Australian Immigration Daily News

It really is a “time-honoured” tradition for people who are “new migrants” to a Western country to support themselves by driving taxicabs. 

It is equally time-honoured for students to work their way through school by driving cabs, or doing other demanding, socially important jobs.

But is there a risk to one’s visa status from “working too much” or not keeping accurate records of the hours worked?

A recent decision of the Federal Circuit Court, Aziz v Minister for Immigration & Anor (2018) FCCA 952 illustrates that there are risks.  And it does show how important it can be to keep good records.

As will be well-known to readers, student visas typically are subject to a condition, Condition 8105, which provides that the visa holder may not work more than 40 hours per fortnight when her/his course is in session.

What happened in the Aziz case was that the Department obtained records from the Taxi Services Commission in Victoria that provided the registration numbers of each taxi that the visa holder had driven and the date and time of each of his shifts, and the start and end time of each shift.

Unfortunately for the visa holder, these records indicated that there had been 15 fortnights over the course of about a year during which the records had indicated that he had driven far more than 40 hours. In fact, the records suggested that there had been many fortnights during which he had driven the taxi for more than 100 hours.

So how did the visa holder attempt to avoid cancellation of his visa?

His explanation was that he had hired the taxi for a fixed price per week, and that the terms of the rental allowed him to use the taxi for his private use as well as to earn a livelihood.

He also claimed that the records provided by the Taxi Services Commission did not reflect the actual hours that he had worked.  It was his argument that he had not always “logged off” the electronic recordkeeping system that tracked the hours when the taxi was in use, and for that reason the records showed that the taxi had been in use many more hours than he had actually worked.  He also claimed that he often did not log off the tracking system when he was using the taxi for personal use.

He also claimed that he had often not logged off the system after he had finished work for the night, or was visiting with friends between jobs to have dinner or to meet them for coffee.

Overall, it was the applicant’s claim that he had only worked for 2 – 2.5 hours a night during each fortnight.

While the Tribunal did accept that the visa holder’s claim that he had not always logged off the tracking system when he was not working, or was using the taxi for his personal transportation needs, it considered that these practices did not account for the “huge hours” that were recorded in the tracking system.

The other argument that the visa holder attempted to rely on in the proceedings before the Tribunal was that he was only working when he actually had a customer in his cab.

This alternative argument did not find success either.

The Tribunal referred to well-established Australian case law that defines “work” as activity that normally attracts remuneration.  So the Tribunal concluded that in the case of a taxi driver, the period when one is considered to be “working” includes time when the driver is available to pick up passengers, either through calls from the taxi depot, or by picking up passengers on the street or at a taxi rank.

So in the end, it was the electronic tracking system that recorded the hours when the taxi was being used that were fatal, and which the Federal Circuit Court accepted to be adequate “proof:” that the visa holder had worked more than 40 hours per fortnight.

There are several valuable lessons from this case.

The first is that workers should be aware that there may be recordkeeping systems that they are not fully aware of, or perhaps not fully vigilant about, that can record the hours one has worked, and can be relied on as evidence in a visa cancellation case.

Another lesson is that if one is going to try to argue that electronic records do not “accurately record” the hours that a person has worked, it is essential to have good, credible records of the actual hours worked.

In this case, the visa holder was unable to produce pay records showing when he worked. And the Tribunal was not prepared to accept his claim that he did not have any pay records because his customers “always” paid him in cash – the Tribunal did not accept that it was credible that a taxi driver would not at least sometimes be paid either by credit card or by cab charge.

So: here was a case where a visa holder learned the hard way that working “too much”, or at least not having good enough records to show that he hadn’t “worked too much”, can be “expensive”, and can result in the cancellation of a visa and the consequent loss of entitlement to remain lawfully in Australia as a student.