Curtin (Migration)

[2019] AATA 4836

Curtin (Migration) [2019] AATA 4836 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Julie Majella Curtin

CASE NUMBER:  1838069

DIBP REFERENCE(S):  BCC2018/4022662

MEMBER:Kira Raif

DATE:11 October 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 11 October 2019 at 3:30pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa –applicant failed to attend tribunal hearing – no evidence of employment provided –specified regional work requirement not met– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 362, 379

Migration Regulations 1994, Schedule 2, cls 417.111, 417.211

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 10 December 2018 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 30 June 2018. The delegate refused to grant the visa on the basis that 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.

3. On 19 September 2019 the Tribunal wrote to the 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 11 October 2019. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.  

4. No response to the hearing invitation was received and the 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 review 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.

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

5. 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).

6. 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.

   Has the applicant carried out specified work?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed on the application form that she completed specified work with R&C Sheridan Enterprises Pty Ltd between 22February 2018 and 4 April 2018 and with O’Connor Contracting Pty Ltd between 1 April 2018 and 1 June 2019. In July 2018 the delegate wrote to the applicant inviting her to provide evidence of her employment, including payslips, bank records, a completed questionnaire, taxation records, employment contracts, superannuation statements, or other evidence of employment. The applicant did not respond to the delegate’s request and, as such, the delegate was not satisfied the applicant completed the specified work.

8. The applicant has not provided any further evidence of her employment to the Tribunal. The Tribunal considers that if the specified work had been completed, documentary evidence – in the form specified in the delegate’s letter – should have been readily available to the applicant. The applicant has not provided any explanation as to why such evidence may be unavailable.

9. On the limited evidence before it, the Tribunal is not satisfied that the applicant had carried out a period or periods of specified work in regional Australia, as a holder of the Subclass 417 visa, for at least 3 months full-time. The Tribunal is not satisfied the applicant meets cl. 417.211(5) and cl. 417.211.

   Conclusion

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

    DECISION

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

    Kira Raif

    
    

    Senior Member