TAN (Migration)

This matter concerned an appeal by a student visa holder against the cancellation of her Student (Temporary) (Class TU) visa, Subclass 570 (Independent ELICOS Sector). The applicant did not appear before the Tribunal, and the central issue was whether she had breached condition 8105 of the Migration Regulations 1994 by exceeding the permissible work hours.

The Tribunal was required to determine whether the applicant had complied with condition 8105, which limits work to 40 hours per fortnight when a course of study is in session, and if a breach had occurred, whether the discretion to cancel the visa should be exercised. The definition of "fortnight" as a 14-day period commencing on a Monday, and "work" as an activity that normally attracts remuneration, were also relevant considerations.

The Tribunal found that the applicant had breached condition 8105. Evidence from timesheets obtained by Australian Border Force officers indicated that the applicant worked an average of 44 hours per week between March and July 2017, while enrolled in a Certificate II in EAL (Access) course. Applying the objective test for what constitutes "work," the Tribunal concluded that the applicant's activities as a waitress attracted remuneration and exceeded the fortnightly limit. In considering the discretion to cancel, the Tribunal noted the applicant's failure to demonstrate a compelling need to remain in Australia or any hardship that would be caused by her departure, and that the breach was not beyond her control.

The Tribunal affirmed the decision to cancel the applicant's visa.