Fong (Migration)

This matter concerned an application for review of a delegate's decision to refuse a Working Holiday (Temporary) (Class TZ) visa, subclass 417. The applicant, Mr. Ka Ho Fong, sought review of the decision made by a delegate of the Minister for Home Affairs on 20 July 2021, which refused to grant the visa on the basis that the applicant had not been remunerated in accordance with relevant Australian legislation and awards. The Tribunal considered the applicant's claims and evidence presented during a hearing on 15 March 2022.

The primary legal issue before the Tribunal was whether the applicant had met the requirements of clause 417.211(6) of Schedule 2 to the Migration Regulations 1994 (Cth). Specifically, the Tribunal had to determine if the applicant had been remunerated for the specified work undertaken in regional Australia in accordance with relevant legislation and awards, as required by clause 417.211(6)(e). While there was no dispute that the applicant had completed the requisite period of work, the delegate's concern centred on the adequacy of the evidence demonstrating remuneration.

The Tribunal reasoned that while bank transactions alone might not be definitive proof of remuneration in accordance with legislation and awards, disregarding payslips and other supporting documentation from the employer, Abig Farming PTY LTD, would imply these documents were falsely generated. The Tribunal found no evidence to support such a conclusion and placed significant weight on the payslips, which indicated tax and superannuation payments. The Tribunal noted that the delegate's own assessment suggested the applicant "may have completed specified work" and considered it unreasonable to overlook the extensive evidence supporting the applicant's claim of remuneration for work conducted in regional postcodes.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the applicant be considered to meet the criteria under clause 417.211(6) of Schedule 2 to the Regulations.