NGUYEN (Migration)

[2019] AATA 3972

NGUYEN (Migration) [2019] AATA 3972 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DUC SON NGUYEN

CASE NUMBER:  1705734

HOME AFFAIRS REFERENCE(S):           BCC2016/3724402

MEMBER:Melissa McAdam

DATE DECISION SIGNED:  19 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 June 2019 at 1:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in course – English proficiency – reliance on interpreter – no compelling reason to stay in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), cls 572.223, 572.231

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

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

3. The delegate cancelled the visa on the basis that she was satisfied the applicant had not complied with a condition of the visa.  That condition was Condition 8516 – the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant’s Student visa was granted on 23 September 2014.

   NOICC

6. On 3 March 2017 the delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa (NOICC), under s.116 of the Act.  In the notice the delegate set out Criteria 573.231 and 573.223 (1A)

   573.231

   If subclause 573.223(1A) does not apply:

   (a)  the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A; and
   (ii) in force at the time the application was made.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i) a bachelor’s degree; or
   (ii) a masters degree by coursework;

   (b)  the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the
   purposes of, the principal course of study:

   (i) the applicant is also enrolled in that course; and
   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

   573.223 (1A)

   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
       (a) the applicant gives the Minister evidence that the applicant has:

   (i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
   (ii) educational qualifications required by the eligible education provider; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
   (ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.

7. In the NOICC the delegate set out information that the applicant appeared to be no longer enrolled in a Bachelor’s degree or masters degree course and he was not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

   Response to NOICC

8. On 8 March 2017 the applicant wrote to the Delegate stating that he applied for an English Course, Diploma of Management and Leadership, and Bachelor of Business, from GCA.  He maintained the Bachelor of Business as his principle course. He attached Confirmation of Enrolments (CoEs) for each course. The General English CoE covered a period of study from 6 March 2017 to 25 August 2017. The Diploma of Management and Leadership CoE covered a period of study from 3 October 2017 to 20 September 2019. The Bachelor of Business CoE covered a period of study from 20 January 2020 to 2 December 2022.

   Delegate’s Decision

9. On 22 March 2017 the delegate cancelled the applicant’s visa. The delegate referred to information that the applicant’s Bachelor of Business course was cancelled on 5 February 2016 so that the applicant was no longer enrolled in a Bachelor or Master’s degree. The delegate found that the applicant was not enrolled in a higher education level principal course between 5 February 2016 and 7 March 2017.  The delegate noted that the applicant’s Bachelor of Business course was not due to commence until 20 January 2020 which was past the expiry date (15 March 2019) of the applicant’s Student visa.  The delegate found that the applicant had not undertaken any higher education degree in Australia.  The delegate noted that if visa holders are unable to study at the visa subclass level they were approved for, they are required to change subclasses to reflect the level of study they are completing.  The delegate found that the applicant did not do this.

   Information to the Tribunal

   Pre-Hearing Submission

10. On 23 May 2019 the applicant submitted the following written information to the Tribunal:

    i.A Statement of Attainment from Barton International College stating that the applicant completed a course in General English, Elementary Level, in January  2017.

    ii.An Overseas Student Confirmation of Enrolment (CoE) to the applicant, from the Sydney School of Business and Technology (SSBT), for an Advanced Diploma of Business, starting 14 January 2019 and finishing 15 December 2019.

    iii.A Course Completion Letter from SSBT stating that the applicant completed a Diploma of Business Administration at the school on 6 January 2019.

    iv.A Certificate from SSBT, issued on 27 March 2019, certifying that the applicant completed a Diploma of Business Administration.

    v.The applicant’s record of results from SSBT for the Diploma of Business Administration course.

    vi.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in September 2015.

    vii.A Certificate from the Metro English College certifying that the applicant was enrolled in a course in General English, Elementary Level, in September 2017.

    viii.An Offer and Acceptance of Enrolment to the applicant from Group Colleges Australia, dated 23 May 2019, for a Bachelor of Business at UBSS Sydney College from January 2020 to December 2022.

