TSIKAI (Migration)

[2024] AATA 3705

TSIKAI (Migration) [2024] AATA 3705 (26 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms TENDAI TSIKAI

REPRESENTATIVE:  Ms Ranjith Kajaliny

CASE NUMBER:  2301052

HOME AFFAIRS REFERENCE(S):          BCC2022/4348586

MEMBER:Bridget Cullen

DATE:26 August 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 visa:

·cl 408.229 of Schedule 2 to the Regulations.

Statement made on 26 August 2024 at 5:11pm

CATCHWORDS
MIGRATION –Temporary Activity visa – Subclass 408 visa – applicant was in receipt of an offer of employment from a Commonwealth funded aged care service – applicant is in a class of persons specified for the COVID-19 Pandemic event under the relevant Instrument – decision under review remitted  

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 408.229

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 12 January 2023 to refuse to grant the Applicant a Temporary Activity (Class GG) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicant applied for the visa on 17 October 2022. At the time of application, Class GG contained one subclass: Subclass 408 (Temporary Activity). The criteria for a Subclass 408 visa are set out in Part 408 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants must satisfy the common criteria in Subdivision 408.21 and the criteria of one the alternative clauses set out in Subdivision 408.22.

3. The Delegate in this case refused to grant the visa on the basis that the Applicant did not satisfy cl 408.229 of Schedule 2 to the Regulations because the Delegate concluded that the Applicant was not in a class of persons specified in the relevant Instrument. In this case, the relevant Instrument is the Migration (Covid-19 Pandemic Event for Temporary Activity)(Subclass 408) visa) Instument (LIN 22/046) 2022.

4. The Applicant appeared before the Tribunal on 26 August 2024 to give evidence and present arguments.

5. The Applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The various clauses set out in Subdivision 408.22 of Schedule 2 to the Regulations represent alternative pathways to the grant of the visa. One of these clauses must apply to the Applicant for the applicant to meet cl 408.219A, which is an essential requirement for the visa.

8. In this case, the Applicant seeks to satisfy the requirements of cl 408.229 (Australian Government Endorsed Events – Covid-19 Pandemic Event) for purposes of meeting Subdivision 408.22. The Applicant has not claimed to meet cl 408.219A on any other basis.

9. The specific issue in this case is whether, for the purposes of cl 408.229, the Applicant is in a class of persons specified in the relevant Instrument for the purpose of cl 408.229(c). 

10. Section 6 of the relevant Instrument prescribes the classes or persons who are associated with the Covid-19 Pandemic event for purposes of cl 408.229(c):

    6 Class of persons

    (1) For paragraph 408.229(c) of Schedule 2 to the Regulations, an applicant mentioned in subsection (2), (3), (4) or (5) is in a specified class of persons for the event mentioned in section 5.

    (2) An applicant who, at the time of application:

    (a) is in Australia; and

    (b) is working, or in receipt of an offer to work, in Australia; and

    (c) either:

    (i) holds a relevant temporary visa with work rights that is 90 days or less from ceasing to be in effect; or

    (ii) held a relevant temporary visa with work rights that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

    (3) An applicant who, at the time of application:

    (a) last arrived in Australia before 21 February 2022; and

    (b) is in Australia; and

    (c) is working, or in receipt of an offer to work, in Australia; and

    (d) either:

    (i) holds a substantive temporary visa without work rights that is 90 days or less from ceasing to be in effect; or

    (ii) held a substantive temporary visa without work rights that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

    (4) An applicant who, at the time of application:

    (a) is in Australia; and

    (b) is employed by, or in receipt of an offer of employment from a Commonwealth funded aged care service; and

    (c) either:

    (i) holds a relevant temporary visa that is 90 days or less from ceasing to be in effect; or

    (ii) held a relevant temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

    (5) An applicant who, at the time of application:

    (a) is in Australia; and

    (b) either:

    (i) holds a Subclass 403 Seasonal Worker visa that is 90 days or less from ceasing to be in effect; or

    (ii) held a Subclass 403 Seasonal Worker visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made; and

    (c) is employed by, or in receipt of an offer of employment from, an approved employer under the Seasonal Worker Program.

11. The Applicant applied for the visa on 17 October 2022. At the time of Application, the Applicant held an FA subclass 600 visa that did not permit work in Australia, as it was subject to Condition 8101 (no work). The Applicant last arrived in Australia on 26 August 2022. The Applicant was onshore at the time of application.

12. The Applicant seeks to satisfy Subsection 4 of Section 6 of the Relevant Instrument. Subsection (4) applies to an applicant who, at the time of application, is in Australia; and is employed by, or in receipt of an offer of employment from a Commonwealth funded aged care service; and either: holds a relevant temporary visa that is 90 days or less from ceasing to be in effect; or held a relevant temporary visa that ceased to be in effect not more than 28 days before the application for a Subclass 408 visa is made.

13. In this regard, the Applicant has provided evidence that, at the time of application, she was in receipt of an offer of employment from a Commonwealth funded aged care service.

14. The Applicant’s offer of employment was from the Franciscan Sisters of the Heart of Jesus Home, to be employed as an Assistant in Nursing pursuant to the Francis of Assisi Home – Australian Nursing Federation Workplace Agreement 2017 Award. The Francis of Assisi Home is an aged care provider based in West Mackay, Queensland.

15. At the time of Application, Departmental records indicate that the Applicant’s FA subclass 600 visa expired on 26 December 2022. As such, at the time of application on 17 October 2022, the Applicant held a relevant temporary visa that was 90 days or less from ceasing to be in effect.

16. Therefore, the Tribunal is satisfied that the Applicant meets Subsection 4 of Section 6 of the relevant Instrument, and the Tribunal is satisfied that the Applicant is in a class of persons specified for the COVID-19 Pandemic event under the relevant Instrument. It follows that the Applicant meets cl 408.229(c) of Schedule 2 to the Regulations.

17. In light of the above findings, the Tribunal is satisfied that cl 408.229 applies to the Applicant.

18. Accordingly, cl 408.219A is met.

    DECISION

19. The Tribunal remits the application for a Temporary Activity (Class GG) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 408 (Temporary Activity) visa:

    ·cl 408.229 of Schedule 2 to the Regulations.

    Bridget Cullen
    Senior Member