Wednesday, 31st MayIf you are on a Student Visa, be careful not to engage in work for more than 40 hours per fortnight, or you could have it cancelled.

Verma v Minister for Immigration & Anor [2017] FCCA 69 (18 January 2017)

REASONS FOR JUDGMENT

• This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) to affirm a decision of the Minister’s delegate to cancel the applicant’s student visa.
• The applicant’s visa was cancelled pursuant to section 116(1)(b) of the Migration Act 1958 (Cth). Section 116 (1) relevantly provides:

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

(a) ...

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

The delegate concluded that the applicant was in breach of a condition of his student visa being condition 8105 of Schedule 8 of the Migration Regulations 1994 (the Regulations). Condition 8105 relevant provides as follows:

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.

...

In this clause:

fortnight means the period of 14 days commencing on Monday.

• The Tribunal reached the same conclusion as the delegate and affirmed the decision for the same reasons.
• The applicant did not expressly identify any ground of jurisdictional error in his application but he alleged that the documentation taken into account by the delegate and the Tribunal did not provide an accurate record of his hours worked. The delegate had obtained records from the applicant’s employer, a taxi company, showing the log in and log off times of the applicant’s driving shifts. These showed that the applicant spent about 11 hours on average in each shift over about five days a week in the period October 2013 and July 2015. The applicant submitted that he did not “work” for the whole period of his shift but only during the period that he was actually engaged in driving a fare paying passenger.
• At the hearing of his application to this court the applicant sought to rely on an affidavit that annexed other records which purported to show the actual times of metered fares for the period 13 July 2015 to 13 September 2015. The applicant did not provide any breakdown of the actual times but I calculated that the actual times for metered fares for the fortnight from Monday 13 July 2015 to Sunday 26 July 2015 (the first fortnight appearing in the records provided by the applicant) was 1,428 minutes or 23.8 hours. I consider below whether this affidavit ought to be admitted.
• In substance, the applicant alleged that the Tribunal misconstrued the meaning of the word “work” in condition 8105 and that it committed jurisdictional error in concluding that he breached the condition.

Background and Tribunal’s reasons

• The applicant is 28 years old. He first came to Australia in 2008 and has held various student visas from then until his student visa was cancelled on 23 December 2015. While in Australia he completed a Diploma of Community Welfare, a Diploma of Management and an Advanced Diploma of Management. At the time of the cancellation of his visa he was studying for an Advanced Diploma of Business.
• The applicant told the Tribunal that he first began driving for the taxi company in 2008 and has had a similar driving pattern since then. The records show that the applicant generally began his shift at around 6 pm and continued until about 5am. It appears from the records that he generally did not drive on Monday or sometimes Tuesday.
• He provided a letter to the Tribunal from his course provider stating that he had not had significant breaks in his studies and had successfully completed his previous courses. It stated that he had a satisfactory academic record.
• The applicant also told the Tribunal that he was employed at an Indian restaurant and his employer had nominated him for a subclass 187 visa. He said he did voluntary and paid work in the restaurant for 5 to 10 hours a week.
• The Tribunal noted that both the terms “fortnight” and “work” are defined in the Regulations. The definition of the first has been referred to above. Regulation 1.03 says that “work means an activity that, in Australia, normally attracts remuneration”.
• The Tribunal said that whether an activity is to be regarded as “work” is a matter of evaluation and degree. Activities of a domestic or social nature should not be regarded as work. It referred to Braun v MILGEA [1991] FCA 611; (1991) 33 FCR 152 at 156. It said the test to be applied is an objective one: Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258 at 268. It said it was necessary to go 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 the case, assist in determining whether a particular activity undertaken voluntarily is one that normally attracts remuneration: Dib v MIMA [1998] FCA 415; (1998) 82 FCR 489 at 495 - 496.
• The Tribunal referred to the records referred to above showing log in and log off times at the beginning and end of each shift and concluded that the applicant was ‘“logged in” for 11 to 12 hours a day for five days a week”. It found “This equates to more than 40 hours per fortnight in periods his course of study was in session”.
• The Tribunal noted the applicant’s claim that being “logged in” did not equate to working as he would study between taking fares. The Tribunal said that it did “not accept that being available for work is not working”. I interpret this as a conclusion by the Tribunal that, even if the applicant’s assertion that he spent significant time studying (or waiting) between fares was correct, that the time spent by a taxi driver, such as the applicant, waiting for a paying fare was “work” within the meaning of the definition in Regulation 1.03.
• The Tribunal went on to note that the applicant did not provide any records to substantiate his claim that he did not work for all of that period he was “logged in” with his taxi employment. The Tribunal also referred to the applicant’s work in the Indian restaurant of 5 to 10 hours a week in addition to his work as a taxi driver and concluded that this took him “considerably in excess of the 40 hours per fortnight in periods his course of study was in session”. The Tribunal concluded that the applicant was in breach of condition 8105 of his visa.
• The Tribunal then considered whether, having found the applicant had not complied with a condition of the visa, it ought to exercise the discretion to cancel the visa. The Tribunal considered the applicant’s family circumstances, his reluctance to return to India and his hope to obtain another type of visa with the sponsorship of his employer at the Indian restaurant. The Tribunal also took into account its conclusion that the admitted work pattern of the applicant meant that he had been in breach of the condition for most of the eight years he had been in Australia. It declined to exercise its discretion not to cancel the visa. The applicant does not challenge this aspect of the Tribunal’s decision.

