Fong (Migration)

[2022] AATA 2641

Fong (Migration) [2022] AATA 2641 (1 April 2022)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ka Ho Fong

REPRESENTATIVE:  Miss CHI-CHEN KUO (MARN: 1700349)

CASE NUMBER:  2109809

HOME AFFAIRS REFERENCE(S):          BCC2020/1809633

MEMBER:Rosa Gagliardi

DATE OF DECISION:  1 April 2022

DATE CORRIGENDUM

SIGNED:5 April 2022

PLACE OF DECISION:  Canberra

AMENDMENT:  The following corrections are made to the decision:

1. On the covering page, amend Date from “March 2022” to “1 April 2022”.

   
   Statement made on 5 April 2022 at 10:36am

   Rosa Gagliardi
   Member

   
   

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Ka Ho Fong

   REPRESENTATIVE:  Miss CHI-CHEN KUO (MARN: 1700349)

   CASE NUMBER:  2109809

   HOME AFFAIRS REFERENCE:               BCC2020/1809633

   MEMBER:Rosa Gagliardi

   DATE:March 2022

   PLACE OF DECISION:  Australian Capital Territory

   DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

   ·cl 417.211(6) of Schedule 2 to the Regulations.

   
   Statement made on 1 April 2022 at 1:35pm

   CATCHWORDS

   MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – applicant has been remunerated for the specified work he has undertaken in regional postcodes –work conducted in regional Australia – decision under review remitted

   LEGISLATION

   Migration Act 1958, s 65

   Migration Regulations 1994, Schedule 2, cls 417.111, 417.211

   STATEMENT OF DECISION AND REASONS

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 July 2021 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicant applied for the visa on 27 June 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 417.211(6).

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(6)(e) because he/she was not satisfied that the applicant had been remunerated in accordance with relevant legislation and awards.

5. The applicant appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. Clause 417.211(6) requires that, at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 6 months. All of that work must have been carried out on or after 1 July 2019 and while the applicant held the second 417 visa or a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa). The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl 417.111.

9. The applicant is seeking his third Working Holiday visa.

10. At the time of application, the delegate was concerned that the applicant had not been remunerated for the specified work undertaken in accordance with relevant Australian legislation and awards (cl.417.211(6)(e)).  There were no concerns that the applicant had not undertaken a total period of that work for at least 6 months (cl.417.211(6)(b)).  The Tribunal has totalled the days worked and notes that from the evidence the applicant worked more than 6 months even though the Department does not appear to have had access to the information to indicate that this was the case at the time of application.

11. The point of contention is, therefore, that while the applicant had provided bank transactions for his work with the Employer – Abig Farming PTY LTD (ABN: 70624680191) for the period
    from 01 July 2019 to 28 July 2019, in the 4516 regional postcode, the transactions did not indicate a name of the account holder and the income received from the declared employer.  This was considered to be necessary third party corroboration that the applicant was paid in accordance with relevant legislation and awards.

12. The Tribunal agrees these accounts of themselves are not definitive evidence that the applicant was remunerated for the specified work undertaken in accordance with relevant Australian legislation and awards.  Nonetheless, to disregard the payment slips from the employer would be to indicate that the pay slips, showing payment of tax and superannuation, were falsely generated.  The Tribunal has no evidence to indicate that this is the case and places weight on the payslips and other information submitted about the work conducted with Abig Farming PTY LTD.  Indeed, the delegate wrote that based on the evidence before him/her, “I find that the applicant may have completed specified work with Employer – Abig Farming Pty Ltd”.  

13. The delegate also considered that the lack of banking transaction evidence was cause to affirm the decision in respect of other employers also, in cases where payslips had been provided as well as piecework agreements and payment summaries.  In the interests of fairness, the Tribunal considers that it is not reasonable to overlook the extensive evidence provided that supports the applicant’s case that he was remunerated for the specified work he has undertaken in regional postcodes.

14. Having carefully considered all the evidence before it, the Tribunal is satisfied that overall the evidence indicates that the applicant has been remunerated for the specified work he has undertaken in regional postcodes in accordance with the relevant Australian legislation and awards, as prescribed in cl.417.211(6)(e).

    Conclusion

15. Therefore, the applicant satisfies cl.417.211(6).

16. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

    DECISION

17. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

    ·Cl. 417.211(6) of Schedule 2 to the Regulations.

    Rosa Gagliardi

    
    

    Member