[2003] MRTA 7247

CATCHWORDS: Student visa cancellation under section 116 - Subclass 573 - cancellation mandatory - condition 8105

DECISION: The Tribunal sets aside the decision under review to cancel the review applicant's Student (Temporary) (Class TU) visa and substitutes a decision that the visa not be cancelled.

PURSUANT TO S. 368(1) OF THE MIGRATION ACT 1958

1. 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 7 January 2003 to cancel the subclass 573 (Higher Education Sector) visa held by Mohammad Kasem Kamal (Mr Kamal), a national of Bangladesh born on 26 August 1971. The delegate's decision to cancel the visa was made under the Migration Act 1958 (the Act).

2. Mr Kamal lodged a valid application for review with the Migration Review Tribunal on 13 January 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.

3. Section 338(3) of the Act sets out the Tribunal'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.

4. 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.

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

6. 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 is treated as if it was never cancelled. 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).

7. The Tribunal considered the following material:

8. A hearing before the Tribunal was conducted on 27 October 2003. The presiding member was at the Tribunal in Canberra. Mr Kamal gave evidence by video from the Administrative Appeals Tribunal in Brisbane. No other people gave evidence.

9. Mr Kamal was accompanied by an assistant, Mr Parveen Gupta, who is a solicitor migration agent.

10. Mr Kamal first entered Australia on 5 September 1997 on a Student (Temporary) (Class TU) visa, subclass 560 which was granted on 30 July 1997 (T1, f.77). He was granted further subclass 560 visas on 22 September 1998, 11 November 1999 and 13 December 2000. He next applied for a subclass 573 visa which was issued on 15 March 2002 and which was due to expire on 28 March 2005. The visa was cancelled on 7 January 2003.

11. Mr Kamal was enrolled at the Central Queensland University in a Bachelor of Information Technology degree course. Mr Kamal was also employed by Black and White Cabs Pty Ltd working as a taxi driver.

12. In a file note on the Department file dated 9 October 2002, the officer records:

I rang ....Customer Relations at Black & White Cabs and asked her if it is their requirement that drivers log off from the computer while they take breaks. She said for short breaks such as for a cup of coffee etc drivers use an "on hold" button which enables them to stay logged on, continue to receive jobs and be tracked by GPS. She said that drivers are expected to log off for longer breaks of an hour or more. I asked her if drivers are taught this at their training courses. She said yes. She also said that the computer logs a driver out automatically after 14 hours of continuous use. Also a computer placed on hold will be activated once a driver uses the meter.

13. On 15 October 2002, the delegate issued to Mr Kamal a written notice of intention to cancel the visa, stating that:

You are believed to have breached condition 8105 because records of your log on times obtained from Black and White Cabs Pty Ltd indicate that you have been working as a taxi driver for more than twenty hours per week since your visa was granted on 15 March 2002.

14. Mr Kamal responded to that notice in writing through his agent on 31 October 2002:

9 Our client drives a Taxi on the weekends only. Even during semester breaks he just drives during weekends. Our client further instructs us that he gets a taxi for the weekend and normally drives only two shifts of approximately 10 hours per shift. This excludes meals and other breaks.

11 In Brisbane a taxi is available to a driver for a 12-hour standard shift including meal and rest breaks. A normal 12-hour shift includes starting time, finishing time and all meal and other rest breaks. The actual hours of work are at the discretion of the driver. A 12-hour shift in taxi industry does not mean that a driver works for 12 hours. We draw your attention to a decision of the Immigration Review Tribunal, Ref Q97/01355 dated 23 September 1997, at page 9 the Honourable Tribunal concluded "working a 12 hour shift in the taxi industry simply means that the taxi was available to him for 12 hours".

12 A taxi driver works on the basis of commission and is not paid hourly rates. Therefore it is not required for a taxi driver to inform his/her employer of the actual hours of work and rest. Drivers do not keep records of the actual hours of work. We have been instructed further by our client to advise you that he has not worked more than 20 hours in one week when his educational institution was in session.

13 Our client was in the past sharing a flat with another taxi driver Mr Komang Sutresna ...Our client later on came to know that Mr Sutresna had his driving licence suspended or cancelled. Unknown to our client, Mr Sutresna stole our client's Pin Number and used it to log on to the computer system of Black and White Taxi Company. Our client came to know that Mr Sutresna stole his Pin and was illegally using it when on 29 September 2002, our client tried to log on to the computer system of the taxi company and he was advised by the system that he was already logged on. Our client immediately reported this to the Operation Officer of the Taxi company and who after investigations confirmed that our client's Pin Number was illegally used by Mr Sutresna. We enclose an original letter dated 21 October 2002 from the Taxi Company.

