Karringten (Migration)

[2019] AATA 1450

Karringten (Migration) [2019] AATA 1450 (9 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Caashia Karringten

CASE NUMBER:  1702668

DIBP REFERENCE(S):  BCC2016/3448154

MEMBER:Mary Urquhart

DATE:9 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 09 January 2019 at 11:15am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – 3 months full-time specified work in regional Australia – employment completed prior to visa application – evidence of absences from Australia for sports competitions – movements records – hearing postponement requests – applicant onshore more than the maximum 24 months – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 362B
Migration Regulations 1994, Schedule 2, cl 600.211

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 Immigration on 6 February 2017 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 17 October 2016. 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.417.211because they were not satisfied that the applicant has completed an equivalent to at least 3 months full-time specified regional work as specified in Regulation 417.211(5)(b).

4. The review hearing was set down for 4 October 2018 and an invitation to attend a hearing was sent to the applicant on 13 August 2018. On 20 August 2018 the Tribunal received a request for a postponement of the hearing on the basis that the applicant is a member of the Canadian women’s national field hockey team and will be out of Australia travelling with the team from “18 August to December 22, 2019”.

5. On 20 August 2018 the Tribunal  wrote to the applicant inviting her to provide information as follows:

   • Supporting documentation regarding reasons for requesting a hearing

   postponement.

   • Examples of this may be an airline ticket, confirmed itinerary, evidence she is a member of Canadian Women’s National Field Hockey Team.

6. On 22 August 2018 the applicant responded providing an official letter indicating that she is “a member of the Canadian women's national field hockey team and that she is required to train with the team and remain part of the program.” No details of dates, in particular, her return on 22 December 2019 were provided however the Tribunal granted the first request for postponement.

7. As no evidence supporting claimed dates had been provided the applicant was invited on 4 October 2018 to attend a hearing on 7 December 2018.

8. On 5 October 2018 the Tribunal  received a request for a postponement on the basis  the applicant was training with the national field hockey team for Olympic qualifiers and not due to return to Australia until 22 December “2018”.

9. On 8 October 2018 the Tribunal wrote to the applicant indicating that it accepts that she is a member of the Canadian field hockey team. However the Tribunal  invited the applicant to provide the following information in writing in support of her request to have the hearing postponed:

   ·     Verification that she is overseas and not returning until 22 December 2018, for example an airline ticket.

   ·     A copy of the team's training itinerary with dates for the Tribunal to consider.

10. On 19 October 2018 the applicant responded. She provided an airline ticket and passport stamp showing that she had arrived in Europe. She also attached a proposed travel and training schedule. She explained that return flights had not yet been booked.

11. The Tribunal records that as movement checks indicate the applicant was in Australia from 13 November 2018 she would have been available to attend the hearing on 7 December 2018 had she advised the Tribunal of her return date.

12. In any event at the time the Tribunal granted the postponement.

13. On 7 December 2018 the Tribunal again invited the applicant to attend a hearing on 9 January 2019.

14. On 24 December 2018 the applicant sought a postponement of the 9 January 2019 hearing on the basis that she is in China competing with the Canadian national field hockey team.

15. A check of the applicant’s movement records indicated that she returned to Australia on 13 November 2018 and remained in Australia at the time of the postponement request.

16. The Tribunal refused the request for postponement.

17. On 8 January 2019 the Tribunal was advised by the Department in an email that Ms Karringten recently applied for her 5th Bridging visa B. It was stated that she wishes to leave Australia for a stated period of 7 months; departing on 9 January 2019.

18. The email indicated the applicant had made an excessive number of BVB applications which prompted closer scrutiny of her case. It was confirmed that the applicant has been onshore for longer than the legislated maximum of 24 months for a Working Holiday visa holder having first arrived on 22 November 2015.

19. On 9 January 2019 the Department provided information that the applicant was contacted prior to the hearing and advised of the consequences of her situation and further advised that the validity period of her BVB would be reduced to 3 months.

20. On 9 January 2019 the applicant did not attend the scheduled hearing or contact the Tribunal to explain her failure to attend.

21. When the hearing invitation was sent it put the applicant on notice that if she failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before it.

22. In these circumstances, the Tribunal has decided, pursuant to s. 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.

23. No further information in support of the application for review was given by the applicant in her application for review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in this case is whether the applicant had completed 88 days of employment at the time of lodging her Working Holiday (Extension) visa.

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

26. 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.

27. Clause 417.211(5) states:

    If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that:

    (a) the applicant has carried out (whether on a full-time, pad-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

    (b) the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

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

    *Under policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year.

28. On 17 October 2016, the applicant applied for a Working Holiday (Extension) visa.

29. The applicant declared that she undertook specified work with Nareen Station PTY LTD (ABN: 69071793621,) from 8 August 2016 to 14 November 2016 in the 3315 regional postcode area.

30. The following supporting Information was provided:

    ·     completed Form 1263 Employment Verification Form

    ·     payslips covering employment from 8 August 2016 to 13 November 2016

31. The Department file reveals that on 6 January 2016 the applicant was advised that the Department can only take into consideration the period of declared work that has been completed up until the date of lodgment.

32. The date of lodgment was 17 October 2016.

33. Based on this information the maximum amount of days the applicant could have worked is 71 days.

34. The applicant was invited to comment on these findings. On 27 January 2017 further information was received in the form of a support letter from the employer Nareen Station PTY LTD. This evidence was considered by the delegate who found it did not confirm the dates of employment.

35. No further independent evidence was submitted to the Tribunal.

36. Therefore there is no evidence the applicant completed 88 days of employment at time of lodging their application for a Working Holiday (Extension) visa.

37. Accordingly the Tribunal is not satisfied that the applicant has completed an equivalent to at least 3 months full-time specified regional work as specified in Regulation 417.211(5) (b). As the applicant does not meet regulation 417.211(5) (b), the applicant fails to satisfy Regulation 417.211(5) in its entirety.

38. Therefore, the applicant does not satisfy cl.417.211 (5). 

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

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Mary Urquhart

    
    

    Member