Panday (Migration)

[2019] AATA 1487

Panday (Migration) [2019] AATA 1487 (29 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Basanta Raj Panday

CASE NUMBER:  1725323

HOME AFFAIRS REFERENCE(S):           CLF2017/73697

MEMBER:Nicola Findson

DATE DECISION SIGNED:  29 January 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa.

Statement made on 29 January 2019 at 11:10am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector  – breach of condition – visa holder not to engage in more than 40 hours of work – applicant not complied with condition – wife’s medical conditions – level of breach and degree of hardship – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), Schedule 8 Condition 8104, 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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 October 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 delegate cancelled the visa on the basis that the applicant did not comply with condition 8104 of his visa.  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 19 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Tika Maya Dungyel.  The Tribunal hearing was conducted with the assistance of an interpreter in the Dzongkha and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing by telephone.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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?

7. 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: 8104(1). In relation to student visas, 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: 8104 (2)-(5).

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: 8104(6). ‘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. In the present case, between 19 June and 27 September 2017, the applicant was allegedly undertaking work as a cleaner for two businesses – Coles Services Floreat and DC Enviroservices – and, was working well in excess of 40 hours per fortnight. 

11. For the following reasons the Tribunal is satisfied that the applicant has not complied with condition 8104 of his visa.

12. The Tribunal accepts that the applicant first arrived in Australia in September 2016 as the dependent spouse of Ms Tika Maya Dungyel, a student visa holder and it accepts that they travelled together to Australia at that time.  It accepts his wife’s evidence that she holds a subclass 573 student visa and has studied since their arrival in Australia. 

13. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant for the purposes of the review, sets out that on 13 October 2017 the applicant was interviewed in relation to his visa conditions.  During his interview, the applicant agreed that the grounds for cancellation do exist.  He indicated that he was not fully aware of his work limitations; he had finished working for DC Enviroservices on 27 September 2017; and he had been working to support his wife, a sufferer of depression.

14. At his Tribunal hearing, the applicant conceded that he had worked in excess of 40 hours per fortnight, at two businesses, between 19 June and 27 September 2017, and therefore breached the working conditions of his visa.

15. The Tribunal finds that at the time the applicant’s visa was cancelled on 13 October 2017 the primary visa holder held a subclass 573 visa; therefore the applicant was able to engage in work in accordance with 8104(2).  There is no evidence before the Tribunal that 8104(4) and 8104(5) which require consideration of the studies undertaken by the primary visa applicant, apply to the applicant; and therefore the Tribunal finds the applicant was required to not engage in work for more than 40 hours a fortnight while in Australia under 8104(3).

16. On the basis of the evidence before it the Tribunal is satisfied that the applicant was engaged in ‘work’ as defined in r.1.03 in Australia. On the basis of the evidence contained in the delegate’s decision regarding his work hours, the Tribunal finds that between 19 June and 27 September 2017 the applicant engaged in a total amount of 67 hours of work a fortnight at Coles Services Floreat and DC Enviroservices, well in excess of the 40 hours per fortnight that he was permitted to work.

17. Therefore, the Tribunal is satisfied 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 applicant responded to the delegate’s invitation to be interviewed and to make comments on the breach and why his visa should not be cancelled.  His argument or reasons for the breach were that he did not fully understand the work limitations attached to his visa and that his wife was suffering depression, which had impacted on their savings and their ability to support themselves in Australia.

20. During the review process the applicant provided a comprehensive submission through his registered migration agent and supporting documents, including medical records and reports relating to his wife, bank statements in the joint names of the applicant and his wife for 2017 and 2018, evidence of the academic achievements of his wife in Australia.

21. At the hearing the applicant told the Tribunal that he and his wife first arrived in Australia in 2016 as holders of student visas.  He indicated that their two young children remain in the care of close family members in their home country, Bhutan.  The applicant indicated that he and his wife owned an information technology business in Bhutan.  He said that the business was sold to his brother, before they came to Australia.  The applicant told the Tribunal that the plan was for his wife to complete her studies – a Diploma of Business and a Bachelor of Business at Murdoch University - while he supported her, and then they would return to Bhutan to establish a more expansive business.

22. The applicant told the Tribunal that after their arrival in Australia his wife found it difficult being away from her children and close family, and began to suffer psychologically.  He said she consulted medical practitioners, including a psychologist, and was treated with medication and counselling for severe anxiety and depression.  The Tribunal was told that this treatment was ongoing and helpful, but very expensive.   The evidence before the Tribunal is that despite her mental health issues, the applicant’s wife has maintained her studies, and is progressing towards attaining a Bachelor of Business, albeit via a different pathway.  This alternate pathway has involved her changing institutions (to one closer to where they live) and switching from a Higher Education Diploma package to a Vocational Diploma Degree package.  The applicant’s wife has completed her Diploma of Business; has almost completed her Advanced Diploma of Business; and hoped to complete her Bachelor of Business at latest by November 2021. 

