Singh (Migration)

[2019] AATA 1359

Singh (Migration) [2019] AATA 1359 (9 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manpreet Singh

CASE NUMBER:  1717546

HOME AFFAIRS REFERENCE(S):           BCC2016/1418135

MEMBER:Margie Bourke

DATE:9 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2019 at 3:18pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – work hours limitations – exceeded 40 hours per fortnight – consideration of discretion – non-compliance period of five months – financial support to father – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8105

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 7 August 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 under s.116 on the basis that the applicant had not complied with condition 8105, and had worked for extensive hours in excess of the 40 hours per fortnight during the period  9 January 2017 and 11 June 2017. The issue in the present case is whether that ground for cancellation  is made out, and if so whether the power to cancel the visa should be exercised.

3. The applicant appeared before the Tribunal on 29 April 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and the Punjabi languages.

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

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

   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 8105 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 8105?

7. Condition 8105, as it applies in this case is extracted in the attachment to this decision.  It requires that the visa holder must not engage in any work in Australia before the course of study commences. In addition, once the course of study has commenced, the visa holder must not engage in work for more than 40 hours a fortnight except in certain circumstances involving specified course-related work and masters or doctoral degree courses.

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: 8105(3). ‘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 the applicant was allegedly undertaking work as a kitchen hand at the A R Café and at the S Hotel. In the hearing the applicant and his representative both stated that the applicant was the holder of a visa which was subject to condition 8105, and the applicant breached condition 8105 by exceeding the work hours limitation on his visa.  On the Department file, there were payslips and timesheets of the hours worked by the applicant during the period  9 January 2017 to 11 June 2017.  The applicant and his representative stated in the hearing, it was not disputed that the applicant worked those hours, and the information in relation to the hours worked by the applicant was correct.

11. Based on the applicant’s written and oral evidence I am satisfied that the applicant was the holder of a student visa, and was enrolled in a course of study.  I am satisfied the applicant had transferred from a computer technology course to commercial cookery course, which he was studying in 2017.

12. Based on the evidence of the applicant I am satisfied that the applicant undertook paid ‘work’ for the purpose of consideration of condition 8105, whilst the holder of the visa which was subject to condition 8105.  Further I am satisfied that the applicant  exceeded the limit of 40 hours per fortnight between the period of 9 January 2017 and 11 June 2017 on eight separate fortnights by between 14 and 47.5 hours.

13. There is no evidence before me that the applicant was entitled to any exemption from the requirements of condition 8105.

14. For these reasons, the Tribunal finds that the applicant has not complied with condition 8105.

    Consideration of the discretion to cancel the visa

15. 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’.

16. Purpose of the applicant’s travel and stay in Australia:- I am satisfied that the applicant came to Australia in September 2015 as the holder of a student visa and commenced studies in a computer technology course.  I am satisfied the applicant changed to a commercial cookery course which he commenced in June 2016 and was due to complete in August 2017.  The applicant stated that his visa was cancelled ten days prior to the end of the course so he never finished the commercial cookery course certificate III.  There was no evidence provided as to the applicant’s participation or successful completion of assignments in the certificate III course in 2017.  There is evidence before me that the applicant was working extensive hours over a long period of time during the period in 2017 that he was enrolled in the full time course of study. The applicant stated he came to Australia to obtain academic qualifications, and he has not obtained any academic qualifications.

17. The applicant is enrolled in commercial cookery certificate III and IV, a diploma of hospitality, and a Bachelor of Business which will take a total of five years study to complete. The applicant stated he is required to remain enrolled in courses of study, and pay the deposits for the tuition. The applicant has continued to work for twenty hours per week at A R café and provided a reference that confirmed he is involved in food preparation and cooking and baking. The applicant stated he required the academic qualifications and not just the work experience to obtain employment or to set up a business when he returned home.

18. I give weight in the applicant’s favour to the circumstances that cancellation of the visa will prevent him from being able to continue his studies in Australia at this time.

19. The extent of compliance with the visa conditions :- the only evidence of non-compliance with visa conditions by the applicant is his non-compliance with condition 8105.  The evidence before me is that the applicant did not comply with condition 8105 over a five month period from 9 January 2017 to 11 June 2017, by working for extensive hours above the limitation of forty hours per fortnight on eight fortnights. I give this weight in favour of cancellation of the visa.

20. Degree of hardship that may be caused:- the applicant stated that he was 21 years of age when he arrived in Australia, and as he is now 24 years of age and does not have any academic qualifications, the time  in Australia would have been wasted if the visa is cancelled. As the visa was cancelled by the Department  and the applicant was consequently unable to study from late 2017 because the applicant breached the conditions of his student visa, I do not give this claim of ‘wasted time’ any weight in favour of the applicant.

