Jalandoni (Migration)

Jalandoni (Migration) [2022] AATA 1879 (2 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Celia Marie Yaun Jalandoni
REPRESENTATIVE:  Mr Yizhen Zhao (MARN: 1577120)
CASE NUMBER:  1914498
HOME AFFAIRS REFERENCE(S):          BCC2018/6195209
MEMBER:Warren Stooke AM
DATE:2 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 2 June 2022 at 6:32pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) –position of Food Service Assistant – full-time work experience in a specified regional area – residence in a regional area – limited total earnings – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 887.111, 887.212, 887.213
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2019 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 16 January 2019. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 887.213 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had undertaken at least 35 hours per week of work for the 12 months period within the qualifying period in a specified regional area of Australia.
The applicant appeared before the Tribunal on 5 May 2022 to give evidence and present arguments.
The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood the main point of the decision was that she was not able to work full-time of 35 hours for one year.
The applicant stated that she provided a copy of the delegate’s decision to the Tribunal with her application for review.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant has met the requirements of cl.887.213 of at least 12 months of full-time work in a regional area prior to application for the 887 Visa.
The applicant provided evidence that she arrived in Australia on 14 January 2015.
At the time of the lodgement of the applicant’s application, on 16 January 2019, the residential address of the applicant was Epping, a metropolitan suburb of Melbourne. This information was confirmed by the applicant, at hearing.
The applicant provided evidence that the scope of work undertaken with ISS Facility Services was in Bundorra.
The applicant provided the Department with a Notice of Assessment from the Australian Taxation Office for the financial year ending 30 June 2017 with earnings of $26,726, which was confirmed at hearing.
The applicant advised the Tribunal that she had not submitted any other evidentiary documents to the Tribunal since the delegate’s decision refusal.
The applicant has provided the Department with a Commonwealth bank list of transactions from 20 September 2018 to 21 November 2018 which shows the following deposits from employment with ISS Facility Services:
·03/10/2018 - Salary ISS Health for $1,342.42
·17/10/2018 - Salary ISS Health for $1,506.76
·31/10/2018 - Salary ISS Health for $1,789.95
·14/11/2018 - Salary ISS Health for $1,737.55
The applicant stated that she had earned $40,380.71 from 1 July 2018 to 30 June 2019 and that she was paid $22.52 per hour.
The applicant provided evidence that she has a Bachelor of Science in Chemical Engineering from the Philippines and had undertaken a Certificate III in Health and a Certificate IV in Personal Care Assistance.
The Representative submitted:
“The Client confirms that she was working at the post code 3083 during her subclass 496 Visa periods. She believes that she meets the subclass 887 Visa requirement.
On her subclass 496 Visa Grant Notification, Condition 8549 was imposed, which reads:
“While the visa holder is in Australia, the visa holder must live, study and work only in a designated area of Australia. This means anywhere in Australia except in:
· Sydney, Newcastle and Wollongong in New South Wales
· Brisbane metropolitan area in Queensland”
It was further submitted that in the Regulations of Schedule 2 regarding cl. 887.111(2), the regulations prescribed by the Minister in Instrument – IMMI: 16/044 (that defined the term “specified regional area”) included as a “specified regional area”, the entire state of Victoria.
The applicant provided evidence that the scope of work undertaken with ISS Facility Services was in Bundorra.
Relevant Law
Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
Clause 887.213 requires that, at the time of visa application, the applicant had worked fulltime in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.
Residence in a regional area
Clause 887.212 requires that, at the time of visa application, the applicant had lived in a specified regional area for a total of at least 2 years as the holder of 1 or more specified visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.
The applicant provided the Tribunal with correspondence that attested to the applicant’s work participation with ISS Facility Services, as follows:
“This is to certify that Ms. Celia Marie Jalandoni has been a Permanent Part Time employee at ISS Facility Services in our Victoria branch working as a Food Service Assistant since 24th August 2016. I can confirm that Ms. Jalandoni has worked at the capacity of 38hr per week for no less than 52 weeks during 2016/17 and 2017/18 financial year. Her place of work is Bundoora Centre in Victoria post code 3083.”
The applicant provided evidence that the scope of work undertaken was with ISS Facility Services was in Bundorra, Victoria.
The Tribunal is satisfied that based upon the submissions of the Representative that the applicant meets the subclass 887 Visa requirement of cl. 887.212. In this regard, the Tribunal is satisfied that based upon the applicant’s subclass 496 Visa Grant Notification, that included the imposition of Condition 8549, the applicant has complied with Legislative Instrument - IMMI: 16/044.
The Tribunal finds that the applicant satisfies cl 887.212.
Work in a regional area
Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl 887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.
The applicant stated that in the period from August 2016 to June 2017, her total earnings were $26,726, which the Tribunal does not accept demonstrates for that period of employment that the position is full-time given that the minimum wage from the first pay period commencing on or after 1 July 2016, the national minimum wage was $672.60 per week, or $17.70 per hour [1]. As such, the submitted ATO taxable income of the applicant for the tax year with earnings of $26,720 will equate to 29.03 hours per week, if employed on the minimum wage. Accordingly, the Tribunal is not satisfied that the applicant was engaged in full-time work during this period.
Additionally, the applicant stated at hearing that she was employed with ISS Facility Services for the financial year from 1 July 2017 to 30 June 2018, however, the applicant did not submit evidentially documentation to the Tribunal to support earnings during this period in the form of pay slips, bank account statements of employer credits or the annual Australian Taxation Office assessment for the period. On this basis, the Tribunal is not satisfied that the applicant has met the full-time work requirement given the lack of evidence to support this claim.
Further, the applicant stated at hearing that she earned $40,380.71 from 1 July 2018 to 30 June 2019, which includes a period post the date of application of 16 January 2019. The claim of earnings has not been supported by any documentary evidence in the form of pay slips or bank account deposits for the period up to 16 January 2019.
Whilst the correspondence from ISS Facility Services has claimed that the applicant worked full-time with their organisation at the capacity of 38hr per week for no less than 52 weeks during 2016/17 and 2017/18 financial year, the Tribunal has not been presented with any documentation from ISS Facility Services to corroborate that claim in the form of their payroll records or through a contract of employment stipulating the applicant’s salary or earnings. As such, the Tribunal is not satisfied that adequate information has been provided to support the claim of full-time employment for at least the 1 year month period prior to application.
The Tribunal finds that the applicant does not satisfy cl 887.213.
It follows that the applicant does not satisfy the criteria for the grant of a Subclass 887 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Warren Stooke AM
Member

[2022] AATA 1879

2 June 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction