LENGELE (Migration)

The Administrative Appeals Tribunal considered the case of an applicant seeking review of a decision not to grant a Working Holiday (Temporary) (Class TZ) visa, subclass 417. The central dispute concerned whether the applicant had completed the required six months of specified work in regional Australia. The applicant's eligibility for the visa depended on satisfying clause 417.211(6) of the Migration Regulations 1994, which stipulated that the work must have been carried out on or after 1 July 2019, while holding a specific subclass 417 visa or a bridging visa, and that the applicant must have been remunerated in accordance with Australian legislation and awards. The definition of "specified work" and "regional Australia" was governed by an instrument made by the Minister, LIN 20/182.

The Tribunal was required to determine whether the applicant had fulfilled the criterion of undertaking at least six months of specified work in regional Australia. This involved assessing the nature of the work performed for four different employers between October 2019 and November 2020. Specifically, the Tribunal had to consider whether work undertaken for Mt Barnett Roadhouse No 2 Unit Trust, described by the applicant as including counter handling, kitchen management, and stock management, constituted "hospitality work" and was therefore excluded from the definition of specified work under LIN 20/182. Furthermore, the Tribunal needed to assess the impact of the COVID-19 pandemic and associated lockdowns on the applicant's ability to undertake the required work, and whether periods described as "help exchanges" could be considered as fulfilling the specified work requirement.

In its reasoning, the Tribunal gave significant weight to the applicant's own description of his duties at Mt Barnett Roadhouse, which included tasks clearly related to hospitality, and his oral testimony that he considered these tasks to be hospitality-related. The Tribunal found that this work did not meet the definition of specified work. Regarding the COVID-19 pandemic, while acknowledging the disruptions caused by lockdowns, the Tribunal concluded that this fact alone did not excuse the applicant from meeting the visa criteria. The Tribunal also considered the applicant's participation in "help exchanges" but found that the applicant's explanation for not seeking paid work during these periods was unsubstantiated and speculative. The Tribunal was not satisfied that the applicant had completed the requisite six months of specified work, nor that the "help exchanges" constituted such work.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa, subclass 417, as the applicant failed to satisfy clause 417.211(6) of the Migration Regulations 1994.