Panday (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the applicant, who held a Subclass 573 Higher Education Sector student visa. The dispute centred on whether the applicant had breached condition 8104 of the Migration Regulations 1994, which limits work to 40 hours per fortnight for student visa holders and their family members. The applicant had allegedly worked in excess of this limit for two businesses between June and September 2017.

The Tribunal was required to determine if the applicant had complied with condition 8104 and, if not, whether the discretion to cancel the visa should be exercised. The interpretation of "work" and "fortnight" under the Regulations was relevant, with the Tribunal noting that the test for what constitutes "work" is objective and requires consideration of the context and motivations behind the activity. The applicant admitted to working more than 40 hours per fortnight and stated he was not fully aware of his work limitations, attributing his actions to a need to support his wife, who was suffering from depression.

The Tribunal found that the applicant had indeed breached condition 8104. However, in considering whether to cancel the visa, the Tribunal had regard to the applicant's circumstances, including his wife's significant medical conditions, the ongoing and expensive treatment required, and the impact this had on their financial situation. The Tribunal also noted the applicant's efforts to support his wife's studies, their intention to return to Bhutan to establish a business, and the fact that their children remained in their home country. Considering all these factors, the Tribunal concluded that the visa should not be cancelled.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.