14 We have been instructed by our client to inform you that he has never working on Monday or any other weekdays. He has normally worked on Friday and Saturday nights and sometime on Sunday mornings. We understand that the Taxi Company computer system automatically logs off a driver after a 12-hour period of continuous log in. Even if a driver wants to work for more than 12 hours continuously he/she needs to log in again. The copy of the log in record provided to our client indicates that the records of the log in time are not correct...

The above records of long log in times apparently indicate that the computer records maintained by the Taxi Company are incorrect. Further it is not by any stretch of the imagination possible for a person to drive a taxi continuously for those long hours.

15 Our client further informs us that the Taxis are fitted with a GPS Radar location system. The system enables the taxi company to find out the whereabouts of a particular taxi. The GPS system works only when the driver is logged in with the computer of the Taxi Company. In the past there have been many thefts of the Taxis and to avoid the thefts the owners/managers of the taxis encourage drivers to remain logged in even if they are not working. This enables to easily locate a taxi in case of a theft. Our client was encouraged by the owner of the taxi to stay logged in. This also establishes that log in time on the Taxi company computer system does not mean that a driver has worked all of those hours.

19 Our client is prepared to give a written undertaking to you that he will devote his time towards his studies and will never work for more than 20 hours in one week.

20 Our client now realises that 12 hour shift can also be interpreted as 12 hours work and has discussed this with his employer. Our client's employer has agreed to reduce our client to 10 hours. Our client will now only work for a 10 hour shift out of which he will take meal and other breaks.

22 Should our client's visa be cancelled, then he will not be able to complete his studies in Australia, his career will be ruined.

23 If our client is to go back to Bangladesh before completion of his studies, he and his family will feel shame. Our client may suffer from depression sadness and stress, as his career will be ruined.

We most respectfully submit that our client is a genuine student in Australia and he has not breached condition 8105 or any other condition of his student visa and he has not actually worked more than 20 hours per week (D1, ff.22-27).

15. A statement from Black and White Cabs Pty Ltd dated 21 October 2002 states that Mr Kamal's Pin Number was changed on 2 October 2002 as another driver had been using his Pin.

16. On 7 January 2003, the delegate proceeded to cancel Mr Kamal's student visa, on the prescribed ground that Mr Kamal was found to have breached condition 8105. In the decision record, the delegate in part states:

I consider that the are grounds for cancellation under paragraph 116(1)(b).

* Mr Kamal's log on times indicate that on most weekends he logged in at approximately 1600hrs on a Friday and logged out late on the Sunday night or early on the Monday morning therefore he cannot have returned the taxi on a Sunday as he claims. Information from taxi companies, taxi operators and Qld Transport Inspectors indicates that it is a common practice for weekend drivers to take a taxi from 1600 hours on a Friday and return it at 0400hrs on the Monday morning, a period of 60 hours. Mr Kamal's logged on times match this practice. He therefore has a taxi available for within a sixty-hour period on most weekends.

* Information from Taxi companies, taxi operators, drivers and Qld Transport Inspectors is that a standard shift for a taxi driver is 12 hours however as this includes meal and rest breaks the actual time a driver spends working is usually between 8 and 10 hours. Mr Kamal generally had a taxi from 1600hrs Friday to early Monday morning, a period of five standard shifts. He therefore had ample time to work significantly more than twenty hours while taking adequate meal and rest breaks. This would have presented no problem for him to work one shift per day on a Friday, Saturday and Sunday, a total of at least 24 hours work per week. I consider that his log reflects this;

* Black and White Cabs Pty Ltd have advised that their computer automatically logs drivers out after 14 hours. Therefore it is not possible for Mr Kamal to have remained continuously logged in for the whole time from Friday afternoon to Sunday afternoon without being in the car or continually returning to it to log in again. I consider it unlikely that Mr Kamal would put up with the inconvenience of having to regularly log in all weekend when he wasn't driving. It would seem more reasonable to return to the taxi rather than having to attend to it continually. If Mr Kamal usually worked Friday and Saturday nights as he claims it makes no sense for him to have held on to the taxi until Sunday night or Monday morning. Moreover, Black and White Cabs Pty Ltd have stated that they instruct drivers to log off when they have breaks from work of longer than an hour. Mr Kamal's claims that he remained logged on so that the taxi could be tracked by GPS is stolen is not support by Black and White Cabs Pty Ltd. I accept that Mr Kamal may have not worked for the entire time that he was logged on to the computer each weekend however given that he generally held a taxi from Friday afternoon to Monday morning and was logged on over this period I believe that he worked in excess of twenty hours most weekends.

