NG (Migration)

This matter concerned an application by NG, the holder of a Student (Temporary) (Class TU) visa, subclass 500, to review the decision to cancel her visa. The dispute arose from allegations that NG had breached condition 8104 of her visa, which limits work to 40 hours per fortnight. The Administrative Appeals Tribunal (AAT) was required to determine whether NG had indeed breached this condition and, if so, whether the decision to cancel her visa should be affirmed.

The primary legal issue before the Tribunal was whether NG had complied with condition 8104 of the *Migration Regulations 1994*, which prohibits a student visa holder from working more than 40 hours per fortnight in Australia. The Tribunal also had to consider the exercise of discretion regarding visa cancellation, taking into account various factors outlined in the Department's Procedures Advice Manual and submissions made by the applicant.

The Tribunal reasoned that the evidence, including staff records and timesheets obtained during a search of the restaurant where NG worked, indicated she had worked an average of approximately 44 hours per week between April and May 2017. While NG claimed these records were inaccurate and that she only worked two days a week, the Tribunal found her explanation unconvincing. Applying the objective test for determining "work" as an activity that normally attracts remuneration, and considering the context of the employment, the Tribunal concluded that NG had breached condition 8104. In exercising its discretion on cancellation, the Tribunal found no compelling need for NG to remain in Australia, gave minimal weight to the apparent absence of other breaches, and determined that the circumstances of the breach were not beyond her control.

Consequently, the Tribunal affirmed the decision to cancel NG's visa.