Kim (Migration)

[2018] AATA 1445

Kim (Migration) [2018] AATA 1445 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hyun Seok Kim

CASE NUMBER:  1710807

DIBP REFERENCE(S):  BCC2017/1062125

MEMBER:Ian Berry

DATE:5 April 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

·cl.417.211(5) of Schedule 2 to the Regulations

Statement made on 05 April 2018 at 1:15pm

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Piecework agreement – Payslips to the agreement

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 417.211

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 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 17 March 2017. The delegate refused to grant the visa on 8 May 2017.

2. The delegate made the decision on the basis that evidence of the work undertaken by the applicant appeared to be piecework but a piecework agreement was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 8 February 2018 the Tribunal received a piecework agreement dated 25 November 2016 between the applicant and H2 Labour Hire Pty Ltd, payslips pursuant to that agreement and Sweets Strawberry Runners Pty Ltd. In light of the new evidence received, the Tribunal is satisfied that the criterion as set out in 417.211(5) namely:

   a.The applicant has carried out the periods of specified work, in excess of 94 days;

   b.The work was carried out in regional Australia;

   c.The applicant was the holder of the 417 visa;

   d.The applicant was remunerated in accordance with the piece work agreement.

4. The Tribunal finds the applicant has met cl.417.211(5) of Schedule 2 to the Regulations, and has concluded that the matter should be remitted for reconsideration.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

   ·cl.417.211(5) of Schedule 2 to the Regulations

   Ian Berry
   Member