Lin (Migration)

[2018] AATA 4909

Lin (Migration) [2018] AATA 4909 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hsinchi Lin

CASE NUMBER:  1720685

DIBP REFERENCE(S):  BCC2017/2148511

MEMBER:Brendan Darcy

DATE:26 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 October 2018 at 9:49am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – work in regional Australia – no evidence submitted to support claims – applicant failed to attend hearing – decision under review affirmed

LEGISLATION
Marriage Act 1961 (Cth) s 65
Migration Regulations 1994 (Cth) r 2.03A 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 on 15 August 2017 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, a citizen of the Republic of China (Taiwan), applied for the visa on 18 June 2017. 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).

3. Relevantly to this case, they include cl.417.211(5).

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211 in its entirety because the applicant’s three months specified work in regional Australia cannot be verified. In this regard, the Tribunal notes the delegate wrote to the applicant to provide this information to the Department and that he was given 28 days in which to do so; however the applicant did not respond.

5. On 8 October 2018 the Tribunal invited the applicant to attend a scheduled hearing on 25 October 2018 at 11.30 AM by email. Two SMS reminder were forwarded to the applicant’s mobile phone on 18 and 24 October 2018 respectively.  The Tribunal received no requests for postponements or any submissions at all either from the applicant or on his behalf prior to the hearing.

6. The applicant did not appear before the Tribunal at the schedule date and time. The hearing was extended for a further ten minutes to allow any late attendance or postponement requests; however the applicant did not attend or provide any requests for adjournment or postponement and the hearing was closed.

7. The Tribunal waited until the close of business for any requests for a further scheduled hearing, including a medical certificate. No submissions or requests were forwarded to the Tribunal, either from the applicant or on his behalf, at all.

8. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant comments or response and information as well as sufficient time to take steps to satisfy the regulatory criteria.

9. Accordingly it has proceeded in its decision making responsibility in accordance with section 362B, as the Tribunal is not required to delay making a decision indefinitely when the applicant does not appear before the Tribunal on the day, time and place at which the applicant had been scheduled to appear.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant completed 3 months specified work in regional Australia.

12. Clause 417.211(5) requires among other things that at the time of the visa application the applicant had carried out specified work in regional Australia for a total period of at least 3 months full-time work as the holder of a Working Holiday visa and was remunerated for that work in accordance with the relevant Australian legislation and awards.

13. 'Specified work' and 'regional Australia' are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111.

14. Relevant to this case “regional Australia” includes the Victorian postcode 3500 and 'specified work' includes:

    ·plant and animal cultivation

    ·the harvesting and/or packing of fruit and vegetable crops

    ·pruning and trimming vines and trees

    ·general maintenance crop work

    ·cultivating or propagating plants, fungi or their products or parts immediate processing of plant products

    ·maintaining animals for the purpose of selling them or their bodily produce including natural increase

    ·immediate processing of animal products including shearing, butchery, packing and tanning

    ·manufacturing dairy produce from raw material

15. The term 'work' is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration. The expression, '3 months' is not defined in the Regulations; however, Department guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. Further, these guidelines specify that the work should be the equivalent of full time work for that employer, that region and that industry.

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

16. On 30 June 2017, the applicant was asked to provide evidence of specified work completed while on the applicant’s first Working Holiday visa. Specifically evidence requested included: employment verification Form 1263; bank statements covering the period of specified work; WHM specified work questionnaire; payslips, group certificates or tax returns; bus tickets, accommodation or general receipts in the applicant’s name; and employer references on official letterhead.

17. Despite being given 28 days to provide such information to the Department the applicant did not responded either within the request time frame or provides a request for additional time. On 15 August 2017, the delegates proceeded in making its decision not to grant a further 417 visa as the delegate could not be satisfied the applicant met regulation 417.211(5).

18. The applicant has not provided any evidence in support of this application for review. Neither did he attend the Tribunal hearing. The Tribunal notes there is no independent evidence on the Department file concerning the applicant and the requirement to undertake 3 months specified work in the agriculture, forestry and fishing industry on a grape farm, as claimed in the visa application.

19. While the applicant claims he did this work in his visa application, he has not provided any independent evidence to support this, either to the Department or the Tribunal.

20. The Tribunal considers that the applicant has been and remains well placed to provide supporting evidence in regards to his claim that he undertook the specified work. He has not done so and the Tribunal is not satisfied that he has undertaken the 3 months specified work in regional Australia.

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

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

23. The Tribunal has no discretion in this matter and for the reasons outlined above finds that he does not meet the criteria for the grant of the visa.

    DECISION

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

    Brendan Darcy

    
    

    Member