‘Working while Studying – An Opportunity Fraught with Danger for International Students’

(by A.J. Aristei, independent Barrister)

Minister for Immigration and Multicultural and Indigenous Affairs v Alam [2005] FCAFC 132

Studying in Australia can be a tough bargain for international students; there are a myriad of conditions and restriction that they must comply with to avoid breaching their visa and ‘shattering their dreams’.

One of the most treacherous is the requirement not to work for more than 20 hours a week whilst the selected study course is in session. However, many students do not know what this means and can either unknowingly breach this condition or, even worse, be accused of breaching it when they are entirely innocent. The following case defines what condition 8105 of the Migration Regulations 1994, Schedule 8, actually means and is essential reading.

In this case, Mahabub Alam was a young man from Bangladesh who held a student visa from the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). He arrived in Australia on 17 April 2001. Mr Alam was a very enterprising student, who not only undertook an intensive English language course, but also (in just seven months) completed a high distinction average in a Diploma of Information Technology (Network Engineering). (This course usually takes two full years!!!).

Mr Alam then embarked upon a degree at Central Queensland University in Information Technology. This highly successful student had no problems with either attendance or marks, and it was not until September 2002 that things began to go wrong!

Mr Alam had renewed his visa from time to time as it was required by law. At the time, he had been issued with a Higher Education Sector visa (subclass 573) - valid until 15 March 2004. Mr Alam’s study in Australia was financed by his father (back in Bangladesh), but he also supplemented his income by undertaking casual work.

 Condition 8105 of Mr Alam’s visa stipulated that he was prohibited from working more than 20 hours “during any week when the holder’s course of study or training is in session”. Mr Alam had dutifully complied with this condition throughout his stay in Australia.

On a Friday night in October 2002, Mr Alam was working in a Sydney hotel when the duty manager, having realized that another staff member could not attend work, asked him to work overtime until the hotel closed that night. Dutifully and diligently, Mr Alam complied. The hotel, also in good faith, noted Mr Alam’s extra work on his pay slips and timesheet – he had worked 22.5 hours from Tuesday to Monday. Thinking nothing more of the incident, Mr Alam continued to study hard and achieve well.

Ten weeks later, DIMIA officers came to speak with one of his flatmates. The officers were seemingly abrasive and, without warrant or reason, undertook a search of Mr Alam’s room and belongings. The officers saw the payslips from October and interpreted them to mean that Mr Alam had worked more than 20 hours in a single week.

Mr Alam appealed against this interpretation. DIMIA claimed that a ‘week’ for the purposes of condition 8105 was any consecutive seven day period and therefore the payslips were indicative of Mr Alam’s breach. Mr Alam believed that a “week” for the purposes of the Migration Regulations 1994 meant a university calendar week, beginning from either Sunday or Monday. Upon this interpretation, Mr. Alam had not exceeded his visa conditions and was entitled to remain the holder of a valid student visa. The Migration Review Tribunal agreed with Mr. Alam and, upon appeal, the Federal Court of Australia (Full Court) confirmed this view.

Conclusion

A ‘week’ for the purposes of condition 8105 of the Migration Regulations 1994, Schedule 8, runs from either Sunday or, more likely, Monday depending on the context. This means that a student holding a visa subject to this condition can work up to 20 hours at any time in this period, regardless of the pay period given by the employer, and without concern that these hours will adversely affect their availability early in the following week.

Any student who feels that they have suffered under similar circumstances would do well to consider obtaining legal advice as soon as practicable.