Gao, Cheng [2004] MRTA 1698 (17 March 2004)

REVIEW APPLICANT: Mr Cheng Gao, born 30 May 1981, a citizen of the People's Republic of China.

DECISION: The Tribunal sets aside the decision under review and substitutes a decision that the review applicant's Student (Subclass 573) not be cancelled.

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate) on 13 December 2003 to cancel the Subclass 573 (Higher Education Sector (Student)) visa held by Mr Cheng Gao, a national of the People's Republic of China born 30 May 1981 (the review applicant). The delegate's decision to cancel the visa was made under the Migration Act 1958 (the Act).

The review applicant lodged a valid application for review to the Tribunal on 18 December 2003. The decision is reviewable by the Tribunal and the application for review has been validly made by a person with standing to apply for review.

Section 338(3) of the Act sets out the MRT's general power to review cancellation decisions, allowing review of a decision to cancel a visa of a non-citizen who is in the 'migration zone' at the time of cancellation and not in immigration clearance

When reviewing a cancellation decision, the Tribunal generally restricts itself to considering the grounds for cancellation raised by the delegate. It also examines the procedures followed by the delegate in cancelling the visa to ensure that the requirements set out in the Act have been met.

In reaching a decision on a review, the Tribunal is bound by the Act, the various regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). Policy guidelines should be observed where they are not inconsistent with the legislation and where there are no cogent reasons against their application.

The Tribunal has the power to affirm, vary, or set aside a decision to cancel a visa. Where the Tribunal sets aside a decision to cancel a visa, the effect is that the visa was never cancelled even if grounds for cancellation are established. If the visa would have otherwise expired, the outcome is that the visa is no longer current but that the particular consequences of cancellation no longer apply (e.g. the restrictions on applying for another visa).

The legislation, policy and other materials immediately relevant to this review are:

Section 116 of the Act.

Part 573 of Schedule 2 to the Regulations

Migration Series Instruction: MSI 368 'Visa Cancellation under sections 109, 116, 128 and 140'.

Pradhan v Minister for Immigration and Multicultural Affairs (1999) FCA 1240

Braun v Minister of Immigration Local Government and Ethnic Affairs [1991] FCA 611; (1991) 33 FCR 152

Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258

The Tribunal generally has regard to the Regulations as they stood at the time of a visa cancellation. However, subsequent amendments may apply in some circumstances.

The Tribunal before it MRT case file N03/08598 and the Departmental file CLF2003/067429. The files reveal the following.

The review applicant arrived in Australia on 15 November 2003 as the holder of a Subclass 573 (Higher Education Sector (Student)) visa. This visa was granted offshore on 10 November 2003 and was due to cease on 15 March 2006. The visa had condition 8101 (no work) attached. This visa was granted on the basis of the review applicant's continued enrolment in English language study at Meridian International School for 2 months and then a Bachelor degree in Information Technology at Central Queensland University (CQU), Sydney campus. The visa was cancelled on 13 December 2003 after it was found that the review applicant had breached condition 8101.

The review applicant was located by Departmental Compliance officers on 13 December 2003 whilst working as a kitchen hand. There are no location notes contained on the Department file.

The review applicant was detained in accordance with section 192 of the Act and transferred to a Departmental office. At this time the review applicant was issued with a Notice of Intention to Consider Cancellation (NOITC) pursuant to section 116 of the Act. The notice was issued on the grounds that the review applicant may have worked in breach of condition 8101 attached to his current visa. An interview was scheduled to take place 30 minutes later.

During this interview the review applicant is recorded to have stated the following:

[theta]

He is aware that he had made a mistake by not reading the letter given to him by immigration and the "Fijian Embassy". He had relied upon information from his friends that he was entitled to work up to 20 hours per week.

[theta]

He had attended a Departmental office on the previous day with a "157P" and was told that he needed verification of his school attendance provided by his education provider.

[theta]

He was unable to work in Fiji whilst he was student there for 3 years. He studied at the CQU International campus.

The delegate noted that the review applicant was very co-operative and very disappointed at the prospect of his visa being cancelled. He did not intentionally breach a visa condition.

The Tribunal understands that a "157P" is Departmental terminology for a form requesting permission to work.

In the decision record the delegate found that the review applicant had been workng at "FUJIYA". The delegate considered the review applicant's statements. However the delegate found that the reasons to cancel the Student visa outweighed those not to cancel the visa. Cancellation therefore occurred under the discretionary power of section 116(b).

17.

An application for review of this decision was lodged with this Tribunal on 18 December 2003. At this time the visa applicant claimed that there were grounds for setting aside the decision to cancel which was "based on misunderstandings".

On 7 January 2004 the review applicant provided a written statement to the Tribunal which can be summarised as follows:

He applied for and was granted his Student visa whilst in Fiji where he was studying.

His English was not very good and he was instructed to complete a language course, which he has done.

When he received his visa the information package had too many English words in it and he therefore paid no attention to the documents.

At the time of his enrolment at Meridian he was not provided with any extra information in relation to his visa requirements.

Friends and classmates in Australia informed that international students were permitted to work 20 hours per week. He was not informed that he should actually apply for a new student visa.

His friend worked at Fujiya Japanese Restaurant and sustained a workplace injury. So that his friend did not lose his job, the review applicant took it temporarily.

He worked on the evenings of 6, 7 and 8 December 2003, during which his academic results were good.

