NG (Migration)

[2019] AATA 1988

NG (Migration) [2019] AATA 1988 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MAN YAN NG

CASE NUMBER:  1727826

HOME AFFAIRS REFERENCE(S):           CLF2017/59826

MEMBER:Stephen Witts

DATE DECISION SIGNED:  2 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2019 at 9:52am


CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – restaurant employee – breached working conditions – worked more than 40 hours per fortnight – worked 44 hours per week – section 251 warrant – staff records genuine timesheets – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 189, 198, 251
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, Condition 8104

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 3 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant's Subclass 500 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 was in breach of visa condition 8104 in that she was working full-time with an average of approximately 44 hours per week. Visa condition 8104 stipulates that the applicant is only permitted to work up to 40 hours a fortnight while in Australia. 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 did not appear before the Tribunal on 2 May 2019 to give evidence and present arguments. On that basis, the Tribunal has determined the matter on the papers before it.

4. 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

5. 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?

6. 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. 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 involving masters or doctoral degree courses.

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

8. 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.

9. According to the delegate’s decision record the applicant held a TU 500 visa that was subject to condition 8104. This visa condition stipulates that the applicant is permitted to work up to 40 hours a fortnight while in Australia. On 25 July 2017 Australian Border Force officers attended XNN Pty Ltd trading as Roast Duck Inn at 29 Carrington Street Box Hill for the purpose of executing a s.251 Migration Act warrant. According to the delegate during the execution of this warrant evidence of hours worked by staff was obtained in the form of photographs of timesheets and staff contact details. The applicant was identified on these timesheets. According to the delegate these timesheets indicated that for the period of 5 April 2017 to 27 May 2017 the applicant was working full-time with an average of approximately 44 hours per week.

10. According to the delegate in her oral response to the department’s Notice of Intention to Consider Cancellation (NOICC) the applicant stated that the records obtained during the warrant were inaccurate and that she only work two days a week. According to the delegate the applicant saw a position that was advertised in the window of the restaurant and that she was subsequently employed on a casual basis for the business, replacing other staff. According to the applicant on commencement of employment she told the manager about her work limitation. She subsequently left her job on 18 July 2017.

11. According to the delegate in her written response to the NOICC the applicant stated that she did not accept that she failed to comply with visa condition 8104. According to the delegate the applicant’s point of view was that the timesheets photographed during the warrant are rosters detailing staff availability and not records of hours worked by staff. It was noted by the delegate that these records sighted during the warrant were clearly records of hours worked by staff showing total hours worked calculated and detailed the end of each shift for each staff member in a daily column. The delegate further contended that in an interview with a director of the business that director confirmed that this record was used to calculate staff pay and that it was not a roster specifying staff availability. Based on this the delegate was satisfied that the documents photographed during the warrant were in fact timesheets and evidence of actual hours worked by the applicant for those specified periods.

12. According to the delegate, based on this the delegate found that the grounds for cancellation under s. 116(1)(b) were made out.

13. The applicant also provided a statement to the delegate (AAT file folio 6) which stated that:

    “My name is Man Yan Ng. I had my student dependent visa cancelled on 3 November 2017. I am writing this letter in response to the cancellation of my visa.

    According to the immigration officer assessing my case, I was reaching the visa condition 8104 which permit the visa holders to work up to 40 hours fortnightly. I understand that I have working hours limited and I have been always strictly obeying the condition.

    According to the officer, it is evident that I have been working about 44 hours a week for the period 5 April 2017 to 27 May 2017 through the investigation of the timesheets photographed. I confirmed that I appeared on the timesheets as “ “. However, those time listed on the timetable is just our time availability is instead avail real working time. I joined ROAST DUCK INN as a casual employee by coincidence that one day I was passing by and saw they are hiring people. I was not intensely looking for a job. Instead, I was just hoping to gain some life experience and to support myself a little in order to release my parent’s financial burden a little. I told the manager that I can’t do full-time job as I clearly know my work condition as a dependent visa holder and more importantly, what I would like to concentrate on is to take care of our family issues rather than to be occupied too much by the job. Then I was asked to write down my available time and left my contact number that I was told to wait being called if they need more hands. I wrote down several timeframes and I told the manager that I could only work for maximum one of those timeframes as I have to make sure I have enough time to care about my boyfriends and my daily life. Actually I have never become a regular part-time worker. Instead I am just doing some casual work replacing others occasionally. The manager will call me one day before if I am needed to replace other shifts. However, in fact, I was not often needed at the day immigration officers attending our restaurant, I was happening to be replacing one regular worker who couldn’t work that day as arranged. Although I don’t remember exact working hours for the period 5 April 2017 to 27 May 2017 pointed out by the officer, I still can be sure that it is less than 20 hours in total as they had many regular workers at that time without much a vacancy for casual workers.

    I was paid by cash and I didn’t realise that I was underpaid. Actually I was just hoping to connect more with people through meeting colleagues and customers and to support myself a little instead of caring too much about how much money I could make. But I can be sure that I got no more than 1000 dollars since I started working here for months.

