, was not disclosed during the tribunal's review.

The Administrative Appeals Tribunal was required to determine whether the applicant, as a student visa holder, had breached condition 8105 of the Migration Regulations 1994, which would then justify cancellation under section 116(1) of the Migration Act. Specifically, the tribunal had to consider whether the applicant had complied with the requirement not to work more than 40 hours per fortnight after commencing her course of study, excluding work that was a specified course requirement. The tribunal also had to interpret the definitions of "fortnight" and "work" as provided in the regulations.

In its reasoning, the tribunal noted that "fortnight" is defined as a 14-day period commencing on a Monday, and "work" is an activity that normally attracts remuneration in Australia. The tribunal acknowledged that determining whether an activity constitutes "work" involves an objective evaluation of its context, distinguishing it from activities of a domestic or social nature. The assessment requires considering various factors, including commercial, social, domestic, or altruistic motivations, to ascertain if a voluntarily undertaken activity would typically attract payment. The tribunal was tasked with applying these principles to the specific circumstances of the applicant's activities.