Kim (Migration)

[2021] AATA 2145

Kim (Migration) [2021] AATA 2145 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hwan Kim

CASE NUMBER:  1906332

HOME AFFAIRS REFERENCE(S):          BCC2019/598610

MEMBER:Luke Hardy

DATE:13 April 2021

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)(c) of Schedule 2 to the Regulations.

Statement made on 13 April 2021 at 2:43pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – evidence provided regarding specified regional work– period of three months full time work requirement met –work conducted in regional Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 417.111, 417.211, 417.221

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 7 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 23 December 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)(c).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5)(c) and therefore went on not to meet cl.417.221(a) and thus cl.417.221 in its entirety because although he provided sufficient evidence of having undertaken “specified work,” he did not provide sufficient evidence of having undertaken it for the minimum period of three months and at a rate in accordance with relevant Australian legislation and awards.

4. The relevant Legal Instrument at the time was “IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia” (Period 14/08/2017- current)”

5. Specifically, the delegate made the following findings:

   On 23 December 2018, the applicant applied for a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa.

   The applicant declared [he] undertook specified work with the following employers:

   J&JUB HARVEST PTY LTD (ABN: 35 622 788 327) from 20/08/2018 to 18/11/2018 in the 4518 regional postcode area

   KLEEN HOLDINGS PTY LTD (ABN: 84 619 560 244) from 05/06/2018 to 19/08/2018 in the 4518 regional postcode area

   In support of the application the applicant provided:

   • A payslip from J&JUB HARVEST PTY LTD

   • A completed and signed Employment verification form 1263 from J&JUB HARVEST PTY LTD

   • A completed and signed Employment verification form 1263 from KLEEN HOLDINGS PTY LTD

   On 5 February 2019, the applicant was requested to provide more information in relation to [his] application.

   Evidence requested included:

   A completed ‘WHM Specified Work Questionnaire’
   Payslips
   Bank transaction statement for the specified work period claimed

   Evidence to support the applicant’s claims that [he has] worked at least 3 months full-time and [has] been remunerated in accordance with relevant Australian legislation and awards by [his] nominated employer, for the periods of employment [he has] listed on [his] application form, could have been:

   A completed and signed Employment verification form 1263
   Piece rate agreements
   Deduction agreements
   Employment contracts
   Payment Summary
   Tax Statement
   Superannuation Statement

   The applicant was given 28 days to provide this information to the Department.

   On 7 February 2019, the applicant provided the following information:

   • 3 payslips from J&JUB HARVEST PTY LTD

   • A completed ‘WHM Specified Work Questionnaire’ regarding J&JUB HARVEST PTY LTD

   To assess whether or not the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards, I have taken into account all of the information provided by the applicant.

   I give the payslips and signed employment verification forms little weight as evidence of specified work and adequate remuneration as there are no supporting bank statements to verify that the applicant was paid.

   Therefore, I am not satisfied that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards, as prescribed in Regulation 417.211(5)(c).

   As the applicant fails to satisfy Regulation 417.211(5)(c), the applicant fails to satisfy Regulation 417.211(5) and thereby Regulation 417.211 in its entirety. As the applicant does not meet Regulation 417.211, they fail to meet Regulation 417.221(2)(a) and thereby Regulation 417.221 in its entirety.

6. On a reading of the three payslips, the delegate did not find that the applicant was being paid at a rate that was not in accordance with relevant Australian legislation and awards. The issue was whether the applicant performed the specified work for the claimed employer(s) for the requisite period of three or more months.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant performed at least the equivalent of three months of specified full-time work.

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

9. 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.

10. On 18 March 2019, the applicant submitted to the Tribunal his bank statements covering well in excess of three months of fortnightly payments from J & Jubb Harvest Pty Ltd and Kleen Holdings for performing the cumulative equivalent of three months’ full-time work as a “strawberry picker,” which is “specified work” for the purposes of the instrument in force at the time, in the “eligible” Queensland postcode area of 4518, which is “regional Australia” for the purposes of the same instrument.

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

12. 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

13. 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)(c) of Schedule 2 to the Regulations.

    Luke Hardy

    
    

    Member