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1004439 [2010] MRTA  2435  (16 November 2010)

Last Updated: 24 November 2010

1004439  [2010] MRTA 2435  (16 November 2010)


DECISION RECORD

APPLICANT: Mr Rishi Mehta

MRT CASE NUMBER: 1004439

DIAC REFERENCE(S): CLF2008/103833

TRIBUNAL MEMBER: Richard Derewlany

DATE: 16 November 2010

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.


STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to cancel the applicant's Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).
  2. The Department of Immigration and Citizenship granted the applicant his Subclass 572 Vocational Education and Training Sector visa on 3 July 2008 The applicant was notified that a delegate of the Minister was considering cancelling his Subclass 572 visa and the decision to cancel the visa was made on 26 May 2010. The applicant was notified of the decision and his review rights by letter dated 26 May 2010.
  3. The delegate cancelled the applicant’s Subclass 572 visa under s.116 on the basis that the applicant did not comply with condition 8105 of his visa.
  4. The applicant applied to the Tribunal on 2 June 2010 for review of the delegate’s decision.
  5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(3) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. Section 116(1)(b) gives the Minister power to cancel a visa where the visa holder has not complied with a condition of the visa. It relevantly states:

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

...

(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.

  1. Regulation 2.43(2) of the Migration Regulations 1994 (the Regulations) sets out the prescribed circumstances referred to in s.116(3), under which the Minister must cancel a visa In the case of a Student (Temporary) (Class TU) visa, these circumstances include ‘that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 (if the condition applies to the visa)’: r.2.43(2)(b)(i)
  2. The effect of s.116(3) and r.2.43(2)(b)(i) is that, if the Tribunal is satisfied that the visa holder has not complied with condition 8105, it must cancel the visa.
  3. The Tribunal does not have any discretion to set aside a visa cancellation where there has been a breach of condition 8105. Once non-compliance with the condition is established, the Tribunal is bound, by the operation of s.116(3), to affirm the visa cancellation: MIMIA v Alam [2005] FCAFC 132; (2005) 145 FCR 345, at [13].
  4. In the present case, the delegate in cancelling the visa was satisfied that the visa holder did not comply with condition 8105.

Condition 8105

  1. Condition 8105 is found at item 8105 in Schedule 8 to the Regulations, and places restrictions on a visa holder’s capacity to engage in work. The relevant version of a condition that must be considered when determining whether there has been non-compliance, is the version that was applicable at the time of visa grant: Pradhan v MIMA [1999] FCA 1240; (1999) 94 FCR 91 at [19].
  2. The version of condition 8105 which applied on 3 July 2008, being the date that the applicant’s visa was granted states as follows:
    1. (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 20 hours a week during any week when the holder’s course of study or training is in session.

(2) Subclause (1) does not apply to 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

(3) In this clause:

week means the period of 7 days commencing on a Monday..

“Work”

  1. Regulation 1.03 of the Regulations defines work as ‘an activity that, in Australia, normally attracts remuneration’. The definition provided in r.1.03 may include an activity for which an individual visa holder is not remunerated. It is sufficient that it ‘be an activity that normally attracts remuneration’: Braun v MILGEA [1991] FCA 611; (1991) 33 FCR 152 at 156 (which considered the definition in then r.2, in which work was also defined ‘as an activity that, in Australia, normally attracts remuneration’).
  2. 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 assessment of whether an activity should be regarded as work is a ‘matter of evaluation and degree’: at 156.
  3. In Kim v Witton [1995] FCA 1508; (1995) 59 FCR 258, Sackville J stated (at 268):
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.
  1. The test 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] FCA 415; (1998) 82 FCR 489, at 495-496.

“Week”

  1. If the visa holder has engaged in work within the meaning of r.1.03, condition 8105 requires that it not be for more than 20 hours a week ‘during any week when the holder’s course of study or training is in session’. ‘Week’ in Condition 8105 means the period of 7 days commencing on a Monday: 8105(3).
  2. However, the 20 hours a week limitation in condition 8105(1) does not apply to 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 (CRICOS): 8105(2).

