Naigaonkar (Migration)

[2018] AATA 5487

Naigaonkar (Migration) [2018] AATA 5487 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ameya Nachket Naigaonkar

CASE NUMBER:  1722957

HOME AFFAIRS REFERENCE(S):           BCC2017/937301

MEMBER:Michelle East

DATE:15 November 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 15 November 2018 at 12:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(TU) visa – Subclass 500 – applicant worked in excess of 40 hours per fortnight – family issues – no compelling reason to stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
Migration Regulations 1994, Schedule 8, Condition 8105, 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 at 268

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant was in breach of condition 8105 of his subclass 500 student visa. That condition limits the hours of work up to 40 hours per fortnight while his course is in session. 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. The applicant appeared before the Tribunal on 14 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Marathi (Indian) and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 8 July 2017 the applicant was granted a subclass 500 student visa with condition 8105 attached.  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.  Once the course of study has commenced, the visa holder must not engage in work for more than 40 hours per fortnight (excluding certain work that is specified as a course requirement).

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: 8105(3).  ‘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. On 19 September 2017 the applicant was directed to return to work at Puma Petrol in Bayswater as a Department of Home Affairs officer wanted to speak with him.  At hearing the applicant said he was alerted to the visit and left work to visit his agent  After a discussion, the applicant admitted he knew he had a 40 hour work limitation and couldn’t provide any reasons as to why he was working 70 hours a fortnight between two businesses.

11. At hearing the applicant said he was probably working closer to 60 hours per fortnight.

12. The applicant was interviewed on 20 September 2017 after the Notice of Intention to Consider Cancellation (NOICC) was issued on 19 September 2017.  The applicant admitted to intentionally breaching his visa conditions in that interview.  The decision to cancel was made on 20 September 2017.

13. The Tribunal questioned the applicant as to whether he conceded the grounds for cancellation existed and the applicant agreed he was working in excess of 40 hours per fortnight and had been doing so for most of 2017.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

15. 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’.

16. 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 in the applicant’s oral evidence.

17. Prior to the hearing the Tribunal was provided with a submission together with several pieces of evidence.  The applicant provided:

    -A copy of his father’s death certificate dated 1997

    -A Certificate IV in Patisserie from FM Edge, course duration 4.5.18 – 27.6.18

    -A  Diploma of Management from the Kinggdom Institute of Management dated 6 April 2016

    -A Certificate IV in Business dated 11 January 2016 from the Kinggdom Institute of Management

    -An accepted offer of employment dated 24 October 2018 from Hotel Ramakrishna in Mumbai, India

    -Various medical certificates from mid-2017, December 2016 – January 2017 and November 2018 for his mother in India

    -Affidavit of his mother dated 3 January 2018 stating that her expenditure on her own medical bills and treatment have escalated in the last 6 months and she is therefore unable to support the applicant financially

    -Medical certificates for the applicant from June/July 2014 stating the applicant is suffering from stress, adjustment disorder and a mild learning disability

    -Current enrolment certificate for 22 October 2018 – 22 October 2019 with Global College Australasia for a  Diploma of Hospitality Management

    -A statement of support from his brother evidencing financial support

    -A statutory declaration from a friend stating he was aware the applicant was working extra hours due to his mother’s ill health

    -Financial information relating to his mother

    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

18. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  The applicant was initially granted a Subclass 573 visa on 12 June 2013 which expired on 11 September 2016.  He held a bridging visa from 11 September 2016 until 27 January 2017 when he was granted a Subclass 500 visa.  This initial Subclass 500 visa expired on 9 March 2017.  The applicant then held a bridging visa until 3 July 2017 when he was granted a further Subclass 500 visa.  This visa was cancelled on 20 September 2017.

19. Although the applicant has provided evidence of some study, his study history appears erratic.  The Tribunal questioned the applicant at hearing and he said he started in a Diploma of IT in June 2013 but failed 3 units out of 4.  He changed to a Diploma of Business in February 2014 and said he failed after 6 months.  He said the college gave him a warning letter and said they would cancel his enrolment.  He said he tried appealing this but was unsuccessful.  He undertook a Certificate IV in Business from October 2014 – April 2015, a Diploma of Management in second semester 2015, a Diploma of Marketing from February – August 2016 and an Advanced Diploma of Marketing from August 2016 to February 2017.  He said he started a Certificate III in Commercial Cookery in March 2017 which he continued with until his visa was cancelled in September 2017.

20. The applicant has undertaken various studies since arriving in 2013.  He said he initially failed because he found the IT coding too difficult.  He said he was committed to his studies and wished to obtain qualifications to be a professional in the food and hospitality industry in India.  He said his financial circumstances forced him to work to support himself however he still wished to maintain his studies during that time.

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

    The extent of compliance with visa conditions

22. The applicant was granted a Subclass 500 visa with condition 8105 attached.  The applicant has admitted he worked in excess of 40 hours per fortnight and did so intentionally.  The applicant has provided reasons for his working the excess hours.

23. The evidence provided indicates the applicant was working up to 70 hours per fortnight, with the work spread between two employers.  The applicant gave oral evidence at hearing that it was probably closer to 60 hours per fortnight that he was working. The applicant confirmed at hearing that he knew he was working the excess hours and did so without each employer knowing about the other.  He did say however that the previous manager at the Puma station knew of him working excess hours and was the one to inform Home Affairs.

24. Evidence regarding the applicant’s financial situation was provided and the Tribunal has had regard to it.  Despite this however, the Tribunal considers the conditions of the visa to be important.  The fact that the applicant knowingly breached that condition and did so for an extended period of time causes the Tribunal to give it significant weight in favour of cancellation of the visa.

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

25. Prior to the hearing the applicant provided evidence of potential hardship that would be caused to him and his mother should his visa be cancelled.

26. At hearing he gave oral evidence of being unable to obtain credits for studies completed in Australia towards any study he may commence in India.  He said he was now 24 and wanted to progress his studies and his career.  He said his mother was a widow and he wanted to be able to support her financially.

27. The Tribunal questioned the applicant about the accepted offer of employment at a hotel in Mumbai.  He said that was in relation to a job commencing in 2020 and he would like to complete one more year of study before starting that job.  It was conceded however that he obtained that job as a result of qualifications he had already obtained here.

28. The Tribunal accepts that there may be some hardship caused to the applicant and his mother if the visa is cancelled and gives this some weight in his favour

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

29. The applicant has submitted several pieces of evidence as well as given oral evidence of the circumstances surrounding his need to work in excess of that allowed pursuant to condition 8105 of his visa.  Namely, his mother was supporting him but suffered some ill health and was unable to continue supporting him at that time.

30. The Tribunal questioned the applicant how long he had been working these hours at two different employers and he stated since early 2017.

31. Whilst the Tribunal acknowledges the difficulty of supporting himself may have motivated the applicant to breach the condition of his visa, the Tribunal does not find that this is a circumstance beyond his control. 

32. The Tribunal finds this weighs heavily in favour of cancellation

    Past and present conduct of the visa holder towards the Department

33. The NOICC refers to the applicant leaving his place of employment with Puma, shortly after commencing his shift, when notified a Home Affairs officer was looking for him.  The applicant admitted during interview that he had gone to see his agent.

34. 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 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

35. 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.

36. There is nothing to indicate the applicant would not be able to return to India.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    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 8105 of his visa.  The Tribunal considers the breach to be significant because it was done knowingly and for an extended period of time.  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 that he left his place of employment when alerted Home Affairs were looking for him. The Tribunal is prepared to accept that some hardship may be caused by the cancellation.

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 Subclass 500 (Student) visa.

    Michelle East
    Member