23. The applicant indicated to the Tribunal that he started working as a cleaner at DC Enviroservices towards the end of 2016.  He said he was paid to work for 3 hours every day from Monday to Friday, and was also sometimes asked to work overtime.  He said he took on a cleaning role at Coles in June 2017 to help offset his wife’s unexpected and costly medical expenses.  He indicated to the Tribunal that a representative from DC Enviroservices telephoned him towards the end of September 2017 to query if he was working elsewhere.  The applicant told DC Enviroservices that he was working in a second job.  He said that when the work limitation was explained to him he immediately reverted to working 40 hours per fortnight for only one company.    He said that since his visa was cancelled by the delegate, he has not undertaken any work at all.

24. The Tribunal was told that the visa issue the applicant is facing has adversely affected his wife’s emotional state. The evidence before the Tribunal is that she continues to take medication to support her mental health and has required additional counselling. The applicant told the Tribunal that if his visa remains cancelled and he has to return to Bhutan, his wife will be unable to remain in Australia to complete her studies.  The Tribunal was told that she needs the applicant’s support. The medical reports relating to the applicant’s wife make clear recognition of the applicant’s important supporting role to her treatment. 

25. The evidence before the Tribunal reflects that despite significant obstacles the applicant’s wife has been strongly committed to achieving a bachelor degree in Australia.  The Tribunal was told that this is her dream and if she does return home without this qualification after the time and money she and the applicant have spent to enable her to study in Australia, she would feel a great sense of failure.

26. The Tribunal indicated that even though the breach was for a relatively short period, it considered it to be significant especially taking into account that the hours he worked were well in excess of the permitted limit, therefore it could only have been with his full knowledge that he was breaching the visa condition.  The applicant appreciated the importance of compliance with visa conditions and was genuinely remorseful for breaching the condition of his visa.    The Tribunal observes that the applicant’s wife was visibly distressed at the hearing.  She indicated fear about not being able to remain in Australia to complete her studies without the support of her husband.  There was no doubt about the parties’ realisation of the significance of the breach of the applicant’s visa condition and genuine remorse and understanding of the importance of taking seriously compliance with visa conditions.

27. As to the purpose of the applicant’s travel to and stay in Australia, the Tribunal accepts that the applicant came to Australia in September 2016 as a dependent on his wife’s student visa to provide her with support during her studies. The evidence before the Tribunal is that the applicant’s support has been, and remains, critical to his wife maintaining her studies.  The Tribunal gives this factor significant weight towards the visa not being cancelled.

28. There is no evidence before the Tribunal to suggest that the applicant has not complied with any other conditions of his visa.  The Tribunal gives this factor some weight in his favour.

29. The Tribunal does not accept the applicant’s claims that he was unaware of the work limitation on his visa, nor does it accept that the circumstances in which the ground of cancellation arose were beyond the applicant’s control.  It has found that he worked well in excess of the hours he was permitted to work in a fortnight for a three month period and the Tribunal considers this breach to be significant.  However, the Tribunal does accept that the costs the applicant and his wife incurred in relation to her medical treatment were significant and impacted their savings, and that the applicant wished to lighten that financial load.  It has also taken into account the applicant’s genuine realisation of the importance of compliance with conditions of the visa.  In the Tribunal’s experience it is common that appreciation of the gravity of non-compliance with visa conditions occurs in the breach.  In all the circumstances, the Tribunal gives this factor some weight towards the visa being cancelled.  

30. In this particular case, and on the evidence before it, the Tribunal accepts that significant hardship will be caused to the applicant and his wife by the cancellation of the visa.  The Tribunal accepts that the applicant’s wife will be unable to pursue the studies she has worked extremely hard to maintain, without her husband alongside her in Australia.  The Tribunal gives this factor weight towards the visa not being cancelled.

31. The delegate’s decision record indicates that the applicant has never had a visa cancelled or refused in Australia.  It also indicates that the applicant did not dispute any of the information put to his concerning his employment during his interview.  The Tribunal gives this some limited weight in favour of not cancelling the visa.

32. 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 visa in Australia.  The Tribunal gives this some limited weight in the applicant’s favour.

33. There are no persons in Australia who would be affected by consequential cancellations in this case. 

34. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation.

35. Weighing the level of the breach and the degree of hardship that the applicant and his wife would suffer, the Tribunal is of the view that the efforts of the medical treatment the applicant’s wife has, and continues, to receive would be severely hindered if the visa was to remain cancelled.  The correct and preferable decision therefore is to not cancel the visa.  In reaching this decision, the Tribunal notes that had the visa not been cancelled it would have already ceased naturally.  The Tribunal is conscious that setting aside the cancellation will allow the applicant the opportunity to be considered for a further student visa while in Australia.

36. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it.  Whilst finely balanced, it considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia with his wife, while she is engaged in higher sector study.

37. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 573 Student (Temporary) (Class TU) visa.

    Nicola Findson
    Member

    
    

    ATTACHMENT – Relevant extracts of Schedule 8 to the Migration Regulations 1994

    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 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.