Xiao Zhang is an Australian international student. After a friend`s introduction, after school time started Uber, to earn extra-fast, subsidizing the high cost of life in Australia. Xiao Zhang`s skilful driving and service were highly rated by passengers, and Uber`s business in Australia has been getting better and better over the years, giving Xiao Zhang a lot of single customers. Xiao Zhang made a lot of money during his study through Uber. But not for long, in November 2015, Xiao Zhang was notified by the Immigration Service that he had violated the 20-hour rule on student visas to cancel his student visas.
Job restrictions on student visas
Under section 8105 of the eighth form of the 1994 Immigration Act, student visa holders are not allowed to work more than 40 hours in two weeks under normal class conditions. At the Immigration Board`s request, Uber sent a timetable to the Migration Board showing 15 jobs exceeding the fortnightly 40-hour limit from November 2014 to October 2015. The Immigration Service decided to cancel Xiao Zhang`s visa on the grounds that Xiao Zhang violated 8105 visa regulations.
Appeal to federal court
In November 2015, Xiao Zhang attended an interview with the Immigration Service, acknowledged the authenticity of the information provided by Uber on the working hours, and was cancelled by the Immigration Service. Zhang disobeyed the decision, decided to appeal to the federal court, hoping to change the decision of immigration. The federal court gave Xiao Zhang plenty of time to prepare his appeal.
In a federal court submission, Xiao Zhang claimed that while he used Uber`s App to keep track of his working hours, it did not mean that he was driving passengers during those hours. Just because Xiao Zhang claims to be driving a private car and spent much of his time visiting friends on APP records doesn`t mean it`s a job. In addition, there is a long time in the record that Xiao Zhang is on the way to pick up the guests, which is not counted as working hours; the working hours should only be the time when the guest gets on the bus and gets off the bus. As a result, Xiao Zhang believes that the records provided by Uber can not be counted as their full working hours.
The federal court did not accept Xiao Zhang`s claim. According to records provided by Uber, in nearly a year (from November 2014 to October 2015), Xiao Zhang had 15 weeks of work that was completely over 40 hours: at least 78 hours of work a week. Of these, 11 weeks work more than 100 hours. The federal court believed Xiao Zhang said that driving a private car may not work in private without turning off the APP; however, the situation does not explain the excessive 15-week working hours.
Zhang also claimed that he sometimes forgot to turn off APP;, according to APP, sometimes he worked for 14 to 15 hours in a row; Zhang claims that the average person doesn`t work this long: generally speaking, if you work so long, drivers may get tired out of a car accident. Xiao Zhang claimed he had not had a car accident, so he proved that sometimes he just forgot to turn off APP, and not really worked so long. The federal court did not accept Xiao Zhang`s claim.
Xiao Zhang finally claimed that after he came to Australia, he studied engineer level III certificate, commercial level 4 certificate, management specialty, chef level III certificate. Now I am studying chef level 4 certificate, and decided to study business services and marketing specialties in the future. Xiao Zhang said that he did not miss the course during his study, and that he had completed the tasks assigned by the school on time and quality; in another way, he did not carry out his work for an extended period of time. Xiao Zhang said that he would like to return to China to engage in the career of chef. If, because of the cancellation of the visa by the Immigration Service, he failed to complete his Certificate of Chef level 4 and the following business service and marketing specialties, then after returning home, Chefs do not have very good prospects, may create employment and even economic difficulties. The federal court did not accept Xiao Zhang`s claim.
Lessons from cases
Don`t forget the past, the teacher of the future. Zhang`s case is a wake-up call for part-time students in Australia. As a student, the most important task is to study; if you delay your study because of part-time work, or even cause the student visa to be cancelled because of part-time work, that is to say, it is not worth the gain or loss. Many foreign students studying in Australia have chosen immigration major, hoping that they will be able to obtain permanent resident status through independent skilled migration in the future; If part-time work is too long and the Immigration Service finds it difficult to obtain permanent resident status through independent skilled immigrants, it will be a little bit too bad for the immigration authorities to cancel their student visas, which will lead to difficulties in obtaining permanent residency status through independent skilled immigrants in the future.
One thing to note in the case is that the federal court actually acknowledged that sometimes Uber drivers may not be working entirely when Uber APP records working hours. But in Zhang`s case, he worked more than 78 hours in 15 weeks, of which 11 worked more than 100 hours; his claim simply failed to explain his long working hours. If Xiao Zhang had just a few weeks to work a little more than 40 hours, the outcome of the case might be completely different.
In addition, Xiao Zhang received notice from the Immigration Service that the interview was cancelled in November 2015, and that the appeal lasted until the Federal Court rendered its decision in April 2018; For nearly two and a half years, Xiao Zhang could legally stay in Australia with a bridge visa. As Xiao Zhang said, in order to return home to have better employment prospects, he can complete his level 4 chef`s certificate, business service specialty and marketing specialty in these two years. Australia, in order to protect the fairness of the law, after an appeal by the Federal Court, if the complainant felt that the Federal Court had made a procedural error in law, he could also make an application for intervention by the Minister of Immigration. Sometimes, while waiting for the Minister of Immigration to intervene to make a decision, the complainant can achieve his own purpose (for example, completing his studies in Australia).
(please note that for the interesting and readable nature of the article, the plot of the case character in the article is fictitious; This article is not a formal legal opinion, and the author and the law firm are not liable for any loss resulting from the opinion of the article. If the reader wishes to receive a formal legal opinion, please contact Weber Law firm at 02 8084 8341 to contact the relevant lawyer; for the first time, the client interviewed a lawyer in the Sydney downtown office, free of attorney`s fee.)
