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.