CHANG (Migration)

[2019] AATA 1918

CHANG (Migration) [2019] AATA 1918 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ching-yin CHANG

CASE NUMBER:  1726751

DIBP REFERENCE(S):  BCC2017/2856409

MEMBER:Christine Cody

DATE:4 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2019 at 9:32am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – regional work – fruit picker – no evidence specified work carried out during working holiday visa – allegations false documents used to obtain employment – Tribunal attempted to contact applicant – no response – applicant unlawfully working on bridging visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211, 417.221, 417.222, condition 8101

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 11 October 2017 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 10 August 2017. 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) and cl.417.221.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 as the applicant did not meet cl.417.211(5) because the delegate was not satisfied that the applicant had carried out specified work in regional Australia.

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

   The Tribunal’s invitation to comment on or respond to information/provide information

5. On 12 March 2019 the Tribunal invited the applicant under s.359A and s.359(2) of the Act to provide information and to comment on or respond to certain information before it.

6. The Tribunal requested that the applicant provide all information to show that she has complied with the requirements of cl.417.211(5), which provides as follows:

   Cl.417.211(5)    If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that:

   (a)   the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

   (b)   the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

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

7. The Tribunal noted that she had already been provided with an opportunity to provide such information to the Department but it appeared that she did not do so.  The Tribunal attached the Department’s Request for Evidence of Specified Work indicating that it may assist her in providing the information sought by the Tribunal. The applicant was advised that if she had any questions she should contact the Tribunal.

8. Further, it was noted that the Department had been provided with information indicating that the applicant had relied upon false documents to obtain employment and that she was employed in a bakery after she was granted a Bridging visa C (Class WC) on 1 September 2017 with the visa condition 8101 (no work). This was said to be relevant because in order to be granted a second Subclass 417 Working Holiday visa, one of the criteria to be satisfied at the time the Tribunal makes its decision is cl.417.222, which provides that if she has been the holder of a Subclass 417 visa (which she was, valid from 7 August 2016 to 7 August 2017), then she is required to have complied substantially with the conditions of any visa held by her (cl.417.222(a)). One of the conditions on her bridging visa granted 1 September 2017 is that she was not to work, however, the information provided to the Department indicated that she has been working. The Tribunal said that if it relied upon this information it would find that she has not complied substantially with the conditions of her bridging visa and that she does not meet cl.417.222 (one of the criteria to be satisfied at the time of decision).

9. This invitation stated that the Tribunal should receive the applicant’s comments or response/information by 26 March 2019, or within the period allowed and as extended. This letter further informed the applicant that a failure to do so would mean that she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments (at the hearing date which had been scheduled for 3 April 2019) and that if there was no response or comments or information or request for extension of time then the Tribunal may make a decision on the review without taking any further action to obtain her views on the information or to obtain further information.

10. However, the Tribunal did not receive the applicant’s comments, response or information within the timeframe allowed for this purpose. The applicant also did not request an extension of time from the Tribunal in which to do so. The applicant did not respond to the Tribunal at all.

    The loss of the right to a hearing before the Tribunal

11. The Tribunal notes that the hearing invitation sent to the applicant for 3 April 2019 had informed the applicant that the Tribunal had insufficient information before it to make a favorable decision The Tribunal notes that its invitation was sent to the last relevant address for service provided by the applicant in connection with the application for review.  By operation of ss.359A, 359(2), 359C(1) and (2), 360(3) and 363A, the applicant is not entitled to appear before the Tribunal and the Tribunal does not have the power to permit her to do so.

12. The Tribunal had offered the applicant to attend a hearing on 3 April 2019. However, as the applicant failed to provide her comments or response and/or information within the prescribed period (or as extended), she has lost her right to appear before the Tribunal to give evidence and present arguments relating to the application for review.

13. The Tribunal wrote to the applicant on 28 March 2019 informing her that the hearing was cancelled, the reason for this, and that it would proceed to make a decision, taking into account anything received up until the time it makes its decision.

14. The Tribunal has not, as at the date of this decision, had any contact from the applicant.

15. The Tribunal notes that the Tribunal’s acknowledgement of the applicant’s application for review (sent to the applicant on 2 November 2017) specified that it is important that the applicant tell the Tribunal immediately if any of her contact details change; the Tribunal did not receive any such notification from the applicant.  That acknowledgement also stated that if the applicant wished to provide any material or written arguments for the Tribunal to consider, she should do so as soon as possible. No further information was provided to the applicant.

16. The Tribunal notes that the visa application was refused by the Department on 11 October 2017 because the delegate was not satisfied that there was evidence that the applicant had carried out specified work in regional Australia. As a result, the Tribunal observes that the applicant has been aware for about 18 months of the reasons for the visa application refusal, yet she has not provided any evidence in support of her application for review to the Tribunal.

17. Further, the Tribunal has waited more than one week before making a decision on this case, but has yet to receive any communication from the applicant.

18. In these circumstances, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant comments or response or information, as well as sufficient time to take steps to satisfy the regulatory criteria. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that she meets the requirements of cl.417.221(5).

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

19. 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 three 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 IMMI 16/087 Working Holiday Visa – Definitions of Specified Work and Regional Australia.

20. Relevantly to this case, where the applicant claimed to have been engaged as a raspberry picker, ‘specified work’ includes plant cultivation (harvesting and/or packing of fruit and vegetable crops). The relevant post codes defining ‘Regional Australia’ include 2480, the postcode in which the applicant claimed to have worked.

21. The applicant’s application form stated that she worked from 7 November 2016 to 20 February 2017 for her employer in regional Australia.  It appears from the Departmental file that the applicant did not provide any supporting documentation in support of her current application for the working holiday visa.

22. The delegate was not satisfied that 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 three months full-time work, as the holder of a Subclass 417 visa, which is a requirement for the grant of a second Subclass 417 visa. This conclusion was on the basis that no evidence was provided to the Department to substantiate the applicant’s claims that she carried out specified work in regional Australia. The applicant, who lodged an application for review to the Tribunal, was seeking a successful outcome, yet she did not provide to the Tribunal anything in support of her application. Further, when the Tribunal specifically sought this information from the applicant, she did not respond.

23. As there is no evidence that there was ‘specified work’ carried out by the applicant during the period of her working holiday visa, the Tribunal is not satisfied on the evidence before it that the applicant has done any specified work during the relevant period. 

24. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl.417.211(5) and therefore she does not meet the requirement of cl.417.221.

25. Having regard to the above finding and noting that as a result the applicant has not met a requirement for the grant of the working holiday visa, the Tribunal has not found it necessary to go on to consider whether or not the applicant was working in breach of the conditions of her bridging visa, relevant to the satisfaction of cl.417.222.

    CONCLUSION

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

    DECISION

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

    Christine Cody

    
    

    Member