Student visas - when is work not counted as working?
In a recent case of the Federal Circuit Court, the court was asked to examine whether the time in between fares of a taxi driver counted as ‘work’ as defined in Regulation 1.03 of the Migration Regulations.
The applicant was in Australia on a student visa. He was studying for an Advanced Diploma of Business. He first began driving for the taxi company in 2008. Condition 8105 was imposed on his visa. This provided that he must not engage in work in Australia for more than 40 hours a fortnight when his course of study is in session.
The applicant began his shift at around 6pm and continued until 5am. The records showed that he was “logged in” for 11 to 12 hours a day for five days a week. The applicant claimed that he did not work for the whole period but only during the time he was actually driving a fee paying passenger. He claimed that being “logged in” did not equate with work as he would study between fares.
The Tribunal disagreed and held that the applicant was in breach of condition 8105. The Tribunal did not accept that being available for work was not working. It concluded that the time spent between fares was “work” within the definition in Regulation 1.03.
The Federal Circuit Court (Judge Young) concluded that being available for work is not always work within the definition in Regulation 1.03. Judge Young provided the example of a contractor who is available to work throughout the week but willing to undertake actual work for only two days but at variable times. However, a taxi driver is not a contractor. According to Judge Young, a taxi driver begins their work once he or she begins their driving shift as a taxi driver. Time waiting in between a fare is a “necessary and inextricable aspect of driving a taxi”. He concluded that any time waiting for a fare is still driving for remuneration and still comes under the definition of work in Regulation 1.03. The applicant's challenge was therefore dismissed.
The case is available at the following link – Verma v Minister for Immigration & Anor  FCCA 69 (18 January 2017).