1508453 (Migration)

[2016] AATA 4350

1508453 (Migration) [2016] AATA 4350 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Megha Abraham
Mr Adhitya Suvarna

CASE NUMBER:  1508453

DIBP REFERENCE(S):  BCC2015/911531

MEMBER:Antonio Dronjic

DATE:9 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

·cl.887.213 of Schedule 2 to the Regulations.

Statement made on 09 September 2016 at 12:03pm

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 12 June 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 22 March 2015. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas because the first named applicant (the applicant) did not satisfy cl.887.213 of Schedule 2 to the Regulations. The delegate was not satisfied that the applicant had worked full time in a specified regional area for a total of at least one year.

4. The applicants applied for review of that decision on 23 June 2015 and were represented in relation to the review by a registered migration agent. With their application, the applicant’s submitted copy of the primary decision record.

5. On 3 January 2016, the applicants’ representative relevantly submitted:

   ·Legal submissions stating that, in addition to the full time employment that was considered and accepted by the delegate, the first named applicant also volunteered for a non for profit organisation, Can Do Hearing Group, for additional period of seven weeks. Further, it was submitted the first named applicant, while working at Can Do Hearing Group, had another part time employment at Freight Expert Solutions over the period of seven weeks (from 13 October 2014 to 29 December 2014). The representative submitted documentary evidence in support of these claims and noted that some of the evidence provided to the tribunal was not before the delegate at the time of primary decision;

   ·Summary of working weeks (spread sheet prepared by the applicant);

   ·Copy pay slips from Pro AV Solutions Australia Pty Ltd – (26 Weeks).

   ·Can Do Hearing Group - Letter confirming the employment period dated 9 July 2015;

   ·Can Do Hearing Group - Period 1 - 7 Weeks

   ·Wirrina Cove Resort - Pay Slips (11 Weeks)

   ·Wirrina Cove Resort - 2014 PAYG

   ·Wirrina Cove Resort - 2015 PAYG.

   ·Can Do Hearing Group - Period 2 - 21 Weeks

   ·Can Do Hearing Group - 2015 PAYG.

   ·Letter from Freight Experts Solutions dated 9 July 2015;

   ·Statutory Declaration from Mr Andrew Gunaseelan Nathan, the managing partner of Freight Experts attesting to the first named applicant’s employment at this organization

   ·The first named applicant’s tax assessment notice for 2014.

6. The applicants attended the tribunal hearing via telephone conferencing on 29 August 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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 the present case is whether or not the first named applicant has worked full-time in a specified regional area for a total of at least one year.

   Work in a regional area

9. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

10. The evidence before the tribunal indicates that, at the time she applied for the Subclass 887 visa, the first named applicant had held a Class VF (Subclass 475) visa since 23 June 2011.

11. The applicant has presented documentary evidence to the tribunal that, between June 2013 and 22 March 2015, being the date she applied for a subclass 887 visa, she has worked full-time in a specified regional area for a total of more than 60 weeks consisting of:

    ·26 weeks of full time work (38 hours per week) at Pro AV Solutions Australia Pty Ltd (from 17 June 2013 to 13 December 2013);

    ·11 Weeks of full time work (40 hours per week) at Wirrina Cove Resort (from 28 April 2014 to 30 June 2014;

    ·7 weeks of voluntary full time work at Can Do Hearing Group between 16 March 2014 and 27 April 2014 (tribunal folios 35, 136 – 138)

    ·16 weeks of full time work at Can Do Hearing Group between 3 August 2014 and 8 March 2015 (tribunal folios 22-29 and 36).

12. In addition, the first named applicant provided documentary evidence of her two part time employments:

    ·Seven weeks of part time employment at Freight Experts Solutions between 13 October 2014 and 29 December 2014

    ·Four weeks of part time employment (less than 30 hours per week) at Can Do Hearing Group during the weeks starting on 2 November 2014; 9 November 2014; 7 December 2014 and 11 January 2015.

13. The applicants’ representative submitted that the combination of these two part time employments makes up additional weeks of full time employment.

14. On 7 September 2016, the applicants’ representative submitted additional documentary evidence in support of the applications including:

    ·Statement from Ms Narelle Mawson-Akers, the Administration Manager of Deaf Can Do, dated 6 September 2016, confirming that Ms Megha Abraham volunteered at this organisation between Tuesday 11 March 2014 and Friday 25 April 2014.

    ·Timesheets corroborating the above statement; and

    ·Statement from Ms Narelle Mawson-Akers, the Administration Manager of Deaf Can Do, dated 6 September 2016 confirming that Ms Megha Abraham is a current employee with the not-for-profit organisation.

15. Based on the evidence before me, I am satisfied that, at the time the first named applicant applied for the visa, the applicant had worked full-time in a specified regional area for a total of at least one year as the holder of a visa of the kind mentioned in cl.9887.212. Accordingly, the tribunal finds that the first named applicant satisfies the requirements of cl.887.213 of Schedule 2 to the Regulations.

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

17. The tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

    ·cl.887. 213 of Schedule 2 to the Regulations.

    Antonio Dronjic
    Member