Paudel (Migration)

[2019] AATA 1972

Paudel (Migration) [2019] AATA 1972 (27 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sarita Paudel

CASE NUMBER:  1725704

HOME AFFAIRS REFERENCE(S):           CLF2017/74450

MEMBER:Nicola Findson

DATE:27 April 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 500 (Student) visa.

Statement made on 27 April 2019 at 6:11pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 – Bachelor of Accounting – café employee – breached working conditions – engaged in work for more than 40 hours per fortnight – undertook extra work to pay for mother’s medical treatment – mental health issues – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 116, 189, 198
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 18 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basiss that the applicant did not comply with condition 8104 of her 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 20 February 2019 to give evidence and present arguments. The applicant’s husband, Mr Dipesh Baniya, also attended the hearing.

4. The applicant was represented in relation to the review by her registered migration agent.

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 April 2017 and October 2017, the applicant was allegedly undertaking work at the DOME Café 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 her visa.

12. The Tribunal accepts that the applicant first arrived in Australia in June 2014, together with her husband Mr Dipesh Baniya, as the holder of a subclass 573 student visa.  On 6 April 2017, Mr Baniya obtained a subclass 500 student visa, to enable him to undertake studies in Australia.  At this time, the applicant became the dependent spouse of Mr Baniya, as the primary student visa holder.  The Tribunal accepts that the applicant’s husband holds a subclass 500 student visa and has studied since his visa grant in April 2017.

13. According to a Notice of Intention to Consider Cancellation, a copy of which was provided to the Tribunal by the applicant for the purpose of the review, on 17 October 2017 officers from Australian Border Force conducted a visit to the applicant’s place of employment – DOME Café - and the applicant was questioned about her visa conditions.  At this time, the officers also obtained work rosters that indicated the applicant had worked in excess of 40 hours a fortnight between 18 September 2017 and 29 October 2017.  The applicant explained to the officers that she had worked the additional hours to send money to her mother, to help with the costs associated with her requiring medical attention after suffering a stroke. 

14. During an interview on 18 October 2017, the applicant was shown additional work rosters that indicated she had also worked in excess of 40 hours per fortnight between 3 and 30 April as well as 15 and 28 May 2017.  This was more than the 20 hours per week, with the exception of school holidays, she had admitted to working.  The applicant told the officers that she had experienced personal issues with her parents, which had resulted in her mother suffering health problems, including a stroke.  She indicated that she was very sorry for breaching the working condition of her visa, and reiterated that she had worked the additional hours to send money to her mother, to help with her medical care.  She also provided evidence of two money transfers to Nepal - $1500 on 9 August 2017 and $910 on 21 September 2017

15. At the Tribunal hearing, the applicant conceded that she had worked in excess of 40 hours per fortnight at Dome, between 3 and 30 April, 15 and 28 May, and 18 September and 29 October 2017, and therefore breached the working conditions of her visa.

16. The Tribunal finds that at the time the applicant’s visa was cancelled on 18 October 2017 the primary visa holder held a subclass 500 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).

17. 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 her work hours, the Tribunal finds that between 3 and 30 April, 15 and 28 May, and 18 September and 29 October 2017, the applicant worked in excess of the 40 hours per fortnight that she was permitted to work, at DOME Cafe.

18. Therefore, the Tribunal is satisfied that the applicant has not complied with condition 8104 of the visa. 

    Consideration of discretion

19. 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’.

20. The applicant responded to the delegate’s invitation to be interviewed and to make comments on the breach and why her visa should not be cancelled.  Her reasons for the breach were that her mother had suffered a stroke and required financial support for her medical care.

21. During the review process the applicant provided a comprehensive submission through her registered migration agent.  Other supporting documents accompanied the applicant’s submission, including but not limited to, statutory declarations sworn by the applicant, her husband and her parents, medical information relating to the applicant’s mother, bank statements in the joint names of the applicant and her husband for the period 1 January 2018 until present, evidence of the academic achievements of both the applicant as well as her husband in Australia.