* Mr Kamal also stated that his Pin Number to log onto the computer was stolen by Mr Komang Sutresna. On 29th November 2002 a Komang Sutresna was interviewed in relation to this allegation made by Mr Kamal of Mr Sutresna using Mr Kamal's PIN without his authorisation. Mr Sutresna was asked if he knew a Mohammed Kasem Kamal. He stated that they both had resided together at ... from September 2001 to December 2001. Mr Sutresna was shown a letter from Black and White Cabs stating that Mr Sutresna had used Mr Kamal's PIN number on the 29/9/2002. Mr Sutresna read the letter and said that it is true, he did use Mr Kamal's PIN number on that day. When asked why he did this he said that he didn't have a PIN then. He stated that he would be given a PIN after his retraining by Black and White. When asked how many times he used Mr Kamal's PIN he said only once. When asked how he got Mr Kamal's PIN he said he lost his licence for six months from mid 2001 so Mr Kamal told him his PIN number so he could drive a taxi. He said that except for 29/9/03 he did not use Mr Kamal's PIN because he picked up fares from the ranks without needing to log on. When asked why he used it on 29/9/02. He said that he had recently renewed his taxi driver authorisation but did not have a PIN yet so he used Mr Kamal's. Mr Sutresna showed his new driver authorisation which was issued on 22/8/02. When asked if he was willing to make a Statutory Declaration in regard to the information he provided he said yes. Whilst preparing the application he said that he knows Mr Kamal by the given name of Milton. As Mr Sutresna stated he only used the PIN on the 29/9/02 and a letter from Black and White Cabs confirming this information and that the PIN was changed on the 2/10/2002, with regard to this information the evidence provided shows that Mr Kamal was the driver on all occasions from 15/3/02 to 28/9/2002 (D1, ff.55-56).

17. An application for review was lodged with the Tribunal on 13 January 2003. When lodging the application for review, Mr Kamal stated:

DIMIA decision maker wrongly cancelled my student visa. The decision maker based his decision on hypothesis and did not gave (sic) adequate consideration to the anomolies (sic) of log on times and the fact that my Pin number was misused... (T1, f.30).

18. The delegate made a decision to cancel Mr Kamal's visa pursuant to paragraph 116(1)(b) and subsection 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations because of her finding that Mr Kamal had not complied with condition 8105 of his visa. The delegate found that Mr Kamal had not complied with condition 8105 because records from Black and White Cabs Pty Ltd show that Mr Kamal may have worked in excess of 20 hours per week.

19. The Tribunal therefore considered whether, at the time of the cancellation, it was possible to make a decision concerning non-compliance with condition 8105 as it appears in Item 8015 of Schedule 8 to the Regulations. This requires that the applicant not work in excess of 20 hours a week during any week when the holder's course of study or training is in session.

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

21. Mr Kamal came to Australia to study and was enrolled in a Bachelor of Information Technology degree course at the Central Queensland University. Mr Kamal has submitted he did not work in excess of 20 hours per week. Mr Kamal via his agent has stated that the visa cancellation will ruin his career and bring shame on himself and his family.

22. The information provided by Black and White Cabs Pty Ltd shows that from 15 March 2002 to 22 September 2002, Mr Kamal was repeatedly logged on to the taxi computer for total periods of more than 20 hours per week. It is noted that there are several instances where it appears that Mr Kamal was logged on for more than 14 hours, and up to 36 hours continuously. The Department received information from Black and White Cabs Pty Ltd which confirmed that taxi drivers are automatically logged out after 14 hours of continuous use. This information is not reflected in the Cab company's own driver records.

23. The Black and White Cabs Pty Ltd records appear to be inaccurate and it is questionable whether they can be relied on as the basis for a visa cancellation. From these records, it is not possible to determine the hours Mr Kamal has worked.

24. In the decision, the delegate accepted that Mr Kamal may not have worked for the entire time logged on to the computer but the delegate believed that Mr Kamal worked in excess of 20 hours most weekends. The delegate was not able to determine Mr Kamal's work hours and appears to have assumed that Mr Kamal worked in excess of 20 hours per week.

25. At the hearing before the Tribunal Mr Kamal presented as a credible witness and was definite in his evidence that he had never worked in excess of 20 hours per week. In the absence of more definite evidence to the effect that Mr Kamal had worked in excess of 20 hours per week, the Tribunal decided to give the benefit of the doubts it had to Mr Kamal and, consequently, found that he had in fact not worked in excess of 20 hours per week. It found, therefore that he had not breached condition 8015. That finding led the Tribunal to the conclusion that his visa should not have been cancelled.

26. The Tribunal sets aside the decision under review and substitutes a decision that Mr Kamal's Student (Temporary) (Class TU) visa should not be cancelled.