Astin (Migration)

[2020] AATA 2612

Astin (Migration) [2020] AATA 2612 (7 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paul Daniel Astin

CASE NUMBER:  1724175

DIBP REFERENCE(S):  BCC2017/2948423

MEMBER:Karen Synon

DATE:7 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Work and Holiday (Temporary) (Class US) Subclass 462 visa.

Statement made on 07 May 2020 at 3:53pm

CATCHWORDS

MIGRATION – Work and Holiday (Temporary) (Class US) –subclass 462 Visa –applicant failed to provide requested documents –specified regional work requirement not met– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363

Migration Regulations 1994, Schedule 2, cl 462.218

CASES

Hasran v MIAC [2010] FCAFC 40

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 15 September 2017 to refuse to grant the visa applicant a Work and Holiday (Temporary) (Class US) Subclass 462 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 16 August 2017.  The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.462.218 because he was not satisfied that the applicant had carried out a total of three months of specified subclass 462 work after 18 November 2016 as required by regulation 462.218(b).

3. The applicant applied for review of the primary decision on 5 October 2017 and provided a copy of the Department’s decision.

4. On 20 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting him to provide the following information in writing:

   oInformation to demonstrate you carried out a period of specified work in regional area as the holder of a Subclass 462 visa for a total period of at least three months which was remunerated in accordance with relevant Australian legislation and Awards.

5. The s.359(2) invitation to provide information was sent to the applicant’s via his advised email on 20 April 2020.  In this letter the applicant was advised that if we did not receive the invited information in writing by 4 May 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not provide the information within the prescribed period and no extension of time in which to respond was requested.

7. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant via his advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is cl.462.218.

   462.218

   If the applicant is, or has previously been, in Australia as the holder of a Subclass 462 (Work and Holiday) visa, the Minister is satisfied that:

   (a) the applicant has, after 18 November 2016, carried out a period or periods of specified Subclass 462 work as the holder of the visa; and

   (b) the total period of the work carried out is at least 3 months; and

   (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

10. The primary decision records that the applicant declared employment with five different employers but one of these employment periods, being his employment with Baybel Shearing from 25 August 2016 to 30 August 2016 in postcode 2794, could not be used to satisfy the requirements of cl.462.218(b) because that employment was not undertaken after 18 November 2016 as required by the Regulations.  The delegate found that when this employment was deducted from his overall claimed employment, the applicant had not carried out a total of at least three months of specified Subclass 462 work after 18 November 2016 as required.

11. When lodging the application for review the applicant addressed this issue in a submission. He stated that when he received the notification that he was granted a Work and Holiday (Temporary) (Class US) visa, the conditions only stated that he was required to work 88 days of mandatory rural/remote work to apply for an extension and it did not state that these 88 days could not be completed after (sic) 18 November 2016 to gain this extension. The applicant wrote that he entered Australia on 24 August 2016 and the following day began working as a shearer in a rural area of Australia. He stated that, after clarifying his work with the Australian Embassy in Washington, on 12 August 2007 he completed the final 12 days of work needed to satisfy the requirements for an extension to his visa and that, as at 12 August 2017, he had completed a total of 91 days of rural work to satisfy the requirements. The applicant stated when he spoke to the Australian Embassy at no time was he informed that these days had to completed after 18 November 2016 and, had he been so advised, he would not have returned to Australia as it would have been impossible to satisfy these requirements. The applicant wrote that he was never informed either verbally or in writing that the 66 days he completed before 18 November 2016 would not contribute to his 88 days of rural work or of the amendments to the Migration Regulations which resulted in this change. He points out that according to the Australian Government Federal Register of Legislation, these amendments were registered on 11 November 2016 which was more than three months after his visa had been approved and 3½ months after his visa period had commenced. The applicant said he finds it gravely unfair that he was expected to complete 88 days of rural work after these arrangements had been made when at no point was he informed about these changes.

12. The Tribunal understands the applicant’s position and concurs that the situation in which he found himself appears to have been unfair however, as he rightly points out, provisions were inserted into the subclass 462 criteria Schedule 2 on 19 November 2016, and item 5702 of the amending legislation, Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016 (F2016L016969) provides that it applies to any application for a visa made on or after 19 November 2016.  As the applicant made his application on 16 August 2017, and the Department's movement records indicate that at that time, he held a subclass 462 visa issued on 10 August 2016, he must satisfy the requirements of cl.462.218.

13. In making a determination on the matter, the Tribunal has no option but to apply the law as it stands and this includes the provisions of cl.482.218(a) that the specified work of at least 3 months was completed after 18 November 2016.

14. Accordingly the Tribunal is not satisfied that the applicant meets cl.482.218(b) and therefore cl.482.218 in its entirely.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Work and Holiday (Temporary) (Class US) visa.

    Karen Synon
    Member