    My boyfriend is currently studying intensively that I am taking the responsibility of looking after our daily life which occupies me for most of the day. I usually have to spend much time on shopping, cooking, housecleaning and for leisure time, my boyfriend and I travel around a lot, which in fact, doesn’t leave me much time to work and soon I realised it was a meaningless job from which I learn nothing and I was planning to quit. Actually my boyfriend doesn’t support me to work here as he believes he could support me financially with no need to make money on my own.

    As per the immigration officer stated in the form 1099 that they are intending to cancel my visa under section 1161b as I breached the visa condition 8104. However, I am sure that I didn’t work overtime was I was working in ROAST DUCK INN and because it doesn’t indicate other visa conditions I breached, I believe there is no reason to cancel my visa.

    If my visa was cancelled, I will be separate with my boyfriend. I am rather worried that the long distance relationship will end up with breaking up as we have seen too many examples that the love and passion fades away due to separation. I clearly know the results of breaching visa conditions and I won’t challenge immigration regulations to risk my visa.

    I quit the job on 18 July 2017 because neither my boyfriend nor my parents support me to continue working there especially when they know my hand was injured in the kitchen. And that day the immigration department office paid a visit was my last working day there.

    In conclusion, the time listed on timesheets as the investigation evidence is our time availability is rather than our working schedules. I don’t have the intention to work in excess of 40 hours fortnightly, which is not the truth either.

    Thank you for your time reading through my statement and please consider my case and I hope my visa will not be cancelled.”

14. As above, the Tribunal notes that the applicant did not appear before the Tribunal on the date set for the hearing. On that basis the Tribunal has determined the matter based on the evidence before it.

15. Having considered the delegate’s decision and the material in the delegate’s file and in the Tribunal file, and having considered the evidence presented by the applicant, specifically the applicant’s response to the NOICC, the Tribunal finds that the applicant was in breach of visa condition 8104. Further, the Tribunal finds that the applicant had been working an average of approximately 44 hours per week between 5 April 2017 to 27 May 2017 via the detailed staff records investigated during the search of the Roast Duck Inn. The Tribunal is also mindful that in interview that a director of the company that owned this business also stated that these staff records were genuine timesheets and evidence of actual hours worked by the applicant for those specified periods.

16. For these reasons, the Tribunal finds that the applicant has not complied with condition 8104.

17. Therefore, the Tribunal finds that the applicant has not complied with condition 8104 of the 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 any submissions provided to the Department and the Tribunal, and also the evidence taken at the hearing at the Tribunal.

20. According to the delegate’s decision record

    ·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

21. As stated above the applicant did not appear before the Tribunal and the Tribunal has no other evidence before it other than the material previously provided by the applicant to the delegate in the delegates file and to material provided to the Tribunal in the AAT file.

22. The Tribunal has considered this material, in particular the statements made by the applicant that she has a boyfriend here in Australia, and finds that the evidence presented does not establish that the applicant has a compelling need to remain in Australia.

    ·the extent of compliance with visa conditions

23. The Tribunal has found that the applicant was in breach of her visa conditions by not adhering to visa condition 8104 which precludes the applicant from working more than 40 hours per fortnight. But there is no evidence to indicate the applicant has breached other conditions.

24. The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. As above, the Tribunal has considered the material previously provided by the applicant and finds that there is no degree of hardship that may be caused by the applicant not being able to remain here in Australia on student visas.

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the 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 the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

26. The Tribunal finds that there are no grounds for cancellation beyond the visa holder’s control.

    ·past and present behaviour of the visa holder towards the department

27. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the department or the Tribunal in her dealings. However, this is expected of all visa holders.

    ·whether there would be consequential cancellations under s.140

28. There is no evidence of consequential cancellations under s.140.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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

29. The Tribunal is mindful that the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, and it may be difficult to be granted further visas, and she may be subject to a three-year exclusion period under relevant Public Interest Criterion.

30. It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which she can leave the country or apply for review of the decision.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

31. There is nothing before the Tribunal to indicate any international obligations to consider.

    ·any other relevant matters.

32. The Tribunal appreciates that an education from Australia may enhance the applicant’s career, however, the population and economy of the applicant’s home country is significant and there are many people in full-time professional employment, without a specific education from Australia. The Tribunal has considered the applicant’s previous statements and the evidence in the delegates file and in the Tribunal’s file however it finds that the breach is significant. The Tribunal has considered all the factors listed above both individually and cumulatively in the context of the breach. As such, considering the circumstances outlined by the applicant, the Tribunal concludes that the visa should be cancelled.

33. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Witts
    Member

    
    

    ATTACHMENT – Schedule 8 to the Migration Regulations 1994 (extract)

    8104(1)     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 course of study mentioned in subclause (2) is for the award of a masters or doctoral degree, then despite subclause (1), the holder may engage in work for more than 40 hours a fortnight while the holder is in Australia.

    (4)In this clause:

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