TAN (Migration) - [2019] AATA 1384

TAN (Migration) [2019] AATA 1384 (9 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms OWN BOON TAN
CASE NUMBER:  1727758
HOME AFFAIRS REFERENCE(S):           CLF2017/59900
MEMBER:Stephen Witts
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 10:08am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 570 (Independent ELICOS Sector) – did not appear before the Tribunal – ground for cancellation – work hours limitations – exceeded 40 hours per fortnight – records of timesheets – consideration of discretion – significant breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 1.03; 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

This is an application for review of a decision dated 3 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant's Subclass 570 Student (Temporary) (Class TU) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116 on the basis that the applicant was in breach of visa condition 8105 that stipulates that the applicant is permitted to work up to 40 hours a fortnight while her course is in session. The issue in the present case is whether that ground for cancellation is made out.
The applicant did not appear before the Tribunal on 9 May 2019 to give evidence and present arguments. On that basis the Tribunal determined the matter on the papers.
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
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?
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.
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.
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.
In the present case the applicant was allegedly undertaking work as a waitress at the Roast Duck Inn in Carrington Road Box Hill in breach of visa condition 8105.
According to the delegate’s decision record, provided to the Tribunal by the applicant, dated 3 November 2017, on 25 July 2017 Australian Border Force (ABF) officers attended XNN Pty Ltd trading as the Roast Duck Inn in Box Hill for the purpose of executing a s251 Migration Act 1958 warrant. During the execution of the warrant evidence of hours worked by staff was obtained in the form of photographs of timesheets and staff contact details. According to the delegate, the applicant was identified on timesheets, which were also matched to her mobile telephone number in her departmental client file. According to the delegate, these photographed timesheets indicated that for the period 13 March 2017 to 17 July 2017 that the applicant was working full-time with an average of 44 hours a week. Information held by the Department indicates that for this period the applicant was enrolled in a Certificate II in EAL (Access) at Southern Cross Education Institute Pty Ltd. On 15 August 2017, the Institute provided the dates that the applicant’s course was in session. According to the delegate, evidence obtained indicated that the applicant was working more than 40 hours a fortnight during the specified period while her course was in session and on that basis, the applicant failed to comply with visa condition 8105.
On 22 August 2017, the applicant was notified of the intention to consider cancellation (NOICC). The applicant provided responses at interview on 22 August 2017 and in writing on 25 August 2017. The Tribunal has considered these responses.
The applicant in her submission to the Tribunal (AAT file folio 7-8) stated that she came to Australia to study English. In paragraph 6 of the submission she stated that:
“During the period 13 March 2017 to July 2017, that specified period I was really enrolled in certificate II in EAL and the dates that my course was in session.”
The applicant also stated that she provided to her supervisor details of her availability to work which was placed on the businesses timetable, viewed by the ABF, and that this was her availability not her actual hours worked. In her submission, she noted that her supervisor, Ms Ying Jessica Zhang, was interviewed at the Melbourne ABF office where she advised officers that this record was used to calculate staff pay. She stated that she didn’t know why her supervisor gave this information to the ABF as these hours recorded are not necessarily hours that she actually worked.
As the applicant did not appear before the Tribunal on 9 May 2019 the Tribunal has made a decision based on the material and evidence before it in the delegates file and in the AAT file.
The Tribunal has considered this material and does not find it plausible that the applicant was not working in contravention of visa condition 8105. It was clear from the delegate’s decision that the applicant was correctly identified as being a person who was engaged in paid employment at the Roast Duck Inn. It was also clear from the material that the applicant was working in excess of 40 hours per fortnight as stipulated in this visa condition. In her written submission the applicant stated that these records represented available working hours not hours worked. However evidence from the applicant’s supervisor demonstrated that these were working hours and that the applicant was working approximately 44 hours per week. It was also clear from the evidence that the applicant’s course was in session at this time.
It is also noted by the Tribunal that this work was not part of a course requirement specified at the time the course was CRICOS registered.
For these reasons, the Tribunal finds that the applicant has not complied with condition 8105.
Therefore, the Tribunal finds that the applicant has not complied with condition 8105 of the visa.
Consideration of the discretion to cancel the visa
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’.
The Tribunal has considered any submissions provided to the Department and the Tribunal.
·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
As the applicant did not attend the hearing no other evidence was available to the Tribunal and the Tribunal finds that on the evidence available the applicant has not demonstrated a compelling need to remain in Australia.
·the extent of compliance with visa conditions
The Tribunal has found that the applicant was in breach of her visa conditions by not adhering to visa condition 8105, which precludes the applicant from working more than 40 hours per fortnight whilst her course is in session. But there is no evidence to indicate the applicant has breached other conditions.
The Tribunal expects that a visa holder will generally adhere to the conditions of their visa and the Tribunal is mindful of the significance of the breach. As such the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As above, as the applicant did not attend the hearing no other evidence was available to the Tribunal and the Tribunal finds that on the evidence available the applicant has not demonstrated that she would experience hardship should she not be able to remain in Australia.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The Tribunal finds that there are no grounds for cancellation beyond the visa holder’s control.
·past and present behaviour of the visa holder towards the department
There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department of the Tribunal in her dealings. However, this is expected of all visa holders.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellations under s.140.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful of the applicant could become an unlawful noncitizen and detained and removed from Australia pursuant to ss. 189 and 198, it may be difficult to be granted further visas, and she may be subject to a three-year exclusion period under relevant Public Interest Criterion.
It is unlikely however that the visa applicant will be detained but rather provided with a time-limited period in which she can leave the country or apply for review of the decision.
·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is nothing before the Tribunal to indicate any international obligations to consider.
·any other relevant matters.
The Tribunal appreciates an education from Australia may enhance the applicant’s career, however, the population and economy of the applicant’s home country is significant and there are many people in full-time professional employment, without a specific education from Australia. The Tribunal has considered the applicant’s previous statements and the evidence in the delegates file and in the Tribunal’s file however, it finds that the breach is significant. The Tribunal has considered all the factors listed above both individually and cumulatively in the context of the breach. As such, considering the circumstances outlined by the applicant, the Tribunal concludes that the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant's Class TU visa
Stephen Witts
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.