Park (Migration)

[2018] AATA 4792

Park (Migration) [2018] AATA 4792 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms HYEJI PARK

CASE NUMBER:  1801361

DIBP REFERENCE(S):  BCC2017/3089850

MEMBER:Adrienne Millbank

DATE:15 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

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

Statement made on 15 October 2018 at 4:44pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) ( Class TZ) – Subclass 417 (Working Holiday) visa – misleading information – form incorrectly submitted – regional work – employed by one employer – payslips provided – credibility – consistent and detailed information – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 472.211, 417.221

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 3 January 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 27 August 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). Relevantly to this case, they include cl.417.221 and 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) and therefore could not meet cl.417.221. The applicant did not respond to a letter requesting further evidence of regional work, sent on 25 September 2017, and the Delegate was not satisfied that the applicant had completed, while on her first Working Holiday visa, a 3 month period of specified work in a regional area in Australia.

4. The applicant appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant had completed the three month period of specified work in a regional area, as required, while on her Working Holiday visa.  

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

8. 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.

9. Further information and evidence was provided to the Tribunal than was available to the Delegate, including:

   ·    a letter from the applicant’s employer advising that they had provided the wrong ABN numbers, clarifying that the applicant was in fact employed by one employer during her five months of regional work, and providing the correct ABN number;

   ·    Weekly payslips covering the period 18 October 2016 – 10 March 2017, which show the applicant was paid at an hourly rate of $22 with higher rates during holiday periods; and

   ·    Statements of transactions showing that her pay during the period of her regional farm work was deposited directly each week into her personal bank account.

10. At hearing, the applicant explained that on her arrival in Australia she went directly to Boonah, Queensland, where the daughter of her ‘aunt’ (a family friend) in South Korea was living and working. She stated that this week was her introduction to Australia, and that she obtained her later regional employment through Kalfresh in Boonah with the assistance of this friend, with whom she stayed. She confirmed that she had only one employer, Kalfresh, for the five months of her regional work. She advised that she understood she only needed to do three months in a regional area for the purpose a visa extension, but stated that she was happy with her employment, packing vegetables in Boonah.

11. The Tribunal asked the applicant why she had not filled in her form 1263 completely, why she provided no response to the question ‘Were you paid for this work?’  The applicant stated that she was unable to explain why she did not fill in this form completely, apart from her lack of English skills. She confirmed that there was no period during her work, packing vegetables for Kalfresh at Boonah, when she was not paid at least $22 an hour. She advised that she was paid at an hourly rate for a set number of vegetables to be packed, and that if she exceeded this number, she was paid more. She advised that she was happy with her rate of pay, and that she was very happy on occasions such as Christmas Eve, when she received higher hourly rates.   

12. The applicant was apologetic at hearing that she did not respond to the Delegate’s request for further information. She explained that she had two email addresses, and that she overlooked the email. She stated that she regretted this oversight, and had never intended to provide misleading information in order to remain in Australia.

13. The applicant provided consistent and detailed information, in an open and straightforward manner, regarding her regional and other employment in Australia. The Tribunal found her to be a credible witness, and accepted her testimony.

14. The applicant advised that she intends in the future to apply for another temporary visa, a Student visa, and to study English.

15. Having considered the evidence and the circumstances of the applicant, the Tribunal is satisfied that she has carried out work in Australia as the holder of a Subclass 417 visa; that this work was for five months full-time; that it was ‘specified work’ as set out in the instrument; that it was in regional Australia as set out in the instrument; and that the applicant was remunerated in accordance with the relevant Australian legislation and awards. 

16. Therefore, the applicant satisfies cl.417.211(5). 

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

    DECISION

18. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

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

    Adrienne Millbank

    
    

    Member