    Tribunal hearing

11. The applicant appeared before the Tribunal on 30 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant is currently going to school. He is enrolled in an Advanced Diploma, offered by the GCA institution.

    b.He is not enrolled in a Bachelor degree or a Master’s degree.  He wanted to enrol in such courses but his English ability prevented this. He tried to comply with his visa condition to be enrolled in a higher degree but he could not.

    c.When he came to Sydney he found his English was not good enough  to complete his planned courses of study.  He did not know he could contact the Department to try to change his class of visa to a more suitable educational level.

    d.He applied for a Sub Class 573 visa so he could come to Australia and study English, then a diploma, and then a university level degree.

    e.He agreed that he enrolled in and completed the English course ‘General English’ four times between September 2014 and January 2017. When asked why he undertook the course four times, he replied that the college advised him his English was not good enough. When asked why he did not then enrol in a more advanced English course if he had successfully completed the general level he replied it was because he needed to make his English better. When asked how doing the same general English course four times would help him improve his English he gave no response.  When asked again, he replied that his English was not good enough to enrol in a higher course.

    f.His English skills are now ‘normal’ and he will try to improve them.  When it was put to him that his education courses will be presented in English he replied he will try to understand them.  He agreed he needed an interpreter for the Tribunal hearing because there is some English he does not understand. He can read and write some easy words in English but not very much.  He will try to complete a Bachelor degree in Australia and if he fails he will return to Vietnam.  If he finishes his course he will return to Vietnam.

    g.He is not working.  In Vietnam he worked in an oil and gas company.  He saved money which he is now relying upon in Australia.  He worked in Australia in the past but he can’t anymore as he has back pain.  Sometimes he does some tiling work.  He mostly stays at home and looks after his niece.  Sometimes he helps his friends to show them how to do work.

    h.He stopped studying the Leadership and Management Diploma course in Australia because the school closed down, he thinks.

    i.He completed his last Diploma on 27 March 2019.  He is now studying an Advanced Diploma in Business (ADB).  He has his next class on the day after the hearing.

    j.The ADB teaches how to do business. The course is less than a year long and it finishes in August 2019.  It is at SSBT College in Burwood.  The applicant does not know the address of the college, it is near the station.  The applicant attends two sessions there each week, on Fridays and Saturdays.  He cannot remember what subjects he is currently studying.

    k.He likes to study in Australia. He wants to get a good education qualification and work again for his company in Vietnam.  The more quickly he finishes his education the sooner he can return to Vietnam.

    l.If he returns to Vietnam without a qualification his salary will be lower than if he obtains a qualification. 

    m.He has experience in his sector in Vietnam.  He worked for the design section in the oil and gas company for nine years.  He will be able to work there again because of his experience.  It will be easy for him to obtain work there again.

    n.So far he has failed at his goals to study here. He feels he has wasted his time. He did not comply with his visa conditions because his English is not good enough.

    o.He is already old and he has a mother in Vietnam.  She lives in Hanoi.  When he completes study in Australia he will return to Vietnam.  He will work in the south of Vietnam.

    p.He would like to return to Vietnam but his visa has been cancelled and he has not yet finished his studies.  He needs to compete the GCA course. It is a two year full time course about business.  He does not know the name of the course.  He would study the course at GCA. He does not remember where GCA is. He thinks it is near Museum Station.  He needs the qualification very badly so he can return to Vietnam to work.

    q.He forgets what subjects he studied in his Diploma of Business Administration. He did not fail any subjects in the course.

    r.The applicant’s Agent submitted that the applicant’s former school had closed down so it is very hard to obtain his academic transcript from the school.  The transcripts should have been transferred to his new school so they will try to obtain them from there and submit them to the Tribunal.  The applicant is currently doing an Advanced Diploma course and will then transfer to a higher education course.  He was previously not confident so just studied English.  He thinks his English is now good enough for further and higher education study.  Before he was lost and did not know what to do.  He did not know anything. His study history has been very continuous.

    s.The applicant’s Agent also submitted the following documents at the hearing:

    i.Agent’s written submission setting out the applicant’s visa and education history in Australia.  It is submitted that the applicant continued his English studies to avoid the he risk of failing his higher degrees. The applicant has received an enrolment offer for a Bachelor of Business. The applicant was originally struggling with English so his initial Bachelor degree enrolment was terminated.  He has passed his English courses at ‘slow speed’ and believes he could finish a Bachelor course at GCA. His study has all been relevant to his proposed career path. He maintains family ties with Vietnam.

    ii.A Certificate from the Metro English College certifying that the applicant was enrolled in a course in General English, Elementary Level, in September 2017.

    iii.A Statement of Attainment from Barton International College stating that the applicant completed a course in General English, Elementary Level, in January  2017.

    iv.A Course Completion Letter from SSBT stating that the applicant completed a Diploma of Business Administration at the school on 6 January 2019.

    v.A Certificate from SSBT, issued on 27 March 2019, certifying that the applicant completed a Diploma of Business Administration.

    vi.The applicant’s record of results from SSBT for the Diploma of Business Administration course.

    vii.An Overseas Student Confirmation of Enrolment (CoE) to the applicant, from the Australian College of Vocational Studies (ACVS), for a Diploma of Business Administration, starting December 2017 and ending November 2018.

    viii.An Academic Record from the ACVS, dated 7 May 2018, showing the applicant had been graded ‘competent’ in two subjects and ‘not yet competent’ in the other subjects.

    ix.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in September 2015.

    x.An Offer and Acceptance of Enrolment to the applicant from Group Colleges Australia, dated 23 May 2019, for a Bachelor of Business at UBSS Sydney College from January 2020 to December 2022.

