1421072 (Migration)

[2015] AATA 3034

1421072 (Migration) [2015] AATA 3034 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Fiona Louise Chadwick

CASE NUMBER:  1421072

DIBP REFERENCE(S):  BCC2014/2770096

MEMBER:Amanda Goodier

DATE:1 July 2015

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 01 July 2015 at 11:28am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 December 2014 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 20 October 2014. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.417.211.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221(5) as the delegate was not satisfied the applicant had completed 3 months specified work in regional Australia. A copy of the delegate’s decision was attached to the application for review.

4. On 27 May 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 1 July 2015. On 29 June 2015 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant carried out the requisite specified work in regional Australia?

7. Clause 417.211 requires, amongst other things, that at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111. The applicable instrument is IMMI 08/048.

8. In this case the applicant claims to have undertaken specified work for the period 17 July to 13 September 2014 in the postcode area 6336 and from 15 September to 19 October 2014 in the postcode area 6361.  She claims the work done was in the Industry- Agriculture, Forestry and Fishing.

9. The applicant’s Attachment 2 – job description indicates for DJ & DM Hooper the applicant was employed 6 to 7 days a week on a casual basis working 8 to 10 hours a day.  She claims her duties were farm duties, fencing, rock picking, spreading fertilizer, driving tractors and other machinery.  She states that at first she was volunteering then she was paid for the work.  She stayed at the Ongerup pub during this time.  Her bank statements indicate she received regular salary payments from the Ongerup Hotel during this time.

10. The applicant also indicates that for the period 15 September 2014 to current she was employed 6 to 7 days a week on a casual basis working 8 to 10 hours a day.  She claims her duties were farm work – sheep and she was paid for this work.   

11. The applicant provided an Attachment 3 – Bank Authority and copies of her NAB bank statements for the period 5 July to 5 September 2014 and 29 September to 22 October 2014. 

12. The bank statements show regular payments from the Ongerup Hotel with payment for small amounts on 27 August, 4 September and 5 September 2014 marked as salary from Hooper.  The bank statements also show payments on 29 September, 15 October and 20 October 2014 from Gray marked as wages.

13. The applicant was requested on 23 October 2014 to provide evidence in support of her claim to have completed 88 days of specified work with her claimed employers.  This included a Form 1263, bank statements, payslips, group certificates, tax returns and employer references on official letterhead.

14. The applicant did not provide a completed Form 1263 to the delegate who was concerned that the bank statements show wages from another employer (Ongerup Hotel) throughout the claimed period of work with Hooper.  The delegate was not satisfied on the evidence provided that the applicant had completed the mandatory work requirement. 

15. The applicant provided to the Tribunal a completed Form 1263. 

16. The Tribunal advised the applicant that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone.  The applicant informed the Tribunal that she would not be attending the scheduled hearing. 

17. If she had, the Tribunal would have sought clarification of the days and hours worked for each employer, as the Tribunal was concerned over the regular salary payments for the Ongerup Hotel the applicant received for the same period she was claiming to have worked for her first employer (Hooper). The Tribunal is unable to determine on the information provided the hours worked each day and whether they could be considered to be the standard for that industry concerned. The Tribunal is unable to be satisfied on the evidence provided that the applicant had carried out specified work in regional Australia for a total period of at least 3 months.

18. The Tribunal does not accept the applicant has undertaken specified work for a total period of at least 3 months.

19. Therefore, the applicant does not satisfy cl.417.211(5). 

20. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Amanda Goodier

    
    

    Member