Kaur v Minister for Immigration and Border Protection
Year of Decision: 2016
Jurisdiction: federal_court
Key Words:
Student Visa Cancellation at airport


The appellant is a 21 year old citizen of India who was granted a student visa on 27 May 2014. Judge Jones found that the appellant had been enrolled in a course of study at the commencement of 2016 for a diploma of hospitality which had a duration of one year, but that the appellant had terminated her enrolment in 2016 and had worked during August and September 2016 in excess of 40 hours a fortnight. The course in which she ought to have been enrolled was in session during the period in which she worked in excess of 40 hours a fortnight but she was in fact not enrolled in the course at that time. The appellant may, therefore, have been in breach of condition 8202(2)(a) because she was not enrolled in a course but the delegate had based the decision to cancel the visa, and the Minister had contended in the Federal Circuit Court and on appeal, on being in breach of condition 8105.

You have arrived at Melbourne Airport as the holder of a Subclass 573 Student visa. Your Subclass 573 visa is subject to Condition 8105 which states 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. Details of Condition 8105 can be found at the reverse of page 4 of this Form 1111: Notice of intention to consider cancellation.

On your Incoming Passenger Card (IPC) you have indicated that your main reason for coming to Australia today is ‘Education.’ During an interview with the Department of Immigration and Border Protection (DIBP) at Melbourne Airport, you have admitted to working from 12.30 pm to 10 pm five days per week during the months of August and September of this year. Evidence located in your phone confirmed you worked in excess of 40 hours per fortnight during this period. Based on the above information, there appears to be a ground for cancelling your Subclass 573 visa because you have not complied with condition 8105 of your visa because you have engaged in work in Australia for more than 40 hours a fortnight and also because you worked whilst not holding a certificate of enrolment and were· not enrolled in any further course of study. These activities are not within the scope of activities allowed under condition 8105. The ground is described under S116(1)(b) on the reverse of page 1 of this document.


The appeal be allowed. The orders of the Federal Circuit Court made on 16 December 2016 be set aside and in place of those orders the following orders be made: (a) The decision of the respondent’s delegate dated 11 December 2016 be set aside; and (b) The respondent pay the appellant’s costs of the proceeding and of the appeal.

The purpose of 8105

The specific purpose of the statutory scheme sought to be achieved by condition 8105 is the attendance to educational requirements in which a student visa holder is enrolled rather than to prevent work when not enrolled. For present purposes it is not necessary to determine a related question of whether “in session” referred not to the overall course period but more specifically to that period within the course period when classes are conducted or course work was required to be undertaken.

The history of the case

This appeal comes to the Court as an expedited hearing. The appellant is in custody in anticipation of being deported to India following the cancellation of her student visa on 11 December 2016. On that day she returned to Melbourne after a short period of time in India and was questioned by officers of the Department of Immigration and Border Protection upon her arrival. At the time she held a Student (Class TU) (Subclass 573) visa which was cancelled later that day after departmental officers questioned her. The following day she filed an application challenging the cancellation of her visa and sought interlocutory orders preventing her removal from Australia. Interlocutory orders were made and an expedited hearing was given by the Federal Circuit Court. On 16 December 2016 Judge Jones dismissed the appellant’s application with costs. The appeal from her Honour’s decision to this Court was commenced on 19 December 2016.

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Case Name:Kaur v Minister for Immigration and Border Protection
Case No:FCA 1581
Case Link:http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2016/1581.html
Key Words:8105
Summary:Check to see if works
Legislation Type:migration_regulation_1994
Legislation No:check to see if works
Intrepretation:check to see if works
Cate Note:check to see if works
Link:check to see if works
Summary:check to see if works
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