1507836 (Migration)

[2016] AATA 3172

1507836 (Migration) [2016] AATA 3172 (25 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun Hon Yeung

CASE NUMBER:  1507836

DIBP REFERENCE(S):  CLF2015/34817

MEMBER:Josephine Kelly

DATE:25 January 2016

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 25 January 2016 at 12:24pm

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 27 May 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 12 March 2015. 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(5).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5).

4. The applicant appeared before the Tribunal on 25 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.  

   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 three 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. The applicant provided to the Tribunal copies of payslips and bank statements which included the period May 2014 to December 2014, a period of more than three months.  The Tribunal questioned the applicant closely about those documents because the pay dates noted on the pay slips did not accord with dates of deposits into his account.  However, after speaking with the applicant and closely analysing the documents, I am satisfied that the payslips and bank deposits reflect payments made by the one company for work the applicant carried out during that period in postcode areas 4510, Caboolture, and 4670, Bundaberg, in Queensland, which satisfy the criteria for regional Australia.  The work he carried out was picking strawberries, zucchinis and tomatoes which is specified work.

9. He held a subclass 417 (Working Holiday) visa while he was doing that work. 

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

11. 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

12. 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.

    Josephine Kelly

    
    

    Senior Member