21. The applicant stated both he and his father would suffer stress if he has to return to India at this time.  There was no medical evidence to support this claim that either the applicant or his father would suffer stress if the applicant had to return. I do give some weight to the applicant’s oral evidence that he would suffer stress, and find it difficult to face his father if he had to return to India without achieving the studies he came here to achieve, and I give this weight in the applicant’s favour.

22. Circumstances of the non-compliance :-  The applicant stated that he had to work the extra hours because of his father’s health.  The applicant provided medical reports that recorded his father had a heart problem and had a stent inserted in October 2015, and had suffered a kidney stone and operation in 2018.  The applicant stated his father was retired from the army, and the army paid for his surgery in 2018.  The applicant stated his father did part time security work in his retirement, but this was limited after October 2015. The applicant stated his father had paid for his computer technology course in 2015 and his health insurance, and then his commercial cookery course in 2016, which in total cost about $20,000. 

23. The applicant stated he was working the forty hours per fortnight since his arrival to support himself, and then needed to work more hours in order to provide financial support to his father.  He stated he had sent money to his father.  Initially the applicant stated he transferred the money online, and then explained he arranged the payments through Western Union and paid by his bank card.  The applicant stated in his evidence a few times that he sent the money through Western Union, and he paid by his bank card.

24. I invited the applicant to provide records of his financial support to his father through bank statements or Western Union records, or any other information. The applicant stated the transfers were made to his brother and not his father.  I stated that the fact that I had invited the applicant to provide financial records did not necessarily indicate I accepted his evidence, or would accept that he breached condition 8105 in 2017 to his provide his father with financial support due to his serious health issues.  I granted the applicant seven days to provide any further evidence that he may wish to provide, with the option to seek an extension of time if required.

25. After the hearing the applicant provided copies of his bank statements from 25 January 2017 to 26 July 2017. There were no records of transfers or withdrawals to Western Union. The applicant had underlined the records of withdrawals to Worldremit*AusSydney in the bank statements.  The withdrawals do not record the money was sent to a family member.  The applicant has not provided any records that the money was transferred to or received by a family member.  I have considered the evidence, that includes the applicant gave oral evidence of providing financial support to his father at the time of the non-compliance through the use of bank card payments to Western Union, which is not consistent with the documentary evidence provided by the applicant.  I am not satisfied the applicant breached condition 8105 in order to provide financial support to his ill father.  I do not accept the applicant’s explanation for the extensive hours he worked in breach of the conditions of his visa when he was enrolled in a course of study.

26. I have considered that the evidence and medical reports in relation to the applicant’s father’s ill health is that he was not ill in 2017.  There is no evidence that there were circumstances beyond the applicant’s control, or evidence of serious family circumstances in 2017 when the circumstances of the non-compliance arose. I give the circumstances of the non-compliance weight in of favour of cancellation of the visa.

27. Past and present behaviour towards the Department:- In the Department decision record the delegate records that the applicant initially denied that he was working for the S Hotel at the relevant time.   I have no evidence of this dishonesty towards the Department  and give it no weight. I give weight to the applicant’s cooperation, and give this weight in favour of the applicant.

28. Consequential cancellations :- There is no evidence that there would be any consequential cancellations under s.140 of the Act.  I give this consideration no weight.

29. Mandatory legal consequences :- The cancellation of the visa would attract the exclusion period pursuant to PIC 4013 for the applicant.  The applicant would be liable to the relevant consequences of a cancellation of the visa pursuant to s.48, and the consequences of becoming unlawful, which  include possible detention if not granted a bridging visa.  I give these consequences weight in the applicant’s favour.

30. International obligations :- there is no evidence that the cancellation of the applicant’s visa would engage any of Australia’s international obligations.  I give this consideration no weight.

31. Overall I have considered that the reasons to cancel the applicant’s visa outweigh the reasons not to cancel the applicant’s visa.  Upon assessment of the evidence before me, I find the extent of the non-compliance and the circumstances of the non-compliance outweigh the other considerations.

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

    DECISION

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

    Margie Bourke
    Member

    
    

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

    8105(1A)  The holder must not engage in any work in Australia before the holder’s course of study commences.

    (1)Subject to subclause (2), the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.

    (2)Subclause (1) does not apply to

    (a)     work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students; and

    (b)    in relation to a [Subclass 574 (Postgraduate Research Sector) visa/student visa granted in relation to a masters degree by research or doctoral degree] if the holder has commenced the masters degree by research or doctoral degree.

    (3)In this clause:

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