On 8 December 2003 a staff member at the restaurant informed him that he should apply for permission to work. Therefore he approached School on 9 December 2003 in order obtain the forms for such an application.

On 12 December 2003 he attended a Departmental office to lodge this form and was informed that he could be granted permission to work. However he was required to provide documents from his education provider. As the office was closing 4pm the review applicant was informed that he could bring these documents back on 15 December 2003.

The Tribunal was also provided with academic documents indicating that the review applicant would complete his English course at Meridian on 30 January 2004.

On 30 January 2004 the Tribunal wrote to the review applicant in accordance with section 359A of the Act and invited him to comment, in writing, on information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. Essentially this information was that the review applicant had not denied working.

A hearing was held on 26 February 2004 and oral evidence was given by the review applicant. The evidence is incorporated into the following discussion.

There is no dispute that the primary decision-maker in this case followed the procedure set out in subdivision E of the Act for the cancelling of visas under section 116 (General power to cancel).

The matter before the Tribunal is the decision to cancel the review applicant's visa. This decision was made in exercise of the power to cancel visas under section 116 of the Act.

The delegate in this case, in arriving at a decision to cancel the visa, relied on the grounds provided by section 116(1)(b). The relevant parts of section 116 in force at the time of the cancellation decision are set out below:

Section 116. Power to cancel

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

...

(b) its holder has not complied with a condition of the visa; or

...

(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

Section 116(1)(b) of the Act provides for cancellation where 'its holder has not complied with a condition of the visa.' The review applicant's visa was cancelled for breach of condition 8101 (found in Schedule 8 of the Regulations).

The Federal Court in Pradhan found that the scheme of the Act and Regulations does not provide for variation of conditions during the term of the visa. Consequently, the operative version of condition 8101 is the version that was applicable at the time of visa grant. At the time of visa grant condition 8101 provided:

8101 The holder must not engage in work in Australia.

Regulation 1.03 defines work as 'an activity that, in Australia, normally attracts remuneration'.

The definition provided in regulation 1.03 has been interpreted to include an individual who does not personally receive remuneration for an activity. It is sufficient that it 'be an activity that normally attracts remuneration' (Braun)

In Braun, however, the Court acknowledged that individuals do engage in activities of a domestic or social character. In such a case the activity should not be regarded as work. The decisive factor of whether an activity should be regarded as work is a 'matter of evaluation and degree'.

In considering whether or not the applicant has undertaken 'work' as defined in the Regulations, the Tribunal has had regard to the Federal Court decision in Kim v Witton, where Sackville J considered a number of authorities in relation to the definition of work and then, at page 268, said:

The test is not whether the individual performing the activity receives remuneration for it, nor whether he or she performs the activity for commercial purposes or for some other reason. The test to be applied is an objective one, namely, whether the 'activity' performed by the individual normally attracts remuneration in Australia.

The review applicant admits that he worked on 8 December 2003 and 13 December 2003. He undertook training on 6 December 2003 and 7 December 2003. He was paid about $83 for the 2 days of work. The Tribunal finds that the visa applicant breached condition 8101. The visa is therefore liable to cancellation under subsection 116(1).

32.

No prescribed circumstances under subsections 116(2) and 116(3) exist in this case. In other words, there is the exercise of a discretion, the Tribunal having found that the grounds under section 116(1) have been made out. In considering whether to exercise its discretion to cancel the applicant's visa, the Tribunal has had regard to the matters identified in the policy guidelines contained in the MSI referred to above, in particular:

•

The purpose of the visa holder's travel to and stay in Australia;

The review applicant came to Australia to study. His course is due for completion in March 2006. The Tribunal finds that if the visa is cancelled the review applicant will lose a significant educational opportunity.

•

The extent of non-compliance with any conditions;

The review applicant did not comply with condition 8101 for 2 days. He earned $83. The Tribunal considers the breach to be a minor breach.

•

The degree of hardship which may be caused to the visa holder and any family members;

The review applicant has 13 subjects to complete before graduating. He has finished 2/3 of his degree. If his visa is cancelled, he will not be able to finish his degree. The Tribunal considers that the cancellation of the visa would lead to a significant loss to the review applicant.

•

The circumstances in which the ground for cancellation arose;

•

The person's behaviour in relation to the Department, now and on previous occasions;

At the time of location the review applicant was noted to have been very cooperative with Departmental officers and extremely disappointed at the prospect of a visa cancellation. The visa applicant learned on 8 December 2003 that he did not have permission to work. He then approached the Department in order to rectify his position. The Tribunal finds that the review applicant has been cooperative with the Department.

•

Any other matters the visa holder raises.

The review applicant did not understand the information package given to him at the time of the visa grant and relied upon information from other students that he was permitted to work in Australia for 20 hours per week. The Tribunal considers that the review applicant has acted foolishly.

When considering the matters set out in policy the Tribunal reaches the decision that the reasons for not cancelling the visa outweigh the reasons for cancelling the visa. In particular, the Tribunal has found that the breach was a minor breach, that the cancellation of the visa would result in a significant loss to the review applicant, and that the review applicant has been cooperative with the Department.

The Tribunal therefore finds that the cancellation of the visa should be set aside. The application for review must therefore succeed.

The Tribunal sets aside the decision under review and substitutes a decision that the review applicant's Student (Subclass 573) not be cancelled.