Erkaev (Migration)

[2023] AATA 557

Erkaev (Migration) [2023] AATA 557 (10 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Artem Erkaev

CASE NUMBER:  2018427

HOME AFFAIRS REFERENCE:               BCC2020/2350651

MEMBER:L. Symons

DATE:10 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Work and Holiday (Temporary) (Class US) Subclass 462 visa.

Statement made on 10 February 2023 at 4:20pm

CATCHWORDS

MIGRATION – Work and Holiday (Temporary) (Class US) –subclass 462 Visa –specified regional work requirement not met –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03.1.15, Schedule 2, cls 462.218, 462.221A

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 23 December 2020 to refuse to grant the applicant a Work and Holiday (Temporary) (Class US) Subclass 462 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a dual citizen of the United States of America (USA) and of Russia. He was granted a subclass 462 (Work and Holiday) visa on 4 March 2019 and arrived in Australia on 20 December 2019. This visa was valid until 20 December 2020. He applied to the Department of Immigration (the Department) for a second subclass 462 (Work and Holiday) visa on 23 September 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 462.221A of Schedule 2 to the Migration regulations 1994 (Cth) (the Regulations) because he did not meet the requirements of cl 462.218 of the Regulations. On 25 December 2020, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 9 February 2023 at 1.00pm, via video, to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

5. The issue in this case is whether the applicant satisfies the requirements of cl 462.218 for the purpose of cl 462.221A.

6. Clause 462.221A provides that:

   If the applicant is, or has previously been, in Australia as the holder of a Subclass 462 (Work and Holiday) visa, the applicant:

   (a)  continues to satisfy the criteria in clauses 462.217, 462.218 and 462.219; and

   (b)  continues to hold the passport mentioned in paragraph 1224A(3)(a) of Schedule 1, or a valid replacement passport issued by the country concerned; and

   (c)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4011, 4013, 4014, 4019 and 4020; and

   (d)  is not a Foreign Affairs student or a Foreign Affairs recipient. 

7. Clause 462.218 provides that:

   If the applicant has held only one Subclass 462 (Work and Holiday) visa in Australia, the Minister is satisfied that:

   (a)  the applicant has, after 18 November 2016, carried out a period or periods of specified Subclass 462 work as the holder of the visa; and

   (b)  the total period of the work carried out is at least 3 months; and

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

8. ‘Specified subclass 462 work’ means work of a kind specified by the Minister in an instrument in writing for the definition of ‘specified subclass 462 work’ in Regulation 1.03 and Regulation 1.15FA. The applicable legislative instrument is Migration LIN 20/184 which defines ‘specified subclass 462 work’ as:

   (a)  Fishing and pearling work and tree farming and felling work.      

   (b)  Tourism and hospitality work.

   (c)  Plant and animal cultivation work and construction work.

   (d)  Bush recovery work and

   (e)  Critical Covid-19 work in the healthcare and medical sectors.

9. Tourism and hospitality work is further defined in Migration LIN 20/184 in Schedule 2, Table – Tourism and hospitality work.

10. The post code for Townsville, being 4810, is mentioned in Schedule 4, Table 1, State of Queensland in column 2 in Migration LIN 20/184.

    Has the applicant carried out the requisite specified subclass 462 work?

11. In his application for this visa lodged on 23 September 2020, the applicant stated that he had undertaken 3 months specified subclass 462 work in a regional area (Townsville postcode 4810) as the holder of a subclass 462 (Work and Holiday) visa. He stated that he was employed by Orpheus Island Nominees trading as Hotel The Ville in the tourism and hospitality industry from 10 June 2020 to 18 September 2020.   

12. The applicant lodged with the Department a Notification of Incorrect Answers form dated 2 December 2020 to correct the dates of his employment. He claimed he was employed from 13 September 2020 to 1 December 2020.

13. The applicant also lodged with the Department a number of supporting documents including the bio data pages of his USA passport and Russian passport, a Commonwealth Bank statement dated 23 September 2020, pay slips issued by Orpheus Island Nominees for the pay periods 7 September 2020 to 20 September 2020, 21 September 2020 to 4 October 2020, 5 October 2020 to 18 October 2020, 19 October 2020 to 1 November 2020, 2 November 2020 to 15 November 2020, 16 November 2020 to 29 November 2020 and 30 November 2020 to 13 December 2020.

