Aliaga (Migration)

[2024] AATA 295

Aliaga (Migration) [2024] AATA 295 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pilar Aliaga

REPRESENTATIVE:  Mrs Gabriela Thomson (MARN: 1278133)

CASE NUMBER:  2214001

HOME AFFAIRS REFERENCE(S):          BCC2020/2585441

MEMBER:Scott Clarey

DATE:30 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 30 January 2024 at 4:23pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – at least three months of ‘specified work in regional Australia’ – LIN 20/182 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211

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 Home Affairs on 1 September 2022 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 November 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl.417.211(5), which requires an applicant for a second Working Holiday visa to have carried out at least three months of ‘specified work in regional Australia’ while being the holder of a first Working Holiday visa and to have been remunerated for that work in accordance with relevant Australian legislation and awards.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the applicant had not carried out a three-month period of specified work in a regional area of Australia.

4. The applicant appeared before the Tribunal on 23 January 2024 (via teleconference) to give evidence and present arguments. The applicant was represented in relation to the review. The representative did not attend the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has carried out three months of specified work in regional Australia.

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

7. Clause 417.211(5) requires 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 Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘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 LIN 20/182.

8. In coming to their finding that the applicant did not meet cl.417.211(5), the delegate found that the applicant had carried out 70 days of specified work, which was less than three months. In coming to this finding, the delegate found that the applicant’s work for Mr Dain Mavin was unable to be counted in the assessment of whether she completed three months’ specified work because the applicant undertook this work on a voluntary basis and was therefore not remunerated appropriately.

9. The applicant has submitted to the Tribunal a number of documents, including:

   ·A statutory declaration from the visa applicant dated 12 February 2023

   ·An employer letter from Mr Dain Mavin date 10 February 2023

   ·A ‘volunteer payslip’, from Mr Dain Mavin for the period 26/04/2020-13/06/2020

   ·A payslip from Aladdin Rocks for the period 18/11/2019-24/11/2019

   ·A payslip from Iruri Harvest Pty Ltd for the period 02/12/2019-08/12/2019

   ·A payslip from MJS Harvest Pty Ltd for the period 09/12/2019-02/02/2020

10. The Tribunal notes the following statement made in the visa applicant’s statutory declaration of 12 February 2023:

    I have worked as Voluntary for Mr Dain Marvin at the farm … in New South Wales My voluntary work was from 26 of April until the 13 of June 2020, during this time I was not paid a salary, instead I was given accommodation, food and transport allocations at the farm.

11. The visa applicant confirmed at the Tribunal hearing that her work for Mr Dain Mavin was undertaken on a voluntary basis. It is not in dispute that the applicant’s work for Mr Dain Mavin was conducted on a voluntary basis.

    FINDINGS

12. The Tribunal has considered all of the information on the Tribunal file, information contained in the Department file and the oral evidence received from the applicant at the hearing. Based on the information before it (that was discussed with the visa applicant at the hearing), the Tribunal finds that the applicant carried out

    ·seven days of specified work for Alladin Rocks from 18 November 2019 to 24 November 2019

    ·seven days of specified work for Iruri Harvest from 2 December 2019 to 8 December 2019

    ·56 days of specified work for MJS Harvest from 9 December 2019 to 2 February 2020

13. In relation to the applicant’s work for Mr Dain Marvin, the Tribunal accepts the visa applicant’s evidence (provided in her statutory declaration of 12 February 2023 and at the hearing) that this work was undertaken on a voluntary basis. The Tribunal finds that the visa applicant’s work for Mr Dain Mavin does not count toward the overall total period of specified work because it was not remunerated in accordance with the relevant Australian legislation and awards, as required by cl 417.211(5)(c).

14. Having considered the information before it, and based on the findings made above, the Tribunal finds that the applicant carried out at most 70 days of specified work during the relevant period. It finds that this is less than the minimum number of days in three months.

15. Therefore, the applicant has not carried out at least three months of specified work. She does not satisfy cl.417.211(5) which is a necessary criterion for the grant of the visa.

16. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Scott Clarey

    
    

    Member