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the applicant.
  2. The Department issued the applicant with a Notice of Intention to consider Cancellation (NOICC) on 26 May 2010. In the NOICC the Department stated it had information that the applicant had a specified driver number with Black and White Taxis in Queensland, and that driver logs for that number for the period May 2009 to May 2010 indicated the applicant had been working in excess of 20 hours per week in the period, and that this indicated he had breached condition 8105 of his visa.
  3. At the Departmental interview held on 26 May 2010 it was recorded that the applicant acknowledged that he had breached a condition of his student visa and was aware that he had been working more than 20 hours per week. He advised that he had encountered financial problems because funds that his father would normally have provided for his studies were needed to cover medical expenses for the applicant’s grandfather. He stated he was unable to pay course fees in February 2010 because funds were not forthcoming from India He stated that if he had not worked he would not be able to pay the course fees. The applicant is also reported to have advised that there was a cultural expectation that he should provide some financial support to family in India.
  4. The delegate found that the applicant had breached condition 8105 of his visa and therefore cancelled the visa pursuant to s.116 and r.2.43(2)(b).
  5. The applicant appeared before the Tribunal on 2 September 2010 to give evidence and present arguments. The Tribunal had some discussion with the applicant about whether he was requesting the Tribunal to take evidence from the other person present as a witness, or whether he wished this person to be present during the hearing to assist him. The applicant decided that the other person, Mr Sona Singh Bhela, would be present during the hearing to assist him. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
  6. The Tribunal explained the issue in the review with reference to the requirements of condition 8105. The Tribunal also explained that if it found the applicant had breached condition 8105, then cancellation of the visa was mandatory.
  7. The Tribunal referred to the records from Black and White taxis obtained by the Department and asked about the record of log in and log off times. The applicant stated that when he logs in he has to provide his drivers licence number, and also does this when he logs off. He stated that logging in did not mean he had a passenger, and that often a lot of time was spent ‘sitting around’ and not doing anything. The Tribunal asked whether the applicant was however available for and waiting for passengers during the period. He stated he was but he was not working for the full 12 hours of the shift. The Tribunal raised the issue that the records appeared to show he was officially recorded as being available to take passengers during this time. The applicant stated that he decides about passengers and he might take more on one occasion and less on another occasion. The Tribunal indicated its view that taxi driver work was a combination of actually conveying passengers and waiting to take passengers. The applicant stated that sometimes he did not make himself available, for example he might go home for a rest.
  8. The Tribunal indicated it appeared the log on/log off records were a crucial indicator of when he was working. The applicant stated the taxi company did not pay a direct wage. The company authorises the drivers to use their taxis. He also stated that during a 12 hour shift he might have to do other things. The Tribunal indicated it might conclude that the period of time he was logged on and available to do the activity of conveying passengers was work, as it was an activity that in Australia normally attracted remuneration. The applicant raised again the issue that he was not payed for the period he was logged on, and he could decline passengers. The Tribunal indicated this appeared to be characteristic of the activity of driving a taxi and the Tribunal may conclude this did not establish he was not working for the whole period he was logged on
  9. The applicant stated that although he was logged on for a shift of 12 hours, during this time other matters might need attention, for example, technical problems might need fixing. Also the company used GPS to track drivers and he also used GPS to alert the company if he experienced problems. He stated there was no fixed salary and the number of passengers or fares he might have varies. He estimated that he worked less than 20 hours per week in the periods set out in the records. The Tribunal indicated that work was not defined by only the times for which a person was actually paid. The applicant raised again the issue that he was not being paid for the whole time he was logged on, only for the fares he had. He gave an example of a self employed contractor who had to be ready or available for a job over a longer period but might only get paid for a couple of hours of actual work. He stated that sometimes he would wait ‘all day’ and not get paid
  10. The Tribunal referred to the definition of work in the regulations, and indicated its view that even if the applicant’s actual payment depended on the fares he had, he was working for the period he was logged on to be available to take passengers. The applicant stated he was using the ‘common sense’ approach to the notion of work; he might have 10 fares for 10 minutes and this might total an hour or so, but he might spend the rest of the time waiting.
  11. The Tribunal indicated the records appeared to show the weeks were during semester (course study ) times, but if the applicant had evidence this was not the case he should provide it. The applicant stated he would check the timetable. The Tribunal also explained that it was using a sample of a number of weeks, and that this sample indicated the applicant was working more than 20 hours per week.
