1501627 (Migration)

[2015] AATA 3222

1501627 (Migration) [2015] AATA 3222 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rauno Oolup

CASE NUMBER:  1501627

DIBP REFERENCE(S):  CLF2015/8567

MEMBER:Dione Dimitriadis

DATE:29 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

·cl.417.211(5) of Schedule 2 to the Regulations.

Statement made on 29 July 2015 at 4:49pm

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 14 January 2015 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 23 November 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.417.211(5).

4. On 30 April 2015 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information to demonstrate that he 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, in writing.

5. The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 14 May 2015, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant meets the requirements of cl.417.211(5).  

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

9. 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.

10. Clause 417.211(5) applies to an applicant who has previously held a Subclass 417 visa and requires the Tribunal to be satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Subclass 417 visa. 

11. According to the records of the Department of Immigration (the Department), the applicant was granted a Subclass 417 visa on 15 November 2013 and entered Australia as a holder of that visa on 27 November 2013. The applicant’s Subclass 417 visa ceased on 27 November 2014. The Tribunal finds that cl.417.211(5) applies to the applicant.

12. The applicant applied for a second Working Holiday visa on 23 November 2014.  The applicant stated in the visa application that he undertook specified work in regional Australia for a total of 3 months and the industry in which this work mainly occurred was Agriculture, Forestry and Fishing. The applicant stated that he worked from 4 December 2013 to 1 June 2014 with an employer which had ABN 67009591708. This is the ABN for Paspaley Pearling Company Pty Ltd.  The applicant stated in the visa application that the postcode for the employer was 0800.

13. On 27 November 2014 the Department requested that the applicant provide evidence that he had carried out specified work while he held his first working holiday visa, including form 1263, bank statements covering the period of specified work, and other evidence such as payslips and PAYG payment summary.

14. Information in the Department’s file indicates that the applicant did not respond to the Department’s request. 

15. The delegate refused the visa on the basis that the applicant did not satisfy cl.417.211(5). 

16. At the time of lodging the application for review on 4 August 2014, the applicant provided a number of documents including copies of the following:

    ·The delegate’s decision record;

    ·Two pages of the applicant’s Estonian passport;

    ·Paspaley Earning Report from 15 December 2013 to 1 June 2014 setting out details of the applicant’s pay and the number of days worked by the applicant;

    ·One page of form 1263 stating that the applicant worked 124 days at Paspaley Pearling Co. and that the type of work he carried out was pearling;

    ·Bank statement in the name of the applicant for the period from 19 December 2013 to 29 May 2014;

    ·PAYG payment summary.

17. On 27 March 2015 the Tribunal received an email from the applicant who stated that, because of family reasons, it is no longer possible for him to live in Australia.  

18. On 30 April 2015 Tribunal wrote to the applicant and invited him to provide information in writing to demonstrate that he worked in regional Australia for at least 3 months as the holder of a Working Holiday visa.

19. The Tribunal has had regard to the applicant’s bank statement from 19 December 2013 to 29 May 2014, the Paspaley Earning Report from 15 December 2013 to 1 June 2014 setting out the pay and the number of days worked by the applicant and the PAYG payment summary. The Tribunal accepts on the evidence that the applicant was living in Darwin during the relevant period from 4 December 2013 to 1 June 2014. 

20. The Tribunal is satisfied on the evidence that the applicant worked from 4 December 2013 to 1 June 2014 doing pearling for Paspaley Pearling Co Pty Ltd. Although the amount of work the applicant undertook varied from week to week, the Tribunal is satisfied that the applicant resided and worked in regional Australia for at least 3 months as the holder of a Subclass 417 visa for the employer, Paspaley Pearling Co Pty Ltd.   

21. The Tribunal is satisfied that the applicant carried out pearling for Paspaley Pearling Co Pty Ltd.  The Tribunal is satisfied that the applicant carried out specified work in fishing and pearling. The Tribunal is satisfied that pearling is included in specified work in fishing and pearling in IMMI 08/048.

22. The Tribunal is satisfied that the applicant has carried out specified work in that he carried out the pearling from 4 December 2013 to 1 June 2014. The Tribunal is satisfied that the applicant has carried out specified work in Australia for a total period of at least 3 months. 

23. The postcode of Paspaley Pearling Co Pty Ltd is 0801. The applicant stated in the visa application that he carried out the work at postcode 0800. Both the postcodes are for Darwin, Northern Territory.  In IMMI 08/048 ‘Working Holiday Visa – Definitions of ‘Specified Work’ and ‘Regional Australia’ (subitem 1225(5))’ the Minister for Immigration specified the areas having the postcodes listed in the Schedule to this Instrument as being regional Australia for the purposes of subitem 1225(5) of Schedule 1 to the Regulations. The postcodes 0800 and 0801 are listed in the Schedule to this Instrument as being regional Australia. The Tribunal is satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months. 

24. At the time the applicant was employed by Paspaley Pearling Co Pty Ltd, he was the holder of a Subclass 417 visa. The Tribunal finds that the applicant, who at time of application was in Australia as the holder of a Subclass 417 visa, has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.

25. Therefore, the applicant satisfies cl.417.211(5). 

26. The Tribunal notes that the applicant informed the Tribunal on 27 March 2015 that because of family reasons it is no longer possible for him to live in Australia. The Department’s records indicate that the applicant departed Australia on 15 February 2015. The Tribunal has only considered whether the applicant meets cl.417.211(5). The Department will now consider whether the applicant satisfies the remaining criteria for the grant of the visa.

27. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

    DECISION

28. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

    ·cl.417.211(5) of Schedule 2 to the Regulations.

    Dione Dimitriadis

    
    

    Member