22. The applicant indicated to the Tribunal that she began working at DOME in September 2015.  She said she worked about a total of 15 hours, over three shifts, each week while she was studying, and that these hours increased to 20 hours each week when her husband commenced his studies.  She said that since her visa was cancelled by the delegate, she has not undertaken any work at all.

23. At hearing, the applicant told the Tribunal that she first arrived in Australia, together with her husband, in 2014 as the holder of a subclass 573 student visa.  The applicant told the Tribunal that when they first arrived in Australia the plan was for her to undertake studies and obtain business qualifications, while her husband supported her, and then they would return to Nepal to either work for her in-laws in their business or to establish an accounting business of their own. She said that she completed an English course, and a Diploma of Commerce at Curtin College and completed one year of a Bachelor of Accounting degree at Curtin University.  The applicant indicated to the Tribunal that she began to suffer psychologically while she was studying towards her Bachelor of Accounting degree.  She indicated she missed the support of her close knit family.  She indicated she sought assistance from the counselling service at Curtin University, which is corroborated by a letter of a Social Support Advisor dated 16 June 2015.   Despite her mental health issues, the applicant maintained her studies and progressed towards attaining a Bachelor degree.  She said she ultimately found the study load too difficult, and after obtaining migration advice, sought to change her pathway by enrolling in an Advanced Diploma of Business at the NIT Australia and also a Bachelor of Business at the Australian School of Management.  She said that while she was working towards the Advanced Diploma of Business, she was informed that she would be unable to commence her Bachelor degree because the Australian School of Management had closed down.  She said that this news, coupled with her finding studying difficult because of her fragile psychological state “demotivated” her.  She said that after discussions with her husband and migration agent, the decision was made for the applicant’s husband to apply for a student visa, while she took a break from her studies to focus on her health, and to enable him to obtain formal qualifications to improve his employment prospects in the hospitality industry upon return to their home country.   

24. The applicant told the Tribunal that she felt “completely lost” and things really started to go wrong after she ceased her studies.  She said that in addition to the emotional struggles she was facing, her family lost contact with her father for several months, while he was working as a Gardener in Saudi Arabia.  She said that Saudi Arabia banned the use of social media, which meant that it was impossible for her father to maintain contact with his family.  She said this had a significant impact on her health, but more so on the health of her mother.  She said they were extremely concerned about the applicant’s father, given that about four months went by with no contact from him.  She said her mother’s health declined to the point that she suffered a stroke in July 2017.  Documentary evidence supports the health issues of the applicant’s mother.

25. The applicant told the Tribunal that she felt helpless at this time, but was focussed on wanting to help her mother.  She said the only way she thought she could do this was to provide her with financial support.  She said that she does not deny that she was breaching the working condition of her visa, but was very stressed and not thinking clearly at the time, and worked additional hours to earn more money to send to her mother, to support her.

26. The Tribunal was told that the applicant’s father has since resigned from his employment in Saudi Arabia and returned to Nepal to be with the applicant’s mother.  The applicant said that her mother’s health has improved. 

27. The applicant told the Tribunal that the visa issue she is facing has also adversely affected her emotional state.  She said that relies on her husband’s support and could not bear to be separated from him while he completes his studies. 

28. The evidence before the Tribunal reflects that despite obstacles the applicant and her husband have each been committed to achieving educational qualifications in Australia. 

29. The Tribunal indicated to the applicant that it considered the breach to be significant, especially taking into account that the hours she worked were well in excess of the permitted limit, and with the full knowledge that she was breaching the visa condition.  The applicant appreciated the importance of compliance with visa conditions and was genuinely remorseful for breaching the condition of her visa. The Tribunal observes that the applicant was visibly distressed at the hearing.  She indicated fear about not being able to remain in Australia with her husband, after all that they had endured together since their arrival in 2014.  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.

