1512874 (Migration)

[2016] AATA 4290

1512874 (Migration) [2016] AATA 4290 (29 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Prita Waniputri

CASE NUMBER:  1512874

DIBP REFERENCE(S):  BCC2015/1377926

MEMBER:Alison Mercer

DATE:29 August 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 887 visa:

·cl.887.213 of Schedule 2 to the Regulations.

Statement made on 29 August 2016 at 12:16pm

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 September 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 May 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 visa because she was not satisfied that the applicant met cl.887.213 of Schedule 2 to the Regulations. This clause required the delegate to be satisfied that the applicant had worked full time in a specified regional area for a total of at least 1 year as the holder of a specified visa (or visas). The delegate found the information supplied by the applicant was insufficient to establish that she had worked full time in a specified regional area for at least 1 year prior to making her visa application.

4. The Tribunal received a review application from the applicant on 19 September 2015, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Paul Tirtha, to be her representative and authorised recipient for correspondence for the purposes of review.  The review application was also accompanied by the following documents:

   ·PAYG payment summary for the applicant for the 2014/15 financial year showing gross payments of $36,397 received from Active Electrical Distributors Unit Trust;

   ·ATO notice of assessment for the applicant for the 2014/15 financial year showing taxable income of $36,650; and

   ·letter from Active Electrical Distributors Pty Ltd dated 16 September 2015 certifying that the applicant was currently working there, had commenced on 16 December 2013 as the holder of a subclass 487 visa and was employed on a full time basis (38 hours per week) as an accounts payable clerk.  She had taken 39 days of paid annual leave and 2 days of sick/holiday leave since commencing employment. The letterhead indicates that the employer’s location is Moorabbin, a suburb of Melbourne in the state of Victoria with the postcode 3189.

5. On 17 August 2016, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 2 September 2016.  On 23 August 2016, the applicant emailed the Tribunal to confirm that he and the applicant would attend the hearing and would have her employer available to give evidence as needed, and to provide additional documents, being:

   ·superannuation statement for the applicant for the financial year 2014/15 showing regular contributions throughout that period by Active Electrical Distributors Pty Ltd.

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

7. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies cl.887.213.

   Work in a regional area

9. Clause 887.213 requires that, at the time of visa application (in this case, 13 May 2015), 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. Clause 887.111 provides that a ‘specified regional area’ means a part of Australia identified in either subclause (2) or (3).

11. The Tribunal is satisfied, from the applicant’s Departmental movement record, that she was granted a Class VC subclass 487 (Skilled Graduate) visa on 22 March 2013, which was valid until 23 March 2016, and which was subject to condition 8549.  Since the expiry of that visa, the applicant has held a bridging visa.  The Tribunal is satisfied that she held a visa specified in cl.887.211(2)(c).  Under these circumstances, cl.887.211(2) provides that a specified regional area is a part of Australia that, at the time at which a visa of that kind was first granted to the applicant, was specified in an instrument in writing by the Minister under item 6701 of Schedule 6, or was a designated area, as specified in a relevant written instrument by the Minister made pursuant to r.1.03. The relevant written instrument for these purposes in force at the relevant time in this case is IMMI 12/021, and it specifies that the entire state of Victoria is a designated area for these purposes.

12. As noted above, the applicant has claimed to have worked from 16 December 2013 onwards for Active Electrical Distributors Pty Ltd on a full time basis as an accounts clerk.  If accepted, the applicant would have been employed on a full time basis for at least 1 year at the time of her visa application on 13 May 2015. (This is so even if the applicant’s combined 41 days of annual leave and sick leave are deducted, although the Tribunal does not consider that it would be appropriate to do so since they are standard entitlements for most full-time employees).

13. The delegate was not satisfied that the documentary evidence provided by the applicant at the time of the delegate’s decision was sufficient to enable her to be satisfied of the work experience claimed by the applicant.  Since then, the Tribunal has had the benefit of receiving additional and more detailed documentary evidence from the applicant and her employer, and it is satisfied on the basis of this information that the applicant had worked on a full time basis for Active Electrical Distributors Pty Ltd for at least 1 year at the time that she made her visa application. The Tribunal gives weight to the fact that the applicant’s 2013/14 and 2014/15 PAYG summary statements, her ATO taxation assessment for 2014/15, her payslips, her superannuation statement and her employer’s reference letter all support her full time employment with that employer from 16 December 2013 to date.  The Tribunal is further satisfied that the employment was undertaken in Moorabbin, which is located in the state of Victoria, the entirety of which is a designated area and therefore a specified regional area for these purposes.

14. As noted above, the Tribunal is satisfied that the applicant undertook the 1 year of full time work with Active Electrical Distributors Pty Ltd while the holder of a subclass 487 visa, which is a specified visa for these purposes in cl.887.212(d).

15. Accordingly, the Tribunal is satisfied that the applicant meets the requirements of cl.887.213.

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 application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 887 visa:

    ·cl.887.213 of Schedule 2 to the Regulations.

    Alison Mercer
    Member