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7-Eleven Indian student worker allegations: grave risk of visa cancellation


Unless Federal Government agrees to an amnesty

9 September 2015. Samantha Fitzsimons, immigration lawyer

Last week’s ABC Four Corners’ programme on the conditions under which international students were allegedly working within the 7-Eleven franchise across Australia emphasises the vulnerable position many migrant workers – not least overseas students – face.

Most overseas students who are resident in Australia as the holder of a student visa have a condition imposed on their visa which restricts the number of hours they can work to 40 per fortnight whilst their course is in session. This condition applies regardless of the pay that the student receives for engaging in the employment because the definition of “work” in the Migration Regulations is very broadly defined as: “an activity that, in Australia, normally attracts remuneration.”

If the allegations aired in the media over the last week are true and that these students have been forced to work more than 40 hours per fortnight, these students may now face the prospect of their visas being cancelled for breaching the condition.  This is regardless of the allegation that their rates of pay (below the minimum wage) meant they needed to work many excess hours just to earn enough to pay their living expenses.

As part of the student visa application process, the Department of Immigration undertakes an assessment of the financial situation of international students and their ability to cover the costs of living in Australia, together with their tuition fees for the term of their studies in Australia. Student visa applicants are not advised either prior to or immediately following their student visa grant, regarding their rights under Australian employment and industrial relations law.

The Department of Immigration may well take the view that the international students employed by 7-Eleven, by virtue of agreeing to work more than 40 hours per fortnight regardless of their rate of pay, are in breach of their visa condition. Such a view then triggers the start of a visa cancellation process.

Section 116 of the Migration Act gives the Department of Immigration and the Minister the power to cancel a visa if a visa holder has breached for a condition attached to their visa. This power to cancel is discretionary in the circumstances of breach of the work limitation condition.

Any students facing discretionary cancellation for breach of a visa condition will have to argue their case with the Department as to why their visas should not be cancelled. Doing so is just another stress that these students have to cope with, in addition to the stress they are already no doubt under from the 7-Eleven allegations aired last week.

The student must provide sufficient evidence to the Department that the reasons not to cancel their visa outweigh the reasons to cancel.  They may for example need to provide evidence of their genuine intention to study for the duration of their course, and indeed their commitment to their studies since their arrival in Australia.

Other issues that the Department may consider when deciding whether to cancel a student’s visa under section 116 include:

  • the purpose of the visa holder’s travel to and stay in Australia;
  • the extent to which the visa holder has otherwise complied with visa conditions now and on previous occasions;
  • the degree of hardship that may be caused to the visa holder and any family members if the visa is cancelled (including financial, psychological and emotional hardship);
  • the circumstances in which the ground for cancellation arose (for example, were there any extenuating circumstances beyond the visa holder’s control that led to the ground/s for cancellation existing); and
  • the visa holder’s past and present behaviour towards the Department.

 There is no one legal solution that can be offered as each case will be assessed on its own merits.

 If a student’s visa is cancelled by the Department they will lose their rights to both work and study and they must, to remain in Australia lawfully, apply for Bridging visa E.  If their student visa is cancelled, they can appeal to the Migration division of the Administrative Appeals Tribunal (“AAT”) and ask for a revocation of the decision to cancel their visa, a lengthy and stressful process. If an appeal at the AAT is unsuccessful, then the former student visa holder has very limited options to remain in Australia and would most likely have to depart Australia.

 If the former student visa holder then departs Australia as a Bridging visa E holder, they are prevented from applying for a temporary visa to come back to Australia for a period of three years, unless they can convince the Department to waive the three year ban.  The waiver threshold is, in many cases, difficult to overcome.

These are just some of the immigration issues facing international students who have been employed by the 7-Eleven franchisees who have allegedly worked in excess of the permitted 40 hours per fortnight.  There will no doubt be a myriad of other complicated legal issues arising from the investigation into 7-Eleven work practices, to be headed by the former ACCC boss, Allan Fels.

The advice in this blog is general in nature and should not be considered specific legal advice.  If you have an immigration issue or query, you should seek independent legal advice that takes into account your own specific circumstances.

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