Keogh (Migration)

[2020] AATA 4337

Keogh (Migration) [2020] AATA 4337 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Georgia Keogh

CASE NUMBER:  1906191

HOME AFFAIRS REFERENCE(S):          BCC2018/4857627

MEMBER:Catherine Carney-Orsborn

DATE:13 October 2020

PLACE OF DECISION:  Sydney

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)(a) of Schedule 2 to the Regulations.

Statement made on 13 October 2020 at 11:38am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – in Australia at time of application – regulations require being in Australia at time of grant – returned to home country on bridging visa to organise father’s funeral – unable to return because of COVID-19 travel restrictions – specified work in regional Australia – financial records – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5)(a)

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 6 March 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 3 November 2018. 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)(a).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because she did not satisfy cl.417.211(5)(a) and insufficient evidence was provided.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant did the specified work.

7. A further issue that arises is cl.417.412 which is set out below.

8. 417.412  

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

   (a)  if the applicant is in Australia at the time of application, the applicant must be in Australia at the time of grant; or

   (b)  if the applicant is outside Australia at the time of application, the applicant must be outside Australia at the time of grant.

9. As the applicant is currently out of Australia it appears, she could not satisfy cl.417.412 however the applicant has provided information which indicates she left Australia in October 2019 on a bridging visa which allowed her to re-enter Australia.  The applicant provided information which indicates her father passed away in November 2019.  She was then, after organising her father’s funeral and other estate issues unable to return to Australia due to the COVID pandemic.

10. The applicant has indicated that she would seek to re-enter Australia when the borders re-open and so be able to be granted the 417 visa.

11. On the above information the Tribunal is satisfied that the applicant would be able to satisfy cl. 417.412 as she may be able to re enter Australia once the COVID crisis ends.

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

12. 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.

13. The applicant provided a large amount of further material to the Tribunal.  This included payslips, tax invoices, copies of her bank statement which showed the same amounts being deposited into her account and work entitlement card from “Madec”.

14. PAYG payment summary was provided and the employer provided a breakdown of days worked.

15. On the evidence before it the Tribunal is satisfied that the applicant worked at least 3 months full-time.

16. The Tribunal is satisfied the applicant worked in Shepparton.  The bank statements show deposits made at Shepparton.  The Tribunal is satisfied she worked in a regional area as a fruit packer/picker.

17. The Tribunal on the evidence before it is satisfied that the applicant has carried out work in Australia as the holder of a 417 visa.  The payslips, tax records and bank statements indicate the work was on a full-time basis.  It was in a regional area specified in the instrument and was specified work.  The Tribunal is satisfied on the work contract and bank statements that the work was remunerated in accordance with the relevant Australian awards.

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

19. 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

20. 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.

    Catherine Carney-Orsborn

    
    

    Member