Huang (Migration)

[2020] AATA 2819

Huang (Migration) [2020] AATA 2819 (6 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Yu-han HUANG

CASE NUMBER:  1905746

HOME AFFAIRS REFERENCE(S):          BCC2018/4614417

MEMBER:Michael Judd

DATE:6 March 2020

PLACE OF DECISION:  Perth

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 (5) of Schedule 2 to the Regulations.

Statement made on 06 March 2020 at 1:51pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – remuneration in accordance with relevant Australian legislation and awards – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs on 21 May 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 February 2019. 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 (5).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211 (5) because the applicant did not provide sufficient evidence that they had been appropriately renumerated for their specified employment with Micaya Enterprises Pty Ltd in regional postcode 6084.

4. On 3 December 2018 the applicant was asked by the delegate to provide additional information within 28 days and a response was received on 23 December 2018, however this did not contain all of the requested information.  

5. For reasons outlined below, the Tribunal has decided it unnecessary to convene a hearing to receive evidence and hear arguments.  The Tribunal has decided that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has provided sufficient evidence that she was  appropriately renumerated for the specified work with the named entity.   

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

7. 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. The applicable instrument is IMMI 17/018.

8. The review applicant has provided the Tribunal with the following documentary evidence:

   a.Working Holiday Visa: Employment Verification form (form 1263);

   b.Copies of payslips from Micaya Enterprises Pty Ltd for the period 22 May 2018 to 7 October 2018;

   c.Westpac Bank statements from 20 March 2018 – 20 September 2018 showing regular deposits from an unknown bank account. The majority of these deposits match the information from the payslips.

9. Having considered these further documents cumulatively, the Tribunal makes the  following findings with respect to the criterion in Clause 417.211 for the reasons outlined:

   a.That the applicant has carried out work in Australia as the holder of a Subclass 417 visa;

   b.That work (whether on a full-time, part-time or casual basis) was the equivalent of at least 3 months’ full-time work;

   c.That it was ‘specified work’ as set out in the instrument;

   d.it was carried out in regional Australia as set out in the instrument;

   e.the applicant was remunerated in accordance with relevant Australian legislation and awards.

10. Therefore, the applicant satisfies cl.417.211(5).

11. 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

12. 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(5) of Schedule 2 to the Regulations.

    Michael Judd
    Member