CHUANG (Migration)

[2020] AATA 4714

CHUANG (Migration) [2020] AATA 4714 (12 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hsing-Yu CHUANG

CASE NUMBER:  1903493

HOME AFFAIRS REFERENCE(S):          BCC2017/4340090

MEMBER:Melissa McAdam

DATE:12 November 2020

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 12 November 2020 at 12:31pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – no evidence of claimed specified work in regional area provided – no response from claimed employer – claim that agent provided false information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5)

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 29 January 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 18 November 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.

3. In her application for the visa the applicant stated she had performed work in the ‘Agricultural, Forestry and Fishery’ industry, between 14 April 2017 and 30 July 2017, working as a farm hand, for an employer with ABN 32600578470.  She did not provide any evidence of having undertaken the work.

4. No further evidence was submitted by the applicant to the Department.

5. On 25 November 2018 the Department wrote to the applicant’s stated employer, Tasmanian Vineyards Services Pty Ltd, requesting confirmation of the applicant’s employment details.  The Department recorded that as at the date of its decision, it had received no response from the alleged employer.

6. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because she was unable to be satisfied that the applicant has completed a three month period of specified work in a regional area in Australia and was therefore unable to be satisfied that the applicant met Regulation 417.211(5) in its entirety.

   Information to the Tribunal.

7. On 22 September 2020 the Tribunal wrote to the applicant requesting she provide evidence of the specified work she had claimed to have undertaken.

8. On 5 October 2020 the applicant responded to the Tribunal, writing that:

   Due to my limited English, I was assisted by other people who claimed as professional agent to apply for my working holiday visa. I never claimed to work for Tasmanian Vineyard Service Pty Ltd between 14/ 04/2017 and 30/07/ 2017. I do not know this company and I never worked for them. I believe I have been cheated and I wish AAT could understand my situation.  I never intend to provide the wrong information to immigration and I have lost the contact with the person assisted me with my working holiday visa.

9. On 14 October 2020 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 November 2020.

10. On 26 October 2020 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant has completed three months of specified work in a regional area of Australia.

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

13. 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.

14. The applicant has not provided any documentary evidence that she competed three months of specified work in a regional area of Australia.  She has stated in writing to the Tribunal that she did not in fact complete the work that was described in her visa application. She writes that she believes she was cheated by a person purporting to be a Migration Agent who falsified information in the visa application.

15. In view of the lack of evidence of her completion of the work and her admission she has not completed the work, the Tribunal finds that the applicant has not completed three months of specified work in a regional area of Australia.

16. Therefore, the applicant does not satisfy cl.417.211(5).

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

    DECISION

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

    Melissa McAdam

    
    

    Member