Ch Ng (Migration)

[2021] AATA 44

Ch Ng (Migration) [2021] AATA 44 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ee Mei Ch Ng

CASE NUMBER:  1816903

HOME AFFAIRS REFERENCE(S):          BCC2017/1412045

MEMBER:Denise Connolly

DATE:4 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

·cl 887.213 of Schedule 2 to the Regulations.

Statement made on 4 January 2021 at 11.33am

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – full-time work in specified regional area for at least one year – financial documents provided to tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 887.111, 887.213

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 23 May 2018 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 April 2017. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 887.213 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had provided evidence to demonstrate that she had worked in a specified regional area for at least one year in the period 2 February 2015 to 18 April 2017.

4. The applicant was invited to participate in a hearing on 5 January 2021. Prior to the hearing the applicant sent to the Tribunal further evidence demonstrating her employment in a specified regional area for a total of at least one year in the relevant period. Accordingly the Tribunal was able to make a favourable decision without the need for a hearing.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has worked full‑time in a specified regional area for a total of least one year as the holder of one or more of specified skilled or bridging visas.

   Work in a regional area

8. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least one year as the holder of one or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

9. The delegate recorded that the applicant was the holder of an eligible visa since 2 February 2015. The Department’s records confirm that she was granted a Skilled – Regional Sponsored (Class SP) (Subclass 489) visa on that date. On the basis of this evidence the Tribunal is satisfied the applicant was the holder of one of the visas mentioned in cl.887.212.

10. The Department’s file includes information the applicant uploaded with her visa application including full-time payslips from her employer Flourish Specialty Coffee for the period 29 March 2017 to 11 April 2017, advising that she worked 76 hours each fortnight. The delegate asked the applicant to provide additional evidence of her employment, advising that she must have worked full-time in the designated area. The applicant uploaded further information including an Australian Taxation Office Notice of Assessment for the year ending June 2014 recording a gross income of $33,288. She also provided an ATO Notice of Assessment for the period ending June 2015 recording a gross income of $36,923. She subsequently provided bank statements confirming she had received income from her employer Sprolo over the period 19 August 2015 to 27 January 2017, and from her employer Flourish over the period 28 January 2017 to 17 May 2017.

11. Having considered that information and other payslips from the applicant’s employers, the delegate was not satisfied the applicant had demonstrated that she had worked in full-time employment for a period of at least one year. She was only satisfied that the applicant had worked full-time for a period of 17 weeks. Accordingly the delegate was not satisfied the applicant had met the requirements of cl.887.213.

12. Clause 887.213 requires that the applicant must have worked full-time in a specified regional area for a total of at least one year. ‘Full-time’ is not defined in the legislation. The Department of Home Affairs policy[1], which can serve as a guide to this Tribunal, states that the Australian Bureau of Statistics suggests that a full-time position is one in which there is normally 35 hours of work per week, however this is dependent on the occupation and some discretion is permissible. However, the policy states that less than 30 hours would not comprise full-time work. The Tribunal has decided to adopt this approach.

    [1] Department of Home Affairs, Procedures Advice Manual (PAM3)

13. The applicant has provided to the Tribunal a written statement in which she explains that, having lived in a specified region of Australia for over two years and working full-time in that area for a period of at least one year, she applied for the visa on 18 April 2017. She asserted that her bank statements showed regular income over the period February 2015 to April 2017. She indicated she did not submit all her payslips because the size exceeded the limit.

14. The applicant has provided to the Tribunal and offer of employment from Sprolo Specialty Coffee, South Perth WA (postcode 6151) dated 17 October 2015 advising that the applicant’s hours of work for casual employment would be arranged by roster and vary from time to time. She has also provided a letter from Sprolo dated 19 July 2016 advising the applicant that her work arrangements had changed and she would be working 38 hours per week according to a roster that may vary from time to time. The applicant provided to the Tribunal payslips issued by Sprolo covering the period 1 October 2015 to 20 November 2016. She provided a letter from the Manager of Sprolo confirming that she was employed casually from October 2015 to August 2016 as a barista and chef and on a permanent basis from August 2016 to November 2016. However the manager advised that the applicant worked a minimum of 35 hours per week throughout her employment.

15. Having considered those payslips the Tribunal is satisfied the applicant worked on a full-time basis for Sprolo in the period 1 October 2015 to 20 November 2016 for at least 49 weeks.

16. The applicant has also provided evidence that she worked for Flourish Specialty Coffee in Floreat WA (postcode 6019) from 9 November 2016 to 18 April 2017 (and continuing). Having considered the payslips provided for that employment the Tribunal is satisfied that the applicant worked on a full-time basis for at least 7 weeks in that period.

17. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa, here the Skilled – Regional Sponsored (Provisional) (class SP) (subclass 489) visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

18. The Tribunal is satisfied that the applicant’s places of employment meet the definition of specified regional area, having regard to the applicable definition in cl.887.111, the previous visa held by the applicant and the relevant instrument, IMMI 12/021 for the purposes of r.1.03 which states that the whole of Western Australia is a designated area.

19. The Tribunal is satisfied the applicant was the holder of the specified visa when she worked in the specified regional area and had held that visa since February 2015.

20. On the basis of the findings above, the Tribunal is satisfied the applicant has worked on a full-time basis for at least 56 weeks, working at least 35 hours a week, in the period 1 October 2015 to 18 April 2017. Accordingly the Tribunal is satisfied that the applicant has worked full-time for one year and a specified regional area. The Tribunal is also satisfied the applicant held one of the visas listed in cl.887.212 while working in the specified regional area.

21. The Tribunal finds therefore that the applicant satisfies cl 887.213.

22. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

23. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 887 visa:

    ·cl 887.213 of Schedule 2 to the Regulations.

    Denise Connolly
    Member