Kim (Migration)

[2020] AATA 4066

Kim (Migration) [2020] AATA 4066 (28 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minsu Kim

CASE NUMBER:  1829729

HOME AFFAIRS REFERENCE(S):          BCC2018/3903971

MEMBER:Moira Brophy

DATE:28 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2020 at 4:05pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – no evidence of claimed work – no answer of tribunal’s phone call – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211(5)

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 24 September 2018 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 24 June 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied that that the work described in the Form 1263 Employment Verification and undertaken by the applicant with NQFC Pty Ltd was ‘specified work’ as specified in the relevant legislative instrument, IMMI 17/018.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

5. At the time of the hearing on 28 September 2020 when the Tribunal attempted to contact the applicant on the number provided there was no answer from the applicant. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The Tribunal proceeded to determine the matter on the papers.

6. The applicant is a 33-year-old male from Korea. He came to Australia on a Working Holiday (subclass 417) visa on 25 November 2017. He applied for a Working Holiday (Extension) (subclass 417) visa on 24 June 2018.

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

   Background

8. A TZ 417 visa cannot be granted unless the visa applicant satisfies regulation 417.211(5)(a). Regulation 417.211(5)(a) 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, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

   * specified work means work of a kind specified by the Minister in an instrument in writing for the definition of specified work in sub-item 1225(5) of Schedule 1. A list of specified work definitions can be found in Legislative Instrument “IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia”.

9. The applicant declared they undertook specified work with the following employer/s:

   ABN 35610840741 (NQFC Pty Ltd) from 22 January 2018 to 25 April 2018 in postcode area of 4880.

10. In support of this application the applicant provided to the delegate an Employment verification form 1263. The delegate requested the applicant provide further supporting documentation including a WHM 417 Specified Work Questionnaire, payslips a bank transaction statement for the specified period worked.  They were asked to provide other supporting documentation including employment contracts, piece work agreements, deduction agreements, payment summaries, tax statements and superannuation statements.

11. In support of this applicant the following documents were provided to the Department:

    ·     Completed WHM 417 Specified work questionnaire

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant satisfies the criteria in cl.417.211(5). Essentially the enquiry is whether the applicant was performing the requisite specified work in regional Australia during the relevant period, and if so, was he properly remunerated for that work.

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

13. 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 Working Holiday Visa Definition of Specified Work and Regional Australia (sub item 1225(5).

14. The applicant said he had undertaken the described work in the Mareeba, Queensland area (postcode 488) from 22 January 2018 to 25 April 2018. This evidence was not corroborated by any other evidence.

15. The Tribunal was mindful of the Australian New Zealand Standard Industrial Classification (ANZSIC) in determining whether the work undertaken by the applicant was specified work for the purposes of satisfying the definition in 1225(5) of Schedule 1. In his application the applicant had referred to the work as ‘spading bananas.’ The delegate determined he was unable to find this work as described by the applicant fell within the definition of specified work in IMMI 17/18. 

16. The Tribunal considered the evidence provided and determined that without any further evidence as to work he did, the period he worked for, the remuneration he received it was not able to find the applicant has carried out a period of specified work in regional Australia as the holder of a Subclass 417 visa.

17. Clause 417.211(5)(a) is therefore not met.

18. While the applicant has stated he worked in the period from 22 January 2018 to 25 April 2018 without any corroborative evidence, the Tribunal is not satisfied that the total period of the work carried out was at least equivalent to three months full-time work.

19. Clause 417.211(5) (b) is therefore not met.

20. Therefore, on the evidence before it, the Tribunal is not able to find the applicant carried out specified work in regional Australia for a total period of at least three months as the holder of a working holiday visa.

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

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

    DECISION

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

    Moira Brophy

    
    

    Member