Paudel (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Ms. Paudel. The dispute arose from allegations that the applicant breached condition 8104 of her visa by engaging in work for more than 40 hours per fortnight while in Australia. The applicant had been in Australia since 2014, initially on a Subclass 573 student visa, and later became a dependent spouse when her husband obtained a Subclass 500 student visa to undertake studies.

The Tribunal was required to determine whether the applicant had breached condition 8104 of her visa, which restricts student visa holders and their family members to working no more than 40 hours per fortnight. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case. The definition of "fortnight" and "work" under the Migration Regulations 1994 were relevant to this determination.

The Tribunal found that the applicant had indeed breached condition 8104 by working in excess of 40 hours per fortnight at the DOME Café between April and October 2017. However, in considering the exercise of its discretion, the Tribunal had regard to the applicant's explanation that the additional hours were undertaken to send money to her mother for medical treatment following a stroke. The Tribunal also considered evidence of the applicant's academic progress, her husband's studies, and her own mental health struggles, including seeking counselling. The Tribunal concluded that, in light of these circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.