Carey (Migration)

[2018] AATA 2176

Carey (Migration) [2018] AATA 2176 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lee Paul Carey

CASE NUMBER:  1618619

DIBP REFERENCE(S):  BCC2016/2724730

MEMBER:Louise Nicholls

DATE:31 May 2018

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 31 May 2018 at 4:24pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 Visa – Requisite specified work in regional Australia – Applicant departed Australia– Period of three months full time work requirement met – Decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 417.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is 26 years of age and is an Irish citizen. He was first granted a Working Holiday (Temporary) (Class TZ) visa on 19 July 2015 and arrived in Australia on 8 September 2015.

2. on 17 August 2016 and around the time his working holiday was due to expire, he applied for a further working holiday visa. The delegate of the Minister for Immigration requested further information regarding the requirements for the visa and he provided a checklist setting out the nature of the information required. The applicant provided a PAYG summary for March 2016 to 30 June 2016 and a Working Holiday Visa; Employment Verification Form 1263 showing that the applicant had been working in a cattle feedlot in rural Western Australia from 14 March 2016 to 16 August 2016.

3. However, the delegate was not satisfied the applicant had provided sufficient information on his work in regional Australia to satisfy the particular requirements for the visa. Accordingly, on 19 October 2016 the delegate found that the applicant did not meet the requirements of cl.417.221 and refused to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of the decision and it was made on 8 November 2016. The applicant provided the Tribunal with copies of documents previously provided as well as National Australia Bank records for the relevant period.

5. On 8 May 2018 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 31 May 2018. The invitation was sent by email to the email address provided by the applicant. The invitation stated that if the applicant did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

6. The movements’ records held by the Department show that the applicant departed Australia on 18 September 2017 and has not returned.

7. No response to the hearing invitation was received. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and the invitation has not been returned to sender. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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(5).

10. The issue in this case is whether the applicant carried out the requisite specified work in regional Australia.

11. 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 IMMI16/041.

12. Clause 417.221 provides that the applicant must continue to satisfy a number of criteria at the date of decision, including cl.417.211(5).

13. The evidence indicates that the applicant departed Australia on 18 September 2017. The Tribunal did not have the opportunity to take further evidence from the applicant regarding the specific hourly rate received by the applicant for regional work or other employment related matters. Nevertheless, taking the documents provided by the applicant into account, the Tribunal is satisfied that the applicant met the requirements of cl.417.211(5).

14. The documents provided by the applicant indicate that he carried out work in Australia between March and August 2016 during the time he was a Subclass 417 visa holder.

15. The PAYG summary, the employment verification form and the National Australia Bank records indicate that he worked for RW Dowling & Co between 14 March 2016 and 16 August 2016 for 155 days in a cattle feed lot. The employment verification form showed tha the work was undertaken in the 6309 area of Western Australia. The NAB statements also show many transactions which have taken place in or near the regional area in which the applicant was working, that is Cuballing, Narrogin and Pingelly.

16. The PAYG summary showed that he received a gross salary of $17,414 for a period from 14 March 2016 to 30 June 2016. The bank records show that the employer RW Dowling has deposited amounts for wages from 21 March 2016 with the final payment made on 16 August 2016. The total net amount of deposits from the employer amount to $21,201AUD.

17. The Tribunal finds that:

    ·The applicant undertook work in the 6309 postcode area of Western Australia which is a suburb or location listed in the Schedule to IMM16/041.

    ·The applicant undertook cattle feedlot work which falls within the description of specified work in paragraph 2 (b)(i)(F) of instrument IMMI16/041.That is, in plant and animal cultivation: maintaining animals for the purpose of selling them or their bodily produce.

    ·The employer has certified that the applicant worked for 155 days which exceeds the period of three months full time work. The net amount the applicant has received ($18.60) indicates that he has been paid slightly above the relevant award rate for farm and livestock hands (hourly pay rate $18.29[1]).

    [1] Fair Work Ombudsman Pastoral Award MA 000036

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

19. 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

20. 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.

    Louise Nicholls

    
    

    Senior Member