1603886 (Migration)

[2016] AATA 4598

1603886 (Migration) [2016] AATA 4598 (25 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yo Han Kim

CASE NUMBER:  1603886

DIBP REFERENCE(S):  BCC2015/2866398 CLF2016/20448

MEMBER:Melissa McAdam

DATE:25 October 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 public interest criterion 4019 for the purposes of cl.417.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 25 October 2016 at 4:20pm

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 4 March 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). Relevantly to this case, they include cl.417.22 which set out the criteria to be satisfied at time of decision.

3. Clause 417.221 states, in the part that is relevant to this application, as follows:

   417.221  

   (1)  The applicant satisfies the criteria in subclauses (2) to (7).

   (2)  The applicant:

   (a)  continues to satisfy the criteria in paragraph 417.211(2)(c) and subclauses 417.211(4) and (5); and

   (b)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013, 4014, 4019 and 4020.

4. Public interest criterion 4019 states:

   4019   (1)  The applicant has signed a statement (a values statement) in accordance with Part 3.

   (2)  However, if compelling circumstances exist, the Minister may decide that the applicant is not required to satisfy subclause (1).

5. In his application for a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa the applicant answered ‘No’ to the general declaration question “I will respect Australian values as listed at the beginning of  this application, during my stay in Australia and will obey the laws of Australia.”

6. On 26 October 2015 the Department sent the applicant a request to complete and return an Australian Values Statement (AVS).

7. On 1 December 2015 the applicant sent the Department an AVS, signed by him but not dated with the date of signature. The Department requested the applicant to resubmit a properly signed and dated AVS but no further response was received from the applicant.

8. On 4 March 2015 the delegate refused to grant the visa on the basis that the applicant did not meet cl.417.22 because the applicant failed to meet public interest criterion 4019.

9. On 20 October 2016, the applicant submitted to the Tribunal an Australian Values Statement completed and signed by him, and dated 19 October 2016. The Tribunal therefore finds that the applicant now satisfies public interest criterion 4019

10. Given this finding, 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

11. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets public interest criterion 4019 for the purposes of cl.417.221(2)(b) of Schedule 2 to the Regulations.

    Melissa McAdam

    
    

    Member