Bryan (Migration)

[2020] AATA 3848

Bryan (Migration) [2020] AATA 3848 (8 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bertie James Bryan

CASE NUMBER:  1913401

HOME AFFAIRS REFERENCE(S):          BCC2019/35983

MEMBER:Mary Urquhart

DATE:8 September 2020

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 08 September 2020 at 2:43pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia for three months – no response to tribunal’s request for information and evidence – applicant departed Australia – no valid visa to return – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.211, 417.221

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 10 May 2019 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 6 February 2019. 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.417.221.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because he did not provide evidence to verify they completed 3 months specified work in regional Australia as required by Regulation 417.211(5).

4. The applicant sought a review.

5. On 20 August 2020 the Tribunal wrote to the applicant seeking information. The Tribunal set out particulars in relation to information sought as follows:

   “Cl.417.221 refers to time of decision criteria. It requires you, amongst other things, to continue to meet time of application criteria in cl.417.211.

   Cl.417.211 refers, amongst other things, to the Minister being satisfied that you intend to enter Australia and remain as a genuine visitor.

   Movement records indicate that you departed Australia on a WA 010 visa which expired on 29 February 2020 and you do not have a valid visa to re-enter Australia.

   On 29 June 2020 a letter was sent to you seeking information as to your intentions in regard to this review. You did not respond.

   This information is relevant to the review because it appears to indicate that you may not meet requirements for the visa”.

6. The applicant was invited to provide a response by 3 September 2020.

7. The applicant was put on notice that if the Tribunal did not receive the applicant’s comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information and that he would  also lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal  to give evidence and present arguments.

8. No response was received as at 3 September 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant meets the criteria for the visa required by cl.417.211.

11. On Department file reveals that 6 February 2019, the applicant applied for a Working Holiday (Temporary) (Class TZ)(Subclass 417) visa.

12. The applicant declared they undertook specified work with the following employers:

    ·The Trustee for BUTCHER MANAGEMENT TRUST (ABN: 33234464689) from 13 April 2018 to 01 June 2018 in the 4854 regional postcode area.

    ·KBC WORKFORCE PTY LTD (ABN: 66626168143) from 27 November 2018 to 13 February2019 in the 3500 regional postcode area.

13. On 18 March 2019, the applicant was requested by the Department to provide more information in relation to their application.

14. Evidence requested included:

    ·A completed ‘WHM Specified Work Questionnaire’

    ·Payslips

    ·Bank transaction statement for the specified work period claimed

    ·A completed and signed Employment verification form 1263

    ·Piece rate agreements

    ·Deduction agreements

    ·Employment contracts

    ·Payment Summary

    ·Tax Statement

    ·Superannuation Statement

15. The applicant was given 28 days to provide this information to the Department.

16. The applicant did not respond to the request by the department.

17. The applicant did not respond to the Tribunal’s request for information. Movement records indicate that the applicant departed Australia on 29 February 2020 and does not hold a valid visa to return. No further information has been provided for this review.

18. On the basis of the evidence before it the Tribunal is unable to be satisfied that the applicant completed 3 months specified work in regional Australia. Therefore, the Tribunal is not satisfied that the applicant meets Regulation 417.211(5), as their 3 months specified work in regional Australia cannot be verified.

19. Accordingly, the Tribunal is not satisfied that the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa, as prescribed in Regulation 417.211(5)(a).

20. As the applicant fails to satisfy Regulation 417.211(5)(a), the applicant fails to satisfy Regulation 417.211 in its entirety. As the applicant does not meet Regulation 417.211, they fail to meet Regulation 417.221(2)(a).

21. Therefore, the applicant does not satisfy cl.417.221.

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

    DECISION

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

    Mary Urquhart

    
    

    Member