14. The Departmental delegate was not satisfied that the applicant had undertaken 3 months specified subclass 462 work at the time of application, found that the applicant did not meet the requirements of cl.462.218(b) and therefore did not meet the requirements of cl.462.218 in its entirety. As he did not meet the requirements of cl.462.218, the delegate found that he did not meet the requirements of cl.462.221A(a) and therefore did not satisfy cl.462.221A in its entirety.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 23 December 2020. He also filed supporting documents including pay slips issued by Orpheus Island Nominees for the pay periods 7 September 2020 to 20 September 2020, 21 September 2020 to 4 October 2020, 5 October 2020 to 18 October 2020, 19 October 2020 to 1 November 2020, 2 November 2020 to 15 November 2020, 16 November 2020 to 29 November 2020 and 30 November 2020 to 13 December 2020, statement dated 25 December 2020, lease agreement in Townsville, Queensland for the period 14 September 2020 to 13 December 2020, employee payslip issued by Image Cruising (WA) Pty Ltd for the pay period 1 March 2022 to 31 March 2022, a lease agreement in Mt Hawthorn, Western Australia for the period 15 October 2021 to 15 April 2022, a work reference addressed to VETASSESS from Northern Escape Collections dated 18 August 2021 and a work reference from Image Holidays dated 16 January 2023.

16. During the hearing, the applicant gave evidence that he arrived in Australia on 20 December 2019 on a subclass 462 Work and Holiday visa that was valid until 20 December 2020. He moved to Townsville in September 2020 and obtained employment at Northern Escape in the tourism and hospitality industry commencing 13 September 2020. He worked full time for a year and a half and completed more than 90 days work in Townsville. He moved to Perth in May 2021 and has been working in the travel industry. He was recently promoted to the position of Sales Manager in a travel company and is currently on probation.

17. The Tribunal asked the applicant why he applied for a second subclass 462 Work and Holiday visa on 23 September 2020 when his first subclass 462 Work and Holiday visa was valid until 20 December 2020. He responded that he obtained work in the hospitality industry, his visa was due to expire in December 2020, because of the Covid-19 pandemic there were long delays in processing visa applications, he did not know about Bridging visas at that time, he was nervous that his visa would expire, he was stressed, he rushed his visa application, he thought he could collect the days and provide documents after he completed the required days. The Department asked him for further documents and he provided his payslips. He now understands that he should have completed the 3 months before he applied.

18. The Tribunal asked the applicant whether he had obtained immigration advice from a migration agent or lawyer and he responded no. He did not have the money to do so and was trying to survive during the Covid-19 pandemic. When asked whether he contacted the Department and spoke to someone about his situation, he responded no, as he was not aware that he could do that.

19. The Tribunal asked the applicant whether he was aware that one of the requirements for a second subclass 462 Work and Holiday visa is that he must have completed at least 3 months of specified subclass 462 work at the time he applied for the second subclass 462 Work and Holiday visa. He responded that he was not aware that he had to submit “all at the same time” and read it wrong. He did not realise that if he was “still collecting days” he was not allowed to apply. That is why he applied for the second visa in September 2020 and sent the documents once he had completed 3 months. He was confused how to count the days.  

20. The Tribunal pointed out to the applicant that in his application for the second subclass 462 Work and Holiday visa filed on 23 September 2020 he stated that he had undertaken 3 months of specified subclass 462 work. He responded that that was not correct as he was “still collecting the days” at the time he submitted the application. He now understands that he should have waited and then applied. The Tribunal pointed out to him that he had also provided incorrect dates as to when he undertook the specified subclass 462 work claiming in his visa application that he commenced the work on 10 June 2020. He responded that he could not remember and maybe he chose the wrong date. The Tribunal noted that he subsequently filed with the Department a Notification of Incorrect Answers form to correct the dates of his employment. He agreed.

21. Having considered all the evidence, the Tribunal accepts the applicant’s evidence that he moved to Townsville in September 2020 and commenced employment there on 13 September 2020. The work reference from Northern Escape Collections dated 18 August 2021 that he provided the Tribunal indicates that he was employed on a fulltime basis by Northern Escape Collections (which is part of the Morris Group (Orpheus Island Nominees Pty Ltd ATF Orpheus Island Unit Trust)) from 13 September 2020 to 16 May 2021 and that his work was based in Townsville, Queensland, post code 4810. Payslips he has provided are consistent with these dates. The Tribunal finds that he was employed by Northern Escape Collections on a fulltime basis from 13 September 2020 to 23 September 2020, being 10 days, as at the date of application and that he worked in Townsville during this period.

22. In view of the above, the Tribunal is not satisfied that the applicant has, after 18 November 2016, carried out a period or periods of specified subclass 462 work as the holder of the visa for a total period of at least 3 months. Therefore, the Tribunal finds that he does not meet the requirements of cl.462.218(b). As he is unable to meet the requirements of cl.462.218(b), he is unable to meet the requirements of cl.462.218 in its entirety. As he is unable to meet the requirements of cl.462.218, he is unable to meet the requirements of cl.462.221A.

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

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Work and Holiday (Temporary) (Class US) Subclass 462 visa.

L. Symons

Member