30. At hearing, the Tribunal discussed with the applicant the discretionary factors the Tribunal would consider in making its decision and all of the relevant circumstances in her case.  In assessing the evidence, the Tribunal notes that the applicant presented as a reliable witness.  It can be satisfied that it can rely on her oral evidence to make many of its findings.

31. As to the purpose of the applicant’s travel to and stay in Australia, the Tribunal accepts that the applicant came to Australia in June 2014 as a primary student visa holder, and since July 2017 has been a dependent on her husband’s student visa.  The Tribunal observes that the applicant, in her own right, pursued accounting studies from June 2014 until mid-2017, before succumbing to her mental health issues and ceasing her studies. In addition, the applicant’s husband has been committed to completing the study for which he was granted his student visa. The Tribunal accepts, therefore, that the applicant was fulfilling the purpose of her travel to, and stay in, Australia from the time of her arrival in June 2014 up until the time of the cancellation in 2017.  In addition, the evidence before the Tribunal is that the applicant’s support from (as well as of) her husband has been critical to both parties pursuing studies to achieve Australian qualifications.  The Tribunal gives this factor some weight in favour of the visa not being cancelled.

32. The Tribunal has considered the extent of compliance with visa conditions.  The delegate’s decision sets out that the applicant has shown limited regard for the conditions attaching to her previous and current visa.  Specifically, in addition to the breach of the working condition, the applicant ceased her studies early and therefore, according to the delegate, did not comply with condition 8202.  The delegate also records that the applicant failed to notify the Department of an address, therefore breaching condition 8533.   The applicant denies that she ever encountered any problems with the Department while she was the holder of her subclass 573 student visa.  She said that, despite her psychological struggles, she maintained her studies while she was the holder of that visa.  She also told the Tribunal that her education provider had undertaken to inform the Department through its systems of a change of her address.  It is the case that the applicant has breached condition 8104.  However, the Tribunal accepts the evidence of the applicant in respect of the purported breaches of conditions 8202 and 8533, and gives this factor little weight towards her visa remaining cancelled.

33. The Tribunal does not accept that the circumstances in which the ground of cancellation arose were beyond the applicant’s control.  It has found that she worked well in excess of the hours she was permitted to work in a fortnight between 3 and 30 April, 15 and 28 May, and 18 September and 29 October 2017, and the Tribunal considers this breach to be significant.  However, the Tribunal does accept that the costs the applicant’s mother incurred in relation to her medical treatment, at a time when her husband was not present to support her, were significant and 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. 

34. With respect to the degree of hardship, the applicant indicated to the Tribunal that a visa cancellation will be a big setback for her, her husband and her family, both emotionally and financially.  The applicant claims that her mental health would be hindered if the visa was to remain cancelled. The Tribunal has also had regard to the applicant’s claim that she and her husband, for pleasure as well as professional reasons, would like to travel in the future as well as possibly pursue further study either here or in another country, and the “black mark” of a visa cancellation will have enormous implications on their ability to do either of these things.  In this particular case, and on the evidence before it, the Tribunal accepts that hardship will be caused to the applicant and her husband by the cancellation of the visa.  The Tribunal gives this factor some weight towards the visa not being cancelled.

35. There is no evidence before the Tribunal that the applicant has ever had a visa cancelled or refused in Australia.  The Tribunal gives this some limited weight in favour of not cancelling the visa.

36. If the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia.  Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia.  The Tribunal gives this some limited weight in the applicant’s favour.

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

38. There is nothing to suggest, and the applicant does not claim, that any international obligations would be breached as a result of the cancellation.  The Tribunal gives no weight to this consideration.

39. The Tribunal recognises that the cancellation of a visa is a significant matter and has weighed the evidence before it, including evidence that was not available to the delegate at the time of decision.  Whilst finely balanced, it considers that the discretionary factors above indicate that the applicant should be given an opportunity to remain in Australia with her husband, while he is engaged in study.

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

    DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) 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.