Singh (Migration)

[2019] AATA 2400

Singh (Migration) [2019] AATA 2400 (12 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arwinderjit Singh

CASE NUMBER:  1717203

HOME AFFAIRS REFERENCE(S):           BCC2015/3184574 CLF20127/57010 CLF2017/57010

MEMBER:Jason Pennell

DATE:12 April 2019

PLACE OF DECISION:  Melbourne

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 12 April 2019 at 9.32am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – breach of condition – applicant undertook work in excess of 40 hours per week – purpose of travel and stay in Australia was to study – breached condition inadvertently – not premediated attempt to work on permanent basis – opportunity to work additional hours for period of time – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994, Schedule 2, 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 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 that the applicant failed to comply with condition 8105. The issue in the present case is whether that ground for cancellation is made out.

3.The applicant appeared before the Tribunal on 11 April 2019 to give evidence and present arguments. Ms Jayah Rose and Ms Amanpreet Kaur also attended the Tribunal hearing to give evidence.

4.The applicant was represented in relation to the review by his 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 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?

1. 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.

2. 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.[1] ‘Work’ is defined to mean ‘an activity that, in Australia, normally attracts remuneration’.[2]

   [1] Condition 8105(3) of the Migration Regulations 1994

   [2] r.1.03 of the Migration regulations 1994

3. The determination of whether an activity is ‘work’ is a matter of evaluation and degree. Generally, activities of a domestic or social nature are not work.[3] The test that applies is an objective one.[4] 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 assist in determining whether a particular activity undertaken voluntarily is one that normally attracts remuneration.[5] It will depend on the circumstances of each case.

   [3] Braun v MILGEA (1991) 33 FCR 152 at 156

   [4] Kim v Witton (1995) 59 FCR 258 at 268

   [5] Dib v MIMA (1998) 82 FCR 489, at 495-496

4. In the present case, the applicant’s student visa was cancelled on the basis that he undertook work as a security guard and did not comply with condition 8105.

5. The applicant was born on 7 August 1994 Amritsar, Punjab India. The applicant’s father is a retired police officer and his mother is engaged in home duties. The applicant has two sisters (one younger and one older) both of whom live in Australia. The applicant attended primary school at SSSS Public School and then SRI Guru Harkrishan Senior Secondary Public School to year ten. He completed years eleven and twelve at the Dashmash Public School in Amritsar.

6. The applicant commenced a Diploma of Building and Construction (Building) at Melbourne Polytechnic on 12 February 2013 and completed the course on 15 December 2014.

7. On 10 November 2015 the applicant was granted a Student (subclass TU573) visa and commenced a Bachelor of Engineering Technology (Civil) at Melbourne Polytechnic on 9 February 2015. 

8. On 2 August 2017 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) by which the department advised the applicant that it was its intention to cancel his student visa.  It alleged that it had come to the department’s notice that the applicant had not complied with condition 8105 of this his visa by working in excess of 40 hours per week between 1 May 2017 and 30 June 2017and again between 17 July 2017 and 26 July 2017. On 2 August 2017, the department made a decision to cancel the applicant’s visa on the basis that he had breached condition 8105 of his visa as alleged in the NOICC.

9. The applicant admitted to the department and to the Tribunal that he had breached condition 8105 by working in excess of 40 hours during the period in question. By his statutory declaration dated 15 August 2017 the applicant declares that he did breach  condition 8105 but states that the department had overstated the amount of time worked due to the fact that it had not taken into account the overtime rates paid to the applicant during the period in question. The applicant states that he breached condition 8105 inadvertently and not as a result any attempt to obtain full time employment in breach of the conditions of his student visa.  

10. Therefore, based on the applicants own evidence the Tribunal finds that the applicant has not complied with condition 8105 of the visa.

Consideration of the discretion to cancel the visa

1. 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’.

Applicants purpose of traveling and staying in Australia.

1. During the course of the hearing, the applicant confirmed that his intended purpose of traveling and staying in Australia was to study a Diploma of Building and Construction (Building). He stated that, on the advice of his Uncle, he enrolled and has completed Bachelor of Engineering Technology (Civil) for the purposes of obtaining a more specialised engineering qualification.

