Naigaonkar (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant, Mr. Naigaonkar. The dispute arose because the applicant worked in excess of the 40 hours per fortnight permitted by his visa conditions. The Tribunal was tasked with determining whether the grounds for cancellation existed and, if so, whether the decision to cancel the visa should be affirmed.

The primary legal issue before the Tribunal was whether the applicant had breached his visa condition 8105, which restricts student visa holders to working no more than 40 hours per fortnight once their course of study has commenced. The Tribunal also had to consider whether, having found a breach, there were compelling reasons to exercise discretion and not affirm the cancellation of the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had indeed breached condition 8105, admitting to working approximately 60 to 70 hours per fortnight. The Tribunal applied the objective test for determining "work" as established in cases such as *Braun v MILGEA* and *Kim v Witton*, considering the context and remuneration of the activity. While the applicant presented evidence of family issues, including his mother's ill health and financial difficulties, and a history of study, the Tribunal noted his erratic study progress and the fact that the visa's purpose was to enable study. On balance, the Tribunal concluded that the circumstances did not warrant exercising discretion to set aside the cancellation.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 visa.