1609696 (Migration)

[2016] AATA 4719

1609696 (Migration) [2016] AATA 4719 (28 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fortune Ugiagbe

CASE NUMBER:  1609696

DIBP REFERENCE(S):  CLF2016/51988

MEMBER:Meena Sripathy

DATE:28 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 28 November 2016 at 4:01pm

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 14 January 2016. 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 because the delegate was not satisfied on the evidence provided that he had completed 3 months specified work in regional Australia.

4. The applicant appeared before the Tribunal on 28 November 2016 to give evidence and present arguments.

5. 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?

6. 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 (whether on a full-time, part-time or casual basis) for a total period or periods equivalent to at least 3 months’ full-time work, as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015. ‘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.

7. In his application for the visa the applicant declared he undertook specified work at Uabba Station for KL & PG Alston (ABN 32144229724) from 17 September 2015 to 14 December 2015 in the 2672 postcode area. In response to a request for further information the applicant provided to the department a bank account transfer receipt; a receipt for payment for a Criminal Records Check and an AFP police check.  He did not provide any further evidence as requested to substantiate his claimed work. 

8. He provided to the Tribunal a bank statement covering the period August 2015 to December 2015 indicating payment of wages during his claimed work period.  At the hearing the applicant provided evidence regarding the work he undertook at the declared place.  He described the work he undertook and the hours worked, which varied between 8 and 12 hours per day.  He lived on the property for the period of employment and came into town to withdraw money and get supplies. 

9. Having considered the evidence now before it, the Tribunal accepts that the work declared by the applicant comes within the ‘plant and animal cultivation’ category specified in the relevant instrument, and the postcode 2672 declared is included as a specified postcode. 

10. The Tribunal accepts on the bank statement evidence provided that the applicant undertook the equivalent of three months full time work.  It is satisfied on the basis of his oral evidence and documentation that the work was full time and the bank statement indicates withdrawals of funds which supports his claim to be in the vicinity of the claimed employment. 

11. Departmental records before the Tribunal indicate that he arrived in Australia on 1 November 2014 on a subclass 417 visa which was valid until 1 November 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.

12. Therefore, the applicant satisfies cl.417.211(5). 

13. 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

14. 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