    Post-Hearing Submission

12. On 13 June 2019 the applicant submitted the following written information to the Tribunal:

    i.An offer of employment from the Director of Ngoi San Xinh Co Ltd., undated, offering the applicant the position of ‘Section Manager’ at the company, to start in February 2023, at a salary of VND 45,000,000/month. The applicant is asked to sign and return a copy of the letter if he chooses to accept the offer.

    ii.An Overseas Student Confirmation of Enrolment (CoE) to the applicant, from the Sydney School  of Business and Technology (SSBT), for an Advanced Diploma of Business, starting 14 January 2019 and finishing 15 December 2019.

    iii.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in June 2016.

    iv.A Certificate from the Kingsway Institute certifying that the applicant completed a course in General English, Elementary Level, in September 2015.

    v.A Certificate from the Metro English College certifying that the applicant was enrolled in a course in General English, Elementary Level, in September 2017.

    vi.A Statement of Attainment from Barton International College stating that the applicant completed a course in General English, Elementary Level, in January  2017.

    vii.An Offer and Acceptance of Enrolment to the applicant from Group Colleges Australia, dated 23 May 2019, for a Bachelor of Business at UBSS Sydney College from January 2020 to December 2022.

    viii.A Course Completion Letter from SSBT stating that the applicant completed a Diploma of Business Administration at the school on 6 January 2019.

    ix.A Certificate from SSBT, issued on 27 March 2019, certifying that the applicant completed a Diploma of Business Administration.

    x.The applicant’s record of results from SSBT for the Diploma of Business Administration course.

    xi.A Vietnamese Land Use Rights Certificate, and related documents, in the applicant’s name.

    xii.The applicant’s Vietnamese Birth Certificate.

    xiii.The applicant’s mother’s  Vietnamese Birth Certificate.

    xiv.A typed letter in English from the applicant which includes the following:

    … First of all, I would like to elaborate on my tie with my home country from family perspective. As a son in the family, I am responsible for taking care of my mother, especially at this time, when she is getting older and her health is deteriorating each day. This is not only a cultural tradition of an Asian country like Vietnam, but also the bonding between me and my mother. I am worrying every day, when I am far away from her and cannot take as good care of her as I should have. For an elder to live alone without anyone to count on, she is still encouraging me day by day and said the it is hope that keeps her strong. She can’t wait for the day I go back to her, with an Australian degree successfully achieved as planned from the beginning, and I would never let her down. In addition, my family has properties that will be passed to me as inheritance. I will have to go back to Vietnam and take care of these properties before and after they are passed to me. I am attaching these property certificates as proof.

    Secondly, I have previously got working experience in Vietnam. My company works in petroleum sector. I enjoyed this job and found my passion here. As a matter of fact, the motivation for my decision to study abroad is to progress in my career. With the improved English level after years of studying in Australia, as well and an Australian degree, I am confident that I have more advantages than other colleagues and will be promoted after coming back. Although I value the excellent education system of Australia and the worldwide recognition of Australian qualification, I am aware of the fact that the job market here is competitive especially for in international graduate like me. It would be extremely challenging to find a good job that pays off my investment in my study because I have to compete with local people.

    Thirdly, I love my experience here as an international student, but to work here in the long term is a totally different story that I have never thought of. I don’t find myself really fit in here, both in terms of culture and way of life. I am making the best out of my opportunity to study here in Australia, but I am also hoping that I will finish my study soon and go back to my family, continue with my chosen career there and support my family, which I cannot do during the time spent abroad.

    Finally, I am been offered a job with my old company in Vung Tau, Viet Nam. I am completing my Bachelor course at GCA in December 2022 and I will come back to start my job offered in February 2023. My company name is Ngoi Sao Xinh Co. Ltd, Vietnam and my offered position is a management position. The Pay rate is VND 45,000,000 monthly, which is approximately $31,000/year, which is a high income given low cost of living in Vietnam. As you can see from my job offer attached, my future position is Manager level, which is perfect for my qualification and my skills accumulated during my study in Australia. I am very excited for this position and I am confident that I will do it well, because I have experience in the past, knowledge, management skills and passion. I believe coming back to Vietnam will be a milestone in my career, and I cannot wait to contribute to my company’s growth and success. …

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition requires the visa holder to continue to be a person who would satisfy the primary criteria for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

3. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if he was not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

4. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 13/124.

5. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40.