Consideration

• The Minister submits that the applicant’s stated ground of jurisdictional error is, at its highest, a statement of dissatisfaction with the findings of the Tribunal and merely invites the court to engage in impermissible merits review. The Minister went on to submit that, in any event, the Tribunal considered the relevant legal authorities and correctly interpreted the applicant’s activity, including waiting for a paying fare, as “work”.
• I do not agree that the first part of the Minister’s submission does justice to the applicant’s case. The applicant says that his activity, waiting for a fare, was not “work” within the meaning of the definition. He says, in substance, that the Tribunal made a legal error amounting to jurisdictional error. A legal error may amount to a constructive failure to exercise jurisdiction when the decision-maker:

misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and ...appl[ies] ‘a wrong and inadmissible test’ ... or ‘misconceive[s his or her] duty,’ ... or ‘[fails] to apply [himself or herself” to the question which the law prescribes’ ... or ‘... misunderstand[s] the nature of the opinion which [he or she] is to form’

Re Minister for Immigration and Multicultural affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [80] per Gaudron J, adapting a statement of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [1947] NSWStRp 24; (1947) 47 SR (NSW) 416 at 420.

• The authorities referred to by the Tribunal are of limited assistance in the context of this case because each of them is concerned with the question of whether voluntary or unpaid work, for example “work experience”, is “work” within the definition. However, each of the cases emphasises that context, including the motivation of the participant, is important.
• If the Tribunal is to be understood as saying that being available for work is always “work” within the definition then, in my view, that states the matter too widely and is inconsistent with the definition. It is possible to imagine, for example, a contractor who is available for work throughout the week but willing to undertake actual work for, say, only two days but at variable times. Many people, for example students and persons with young families, would work on such a basis and juggle their work around their other commitments. I would not consider such a person as undertaking work for more than two days in each week.
• If the Tribunal, on the other hand, is to be understood as saying that a taxi driver waiting for a fare is doing “work” even though not actually driving a paying passenger that is a different matter. In my view, once he or she begins their driving shift, the time a taxi driver spends waiting for a fare or waiting between fares is a necessary and inextricable aspect of driving a taxi for remuneration. It may be that the driver is able to read a book or even study during this time but the periods are necessarily irregular and of unpredictable duration. The driver, although waiting, is still primarily engaged in the activity of taxi driving for remuneration.
• I am not satisfied that the Tribunal has applied the wrong test and I am satisfied that the periods that the applicant spent waiting for or between fares as a taxi driver was “work” within the definition.
• Notwithstanding that the evidence in the applicant’s affidavit was available but not adduced before the Tribunal I propose to receive the affidavit into evidence. It demonstrates the factual context in which the definition is to be interpreted and shows that the question raised by the applicant is not simply moot. The application is otherwise dismissed and the applicant is ordered to pay the second respondent’s costs.