[visa case] be careful how long you work. Immigration is more stringent than you think.

The case shared this week has something to do with many of Australia`s friends, many of whom will find themselves a part-time job to subsidize their living expenses in Australia. But in the process, many people do not understand the definition of work and how long they can work.

In this case, the applicant holds a student visa and drives a taxi part-time in Australia. But in the course of his work, the Immigration Service thought his working hours were out of range and his visa was cancelled. Therefore, we will use this case to help you better understand the concept of "work" in Australian law and the length of work required for student visas.

No matter what visa they hold, most friends in Australia will want to go out to work or do not leave home to do purchasing agents. For many people holding student visas, accompanying visas or other restrictions on work, especially for those with different visas in Australia, It is crucial to understand whether your visa can work and how long your visa requires you to work.

In this case, the petitioner holds a student visa and a part-time taxi driver. However, during the course of the study, the Immigration Service cancelled the student visa because it was deemed to be working longer than the limit.

The Migration Board found the following reasons:

The applicant`s visa was cancelled under the Immigration Act 1958 (Section 116 (1) (b).

Section 116 (1) provides that: (b) visa holders who fail to comply with visa conditions will be cancelled.

The specific breach of student visa conditions is section 8105 of schedule 8 to the Immigration Ordinance 1994 (the Ordinance). Condition 8105 provides as follows:

In accordance with paragraph (2), the Holder shall not work more than 40 hours in Australia for any two weeks from the beginning of the Holder`s study or training course. [in this article: two weeks means the natural 14 days commencing on Monday.]

But after the visa was cancelled, he said he was very dissatisfied. First of all, the petitioner thinks he is a taxi driver, so he spent a lot of time waiting for his clients, not driving, so he is not in the state of "working". Second, the appellant asked the school to file a testimonial letter to the court proving that he had successfully completed his previous course and had satisfactory academic results, so part-time work did not adversely affect his study.

But in the end, the court dismissed his appeal, and the appellant paid a total of 7200 Australian dollars for the appeal.

When can work be counted as "at work"? This is actually an important issue, especially for student visa holders.

After all, it is well known that although student visas give all students the right to work in Australia, they also limit the number of hours a visa holder can work, that is, during school hours. Visa holders will last no more than 40 hours every two weeks.

So what if the visa holder has a taxi driver`s job and claims to be resting between picking up passengers and driving them to their destination? Is the visa holder actually "working" in his entire "shift" for the taxi company, or is it only when he is actually driving?

In this case, a copy of the records of the appellant`s taxi company shows that visa holders are registered to hold the vehicle every five days every two weeks, about 11 hours a day. But according to plaintiff`s algorithm, he drives only 30 hours at most every two weeks.

The court held that plaintiff`s belief that the period of "work" should not be calculated on the basis of when he registered for work, but rather on the time he actually worked, was wrong.

In its judgment, the court referred to the definition of "work" in Australian law.

Australian law states: "in Australia, work refers to activities that normally attract remuneration to workers."

Therefore, as long as a driver registers a job, his or her waiting for passengers or the time between two groups of passengers is necessary and inextricably linked to "getting paid for driving a taxi". Even if he spends a long time waiting for passengers, even if he is studying or studying, this time is still regarded as "working hours", during which time drivers "mainly engage in taxi driving activities in order to get paid". Similar jobs, such as sales, need to be taken care of.

It is clear from this case that the duration of the person`s registration will be considered "working hours" as long as a person is registered on an actual shift. For example, when students work at night at 7-11, even if they are sitting behind the counter playing with their cell phones, they are considered to be working regardless of whether they really do their job or not.

In addition, individual purchasing agents of this kind of time, but paid for personal activities will also be considered by the Immigration Service as a job. It could also lead to visa cancellations if detected by immigration authorities for longer periods of time or tax problems.

Source reference: http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2017/69.html

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