  12. The Tribunal asked what percentage of fares went to the company for providing the taxi, and the applicant stated it was 50%, with other expenses such as fuel paid by the owner.
  13. The Tribunal asked for clarification of the course the applicant was studying in 2009 and up to May 2010, and he stated it was both courses (Certificate IV and Diploma) simultaneously.
  14. The Tribunal indicated that the only exemption to the work limitation was for work required for the course, and gave the example of employment required as part of practical experience requirements for a qualification in Cookery. The applicant appeared uncertain so the Tribunal explained the issue again and indicated it was raising it as there seemed to be no indication that the applicant’s taxi driving was part of the requirements for his course of study. The applicant did not raise any matter in relation to this.
  15. The applicant told the Tribunal he wished to summarise his evidence and the issues he wanted to raise as follows. He felt he had not worked for more than 20 hours in any week as he was not paid for all the hours of his shift. He was not paid a salary and he was like being self-employed; his payments were based on the number of passengers/fares. He was a ‘regular’ student while doing his course and was up to date with accounts and assessments. He had not failed any exams. He has provided a letter from his Principal testifying that he was a good student and focused in his studies. He has submitted results for subjects he has done. He was asking the Tribunal to give him a ‘chance’ to start a career after completing his studies. At present he did not have a visa for work and so could not accept job offers. He wanted to continue his studies and his college was willing to offer admission into another course; he has submitted a letter of offer from the college. He has also provided references from employers and the community. At present he could not continue his studies and career. He had a submission about his background in India and his general situation in Australia. The Tribunal noted this but explained that the only issue in the review was whether he had breached condition 8105. The applicant reiterated his view that he had not worked for more than 20 hours per week, and the records of log in and log off times did not indicate the hours he worked; it was the same system used for all taxi drivers. He hoped to have an opportunity to continue his studies and career in Australia.
  16. Evidence submitted by the applicant includes:
  17. On 2 September 2010 the applicant also submitted a written submission that the log on and log off times did not indicate he had been working for the period; that he often waited for fares and took breaks in this period; and that he was not paid for the time he was logged on. He reiterated submissions made to the Tribunal at the hearing regarding his past studies, his future plans, and the problems caused in respect of career and study plans by not having a visa. He also stated that his parents would depend on him for support in the future.
  18. On 9 September 2010 the Tribunal wrote to the applicant inviting him to comment on information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The information included details of log in periods at Black and White Taxis over a sample of 5 weeks in the period May 2009 to March 2010, and an outline of the information the applicant is recorded to have given at the Departmental interview on 26 may 2010.
  19. On 22 September 2010 the Tribunal received a request for an extension of time to provide comments /response. The Tribunal considered the request but did not grant the extension. The Tribunal advised the applicant of the decision on 23 September 2010. The applicant contacted the Tribunal a number of times about the issue of the extension. The Tribunal confirmed to the applicant that an extension had not been granted.
  20. On 27 September 2010 the Tribunal received a copy of course dates at Holmes College for 2008-2010. On 29 September 2010 the applicant made further submissions about his request for an extension of time to provide comments/response. On this date a Tribunal officer spoke with the applicant and clarified that his request for an extension of time had not been granted, as advised in the Tribunal’s letter dated 23 September 2010.
  21. On 1 October 2010 the Tribunal received a copy of Black and White Taxis ‘general conditions’ applying to taxi drivers, provided by the Fleet Services Manager and dated 29 September 2010.
  22. On 11 October 2010 the Tribunal received a further submission from the applicant in which he stated he was nervous at the Departmental interview and felt ‘coerced’ in responding to the questions and may have misunderstood and interpreted things wrongly. He reiterated his previous claim that he did not consider he was working for the whole time he was logged on at Black and White Taxis, and considered his actual work would have averaged 2 hours per shift, and he was earning payment only for the actual time he had passengers. He stated he would not have worked as a taxi driver if he were aware the log on period might be considered as work. He referred to his college timetable indicating semester breaks and also stated he had other shorter breaks as well. He stated he had not missed his classes during weeks that he worked. He stated he felt compelled to agree with a statement made by the delegate that there was a cultural expectation to support his family. He also provided a letter from Mr Sona Singh Bela (who was the person assisting the applicant at the Tribunal hearing) of Cairns Sunshine Tower Hotel indicating the hotel would be willing to sponsor the applicant for employment.
  23. On 13 October 2010 the Tribunal received originals or hard copies of the documents the applicant had previously submitted to the Tribunal.

