Okwier Oletho (Migration)

[2024] AATA 1455

Okwier Oletho (Migration) [2024] AATA 1455 (6 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emmanuel Okwier Oletho

CASE NUMBER:  2304945

HOME AFFAIRS REFERENCE(S):          BCC2020/554881

MEMBER:Moira Brophy

DATE:6 February 2024

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 06 February 2024 at 4:44pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – second Working Holiday visa – 3 months of ‘specified work in regional Australia’ – Community Liaison Officer at a Migrant Centre – ‘specified work’ – IMMI LIN20/103 – regional postcode – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.211, 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 Home Affairs on 21 March 2023 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 February 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 417.211(5) which requires an applicant for a second Working Holiday visa to have carried out at least three months of ‘specified work in regional Australia’ while being the holder of a first Working Holiday visa and to have been remunerated for that work in accordance with relevant Australian legislation and awards.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the applicant had not carried out a three-month period of specified work in a regional area of Australia.

4. The applicant appeared before the Tribunal by way of a video conference on 5 February 2024 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has carried out three months of specified work in regional Australia.

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

7. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified specified work in regional Australia for a total period of at least 3 months as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘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 LIN20/103.

   FINDINGS

8. The Tribunal has considered all of the information on the Tribunal file, information contained in the Department file and the oral evidence received from the applicant at the hearing. Based on the information before it (that was discussed with the visa applicant at the hearing), the Tribunal finds that prior to lodging the application the applicant carried out employment with The Migrant Centre as a Community Liaison Officer with duties including event management, interpreting and document translation, building awareness of domestic and family violence in CALD communities, and supporting TMC’s Settlement Engagement Transition Support Program.

9. The Tribunal finds that the visa applicant’s work for the Migrant Centre does not count toward the overall total period of specified work because it was not specified work as defined. Specified work is defined as plant and animal cultivation, fishing and pearling, tree faring and felling, mining and construction in Legislative Instrument IMMI LIN 20/103.

10. The Tribunal further finds the work carried out was work undertaken at postcode 4215 which is not a regional postcode as specified in the instrument.

11. Therefore, the applicant has not carried out at least three months of specified work. He does not satisfy cl.417.211(5) which is a necessary criterion for the grant of the visa.

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

    DECISION

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

    Moira Brophy

    
    

    Member