1609466 (Migration)

[2016] AATA 4697

1609466 (Migration) [2016] AATA 4697 (22 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cheolhee Kim

CASE NUMBER:  1609466

DIBP REFERENCE(S):  BCC2015/3294620

MEMBER:Meena Sripathy

DATE:22 November 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 22 November 2016 at 11:23am

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 7 June 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 9 November 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because delegate was not satisfied that he had completed 3 months specified work in regional Australia. The delegate referred to him not having provided sufficient evidence to support his claimed employment.

4. The applicant appeared before the Tribunal on 16 November 2016 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. He confirmed that he is currently living in Darwin and studying English.  He arrived in Australia on 17 December 2014.  He confirmed that he worked from 19 December to 27 June 2015 with G&K Tiling, undertaking tiling work for residential houses in Darwin.   The Tribunal put to him the ABN number he referred to in his application was associated with an entity in his name that was registered in July 2015.  He explained that he made a mistake about this.  This is an ABN he registered for himself in relation to cleaning work he did after this work.  The company he worked for was G&K Tiling.  He does not have the ABN number with him now but he can provide it. The applicant told the Tribunal he obtained this job through an internet site for the Korean community in Darwin. He arranged it prior to coming to Australia. He worked 8 hours a day 5 days a week.  The Tribunal asked him if he was given payslips.  He said he was, but he may not have kept them.  It explained that it required evidence of his hours worked and rate of pay.  He undertook to provide the payslips after the hearing.  He confirmed he was paid into his bank account.  The Tribunal confirmed these were on the Department file. He lived at the address indicated on the bank statements during the period of the specified work. The Tribunal noted that the Form 1263 referred to in the delegate’s decision record is not on the file, and asked him to provide it. 

6. On 21 November 2016 the Tribunal received the following information and documents from the applicant:  evidence of ABN registration for G&K Tiling Pty Ltd; Form 1263;   applicant’s tax File Number declaration; payslips; employer’s PAYG Summary including details of applicant; evidence of direct debit for gym membership for applicant in Darwin; bank statements evidencing payment of wages and living in area of claimed employment; job description.

7. 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?

8. 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 08/048.

9. In his application for the visa the applicant declared he undertook specified work with Cheol Hee Kim (ABN 11 826 620891) from 19 December 2015 to 27 June 2016 in the postcode area of 0800. Reference is made in the decision record to a Form 1263 he submitted indicating he worked for G & K Tiling in the 0801 regional area, 5 days a week, 8 hours a day and was paid into his bank account. The delegate’s decision record indicates he did not provide bank statements as requested, although bank statements for an NAB account in the applicant’s name for the period 17 December 2014 to June 2015 are on the Department file.  These bank statements show regular deposits from a payer named Gui Chung Cho in the relevant period. 

10. On the basis of evidence provided by the application at hearing, and documents submitted following, the Tribunal makes the following findings. It accepts that the applicant undertook work for G & K Timing in the period 19 December 2014 to 27 June 2015 in the 0801 postcode area. Evidence of business registration for this employer was provided following the hearing, together with a PAYG summary and payslips confirming the applicant’s employment.

11. The Tribunal accepts that the work declared by the applicant comes within the construction category specified in the relevant instrument, and the postcode 0801 is included in the postcodes specified. 

12. On the basis of the evidence of payslips and bank statement showing payment of wages into his account, the Tribunal accepts that the applicant undertook more than the equivalent of three months full time work as claimed.  The payslips and bank statements support his claims that he undertook this work and place him in the vicinity of the declared work in that period.  On the basis of the evidence of his payslips and evidence of pay into his bank account, the Tribunal is satisfied that the applicant was remunerated in accordance with relevant Australian legislation and awards.  Therefore, the applicant satisfies cl.417.211(5). 

13. Departmental records before the Tribunal indicate that he arrived in Australia on 17 December 2014 on a subclass 417 visa which was valid until 17 December 2015.   Therefore on the evidence before it, the Tribunal accepts the applicant carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

14. 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

15. 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.

    Meena Sripathy

    
    

    Member