6. The applicant has confirmed that his enrolment in a Bachelor of Business was cancelled on 5 February 2016, and that he has not been enrolled in a course of a type specified for a Subclass 573 visa, between that time and March 2017. 

7. On the basis of the information before it 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

8. 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’.

   ·     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

9. The Tribunal is satisfied that the applicant’s original purpose in travelling to and staying in Australia was to study.

10. The applicant provided evidence he completed a Diploma of Business Administration at the beginning of this year, is currently studying an Advanced Diploma of Business, and is enrolled in a Bachelor of Business to commence next year.  He also gave evidence he plans to return to Vietnam when he has obtained a Bachelor degree in Australia.

11. The Tribunal accepts the applicant completed a nine-month Diploma of Business Administration between April 2018 and January 2019, in addition to the several General English courses he completed over his initial several years in Australia.

12. In regards to his current study of an Advanced Diploma of Business the applicant was unable to demonstrate actual knowledge of the course, despite claiming to be attending classes two days per week since its commencement.  He was not able to name the course or any of the subjects he was currently studying. The Tribunal therefore does not consider he is pursuing his studies of the course in any engaged sense.  The Tribunal is not satisfied he is presently remaining in Australia to actively study.

13. The applicant has also not presented any compelling need to remain in Australia.  He spoke of wanting to obtain a higher degree so that he could obtain work at a higher salary in Vietnam, which will further assist him to support his mother in Vietnam.    He also stated that he had nine years’ work experience which assured him of obtaining work in Vietnam on return.  While the Tribunal accepts that a higher degree could readily lead to work options in Vietnam attracting higher salaries, it does not consider it a compelling factor for the applicant’s continued stay in Australia.

    ·     the extent of compliance with visa conditions

    The applicant failed to maintain enrolment at study at the level required by the conditions of his Student Visa which is a fundamental breach of a student visa and weighs against the applicant in this case.

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

14. When asked about hardship the applicant spoke of wanting to study quickly in Australia so he could return to Vietnam soon to be with his mother and to work for his former company. He also stated he would receive a lower salary than the salary he would receive if he returned with a degree qualification. He complained of having wasted is time in Australia if he does not obtain a degree qualification here.

15. The Tribunal acknowledges the applicant’s desire to improve his suitability for higher paid employment in Vietnam. However in view of his evidence that his employment prospects in Vietnam remain good even without a higher qualification the Tribunal is not satisfied the degree of hardship that will be caused to the applicant is very high.

16. The Tribunal also takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

17. The applicant’s visa was cancelled because he did not continue to be a person who would satisfy the primary criteria for the grant of the visa. The applicant claimed this was due to his lack of adequate English language skills.  He has enrolled in further English courses to strengthen his English language ability. The Tribunal accepts that the applicant would struggle to successfully compete higher or advanced education courses without adequate English skills. The Tribunal therefore gives this factor some weight in the applicant’s favour.

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

    There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal.  The Tribunal gives this factor some weight in favour of the applicant.

    ·     whether there would be consequential cancellations under s.140

18. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

19. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

20. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

21. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

22. The applicant claims he is culturally required to look after his mother and be with her in Vietnam.  He claims it causes him distress to not be fulfilling his cultural duties.  He balances this feeling with a need to remain longer in Australia to obtain a qualification that would provide him with greater income in Vietnam and assist him to look after his mother better there.

23. The Tribunal accepts the applicant’s evidence that he feels obliged to be with and look after his mother in Vietnam.  Given his evidence that he would readily find work at his old company in Vietnam if he returns there now, the Tribunal does not consider staying in Australia simply to increase his earning capacity, warrants prolonging his separation from his mother. 

24. The Tribunal does not consider that this information weighs against the Tribunal exercising its discretion to cancel the applicant’s visa.

    Conclusion

25. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh significantly against the applicant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

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

    Melissa McAdam
    Member

    
    

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

    8104(1)     Subject to subclauses (2) to (6), 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 holder is able to engage in work in accordance with subclause (2), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia unless subclause (4) or (5) applies.

    (4)Subclause (3) does not apply if:

    (a)     the visa for which the primary criteria were satisfied is:

    (i)a Subclass 573 (Higher Education Sector) visa; or

    (ii)a Subclass 574 (Postgraduate Research Sector) visa; and

    (b)    the course of study is a course for the award of a masters or doctorate degree that is registered on the Commonwealth Register of Institutions and Courses of Overseas Students.

    (5)Subclause (3) does not apply if:

    (a)     the visa for which the primary criteria were satisfied is a Subclass 576 ([AusAID/Foreign Affairs] or Defence Sector) visa; and

    (b)    the course of study is a course for the award of a masters or doctorate degree.

    (6)In this clause:

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