1601685 (Migration)

[2016] AATA 4096

1601685 (Migration) [2016] AATA 4096 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yvonne Schaefer

CASE NUMBER:  1601685

DIBP REFERENCE(S):  CLF2016/14714

MEMBER:Adrian Ho

DATE:11 July 2016

PLACE OF DECISION:  Melbourne

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 11 July 2016 at 2:04pm

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 January 2016 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 1 October 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).

3. The delegate refused to grant the visa on the basis that the applicant had not completed any specified work as required by cl.417.211(5).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

5. Clause 417.211 requires, among 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 16/041.

6. The applicant submitted evidence, including evidence signed by her claimed employer, that she worked for 102 days picking and packing coffee in postcode area 4860, Queensland (DIBP f.22).

7. The delegate found issue in part with the fact that she had submitted only one payslip which only covered a 14 day period (DIBP f.19).

8. However that payslip also records that With Coffee Pty Ltd had paid her a year to date figure of not only the $748.80 for the period covered, but a total of $15648 which is confirmed in the PAYG Summary submitted for the year ended 30 June 2015 (DIBP f.20), which would at an average of $748 per fortnight, cover 20 fortnights of work and pay.

9. The applicant’s movement records reveal that her working holiday visa did not expire until October 2015.

10. Based on this evidence the tribunal is satisfied that the applicant has performed specified work in a specified area of regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

11. The applicant meets cl.417.211(5).

12. 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

13. 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.

    Adrian Ho

    
    

    Member