FINDINGS AND REASONS

  1. The Tribunal must determine whether the ground for cancellation under s.116(1) identified by the delegate has been made out.
  2. The onus of establishing the facts which may lead to cancellation is on the Minister or, on review, the Tribunal. Although the visa holder must be invited to show that the ground for cancellation does not exist, this does not place an onus on the visa holder to rebut the possible ground of cancellation identified: Zhao v MIMIA [2000] FCA 1235 at [25] and [32].
  3. The applicant’s visa was cancelled on the basis of a failure to comply with a condition of the visa (s.116(1)(b)). The relevant condition identified by the delegate was 8105. The delegate found that the applicant had not complied with condition 8105 because he had worked for more than 20 hours per week, over a number of weeks, as a taxi driver with Black and White Taxis during the period May 2009 to May 2010.
  4. The Tribunal notes in this case that the applicant had requested an extension of time to comment on or respond to the information put under s.359A of the Act in the Tribunal’s letter dated 9 September 2010. The comments/response were due by 27 September 2010. The Tribunal considered the applicant’s request but decided not to grant an extension of time. The Tribunal has however taken into account all the additional information and documents provided by the applicant after this date up to the Tribunal finalising its decision.

Whether there was non-compliance with the visa condition

Condition 8105

  1. The Tribunal finds that condition 8105 was a condition of the applicant’s visa. For the following reasons, the Tribunal is satisfied that the applicant has not complied with that condition.
  2. The Tribunal has first considered whether the applicant engaged in work, as defined in r.1.03, in Australia. The evidence indicates that the applicant was registered or listed with Black and White Taxis as an affiliated taxi driver, under a specified taxi driver number, for the period from 1 December 2008 to May 2010 The general conditions document provided by the Fleet Services Manager of Black and White Taxis set out details of the agreement between the taxi driver (the bailee) and the taxi owner or operator (the bailor). This document indicates that as a general rule the operator offers a taxi for hire to the driver for pre-determined shifts. It states there is no set hourly rate, and the taxi driver remains self employed, with the operator paying running costs and the taxi driver paying 50% of the shift takings as the ‘hiring fee’. The taxi driver is offered fares on the basis of a booking service or acceptance of ‘street hails’, and drivers may accept or decline such work as they see fit. The conditions also indicate that a driver should practise fatigue management, including taking short breaks for rest and other personal requirements.
  3. The Tribunal finds that the applicant has an agreement with the taxi operator, in this case Black and White Taxis, whereby the operator provides him with a taxi for hire for a specified period, in order that the applicant may seek and accept paying passengers and thereby earn income. The Tribunal finds the applicant is motivated essentially by economic or commercial considerations in entering into the agreement with the operator, that is, the nature and purpose of obtaining or ‘hiring’ the taxi for a specified period is so that he can earn an income from taking fares or fare paying passengers. The Tribunal finds that the activity of taking charge of the taxi offered by the taxi operator for a specified shift, and thereby being available and having the means to take fares, is an activity that in Australia normally attracts remuneration. The Tribunal thus finds that this is work as defined in r.1.03.
  4. The Tribunal has considered the applicant’s submissions that any given shift involves periods when he is waiting for passengers, and also includes times he is not taking passengers because of taking rests or attending to other matters. The applicant has also submitted that he is only paid on the basis of actual fares and thus the whole period of any given shift, as delineated by the log on and log off times, should not be considered as work. The Tribunal accepts that the applicant’s shift may involve breaks, and periods when he is waiting for passengers, but considers this is a normal or standard characteristic of his situation whereby he ‘hires’ a taxi from the operator in order to seek and take fares. The Tribunal also accepts that the applicant receives payment only on the basis of actual fares taken, and that his situation may be likened to that of a self-employed person. However the definition of work does not require actual remuneration, but rather a consideration of whether an activity normally attracts remuneration. The Tribunal considers the overall activity of hiring or taking charge of a taxi for a specified period and thereby being available to and having the means to take passengers, is the activity which attracts remuneration and therefore is work.
  5. The Tribunal finds that the log on and log off records of Black and White Taxis establish the period during which the applicant takes charge of the taxi and thus is able to and available to take fares, even if that period involves breaks or the agreement with the operator allows him to decline fares. The Tribunal thus finds that the log on and log off records of Black and White Taxis establish the period during which the applicant was working.
  6. In the hearing and also in its s.359A letter, the Tribunal referred to the complete log on and log off records from Black and White Taxis for the applicant’s taxi driver number, and also to a sample of 5 different weekly periods in the period May 2009 to March 2010. The Tribunal has taken into account the evidence the applicant provided of College breaks during 2009 and 2010. The Tribunal is satisfied that the 5 weekly periods identified in the Tribunal’s sample occurred while the applicant’s course of study was in session.
  7. The Tribunal finds that in at least those 5 weekly periods, the applicant worked for more than 20 hours. Specifically, the Tribunal finds he worked while his course was in session for at least 47 hours in the week commencing 4 May 2009, 30 hours in the week commencing 25 May 2009, 55 hours in the week commencing 5 October 2009, 49 hours in the week commencing 9 November 2009, and 50 hours in the week commencing 1 March 2010.
  8. Further, there is no evidence before the Tribunal which indicates that the 20 hour a week work requirement does not apply in the applicant’s case by virtue of condition 8105(2); that is, it was 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.
  9. The Tribunal has taken into account the other evidence provided by the applicant regarding his family situation, his overall study and career plans, and other matters including his character references and evidence that he has been a successful student. However the Tribunal is not satisfied that the other evidence establishes that the applicant was not working for more than 20 hours per week during any week when his course of study was in session.
  10. Having regard to all the evidence the Tribunal is satisfied that the applicant has not complied with condition 8105 of the visa. Pursuant to s.116(3) and r.2.43(2)(b)(i) therefore, the applicant’s visa must be cancelled.

CONCLUSIONS

  1. For the reasons given above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists and such ground involves circumstances that require cancellation of the visa under s.116(3).

DECISION

  1. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Richard Derewlany
Member

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