2. On 10 November 2015, the applicant was granted a Student (subclass TU573) visa and commenced a Bachelor of Engineering Technology (Civil) at Melbourne Polytechnic on 9 February 2015. The applicant completed the course in or about July 2018 and attended his graduation ceremony in March 2019.   

3. Therefore, Tribunal is satisfied that the applicant’s intention at the time of his visa application was to travel and stay in Australia to study. As such, the applicant’s intention at the time of his visa application does not constitute a reason to cancel his visa. Accordingly, the Tribunal has given some weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study.

Compliance with visa conditions

1. At all relevant times, save for his breach of condition 8105 as alleged, the applicant had complied with his visa conditions. The applicant evidence was that he had inadvertently breached the condition 8105 because of he was offered extra work during a period when his course load had diminished. The applicant has otherwise maintained his enrolment in a registered course, maintained his attendance at that course, completed the course and obtained good results. By doing so, the applicant has displayed an overall willingness to comply with the conditions of his visa. The Tribunal gives some weight in favour of the applicant in relation to this factor.

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s evidence was that because of obtaining a condition to his bridging visa to be able to study he has been able to complete his course. The applicant states that he now in a relationship with Ms Jayah Rose now wishes to apply for a partner visa. He states that if the decision to cancel the visa is affirmed it will prejudice his application for a partner visa. In addition, he states that he will be required to return to India without his partner and separating them.

2. The Tribunal accepts that if applicant’s visa is cancelled, he will suffer some personal hardship. However, in circumstances where the applicant has completed his course and he has obtained the necessary qualifications, the Tribunal places little weight on the applicant evidence as to the hardship he may suffer in the future. Any issues concerning his application for a partner visa are matters separate from any considerations concerning his student visa. As such, the Tribunal gives little weight in favour of the applicant in considering this factor.

The circumstances in which the grounds for cancellation arose

1. The applicant admitted to the department and to the Tribunal that he had breached condition 8105 by working in excess of 40 hours during the period in question. By his statutory declaration dated 15 August 2017 the applicant admits to breaching 8105 but states that the department had overstated the amount of time worked due to the fact that it had not taken into account the overtime rates during the period in question. Nevertheless, the applicant conceded to the Tribunal that he had breached the condition but stated that he did so inadvertently.

2. The applicants evidence to the Tribunal was he had worked in excess of the hours allowed under condition 8105 inadvertently  hours during the period in question due to the fact that his employer had been short staffed during the school holiday period and had asked him to ‘fill in’ for other workers. His evidence was that because he coming to the end of his course, his course load had become lighter and as a result, he accepted the offer of extra work. The applicant evidence was that he had maintained his attendance during his course, had completed the course and achieved good grades throughout the course. The Melbourne Polytechnic’s report dated 8 August 2017 confirms that he had maintained his attendance and obtained good grades. The applicant’s evidence was that he had breached the condition inadvertently and not because of any premediated attempt to work on a permanent basis while on his student visa. The Tribunal accepts that applicant evidence in this regard.   

3. Save for the breach of condition 8105 as alleged, the applicant at all other times complied with all the conditions of his visa. The applicant has completed his course and attended his graduation ceremony in March 2019. The Tribunal notes that the applicant’s breach of the condition was not persistent or permanent in nature but rather occurred inadvertently over a relatively short period of time as a result of him having a reduced course load and being offer extra work that had become available due to it being the holiday period.

4. While the circumstances of the breach were not entirely out of the applicant’s control, he is young and motivated to advance his prospects in life. The applicant accepted the work offered to him without fully comprehending or appreciating that he was in breach of condition 8105. When presented with the opportunity to work additional hours he did so without any thought as to the consequences of his actions. As a result, taking into account all the circumstances and the evidence presented by applicant, the Tribunal is satisfied that the applicant breach of the condition was inadvertent. Accordingly the Tribunal gives some weight to the applicant in relation to this factor.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore, 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 573 Higher Education Sector visa.

Jason Pennell
Senior Member

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

1. (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.