Wu (Migration)

[2020] AATA 6057

Wu (Migration) [2020] AATA 6057 (8 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Boyu Wu

CASE NUMBER:  1815726

DIBP REFERENCE(S):  BCC2017/4887093

MEMBER:Louise Nicholls

DATE:8 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Work and Holiday (Temporary) (Class US) visa.

Statement made on 08 December 2020 at 3:45pm

CATCHWORDS

MIGRATION – Work and Holiday (Temporary) (Class US) –subclass 462 Visa –specified regional work requirement not met– applicant had been granted a student visa – did not have an intention to spend a holiday in Australia –decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03.1.15, Schedule 2, cls 462.218, 462.221A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of the People’s Republic of China (China) and is 26 years old. She first arrived in Australia on 11 July 2015 as the holder of a visit visa. She departed on 19 August 2015.

2. She later returned as the holder of a Work and Holiday visa on 19 March 2017. She applied for a second Work and Holiday (Temporary) (Class US) Subclass 462 visa on 20 December 2017.

3. On 3 May 2018 the delegate refused to grant the applicant a Work and Holiday visa under s.65 of the Migration Act 1958 (the Act) on the basis that the applicant did not meet cl.462.218(b) because the delegate was not satisfied that after 18 November 2016 the applicant had carried out 3 months of specified Subclass 462 work as the holder of the visa. This is a requirement for the grant of a second work and holiday visa.

4. This is an application for review of that decision, and it was made on 30 May 2018.

5. The applicant appeared before the Tribunal by teleconference on 1 December 2020 to give evidence and present arguments. The Tribunal discussed the issue raised by the delegate, that is, whether the applicant had carried out the 3 months of required work but also discussed the issue of whether she had a genuine intention to spend a holiday in Australia, given the grant of a student visa to her on 11 December 2019.

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

   CONSIDERATION

7. At the time the visa application was lodged Class US contained one subclass, Subclass 462 (Work and Holiday (Temporary)). The criteria for a Subclass 462 visa are set out in Part 462 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

8. The Subclass 462 visa enables young people to holiday and work in Australia and to improve cultural understanding. The visa is only available to citizens of countries with which Australia has a work and holiday arrangement.

9. From 19 November 2016, people who have undertaken ‘specified Subclass 462 work’ for a minimum of 3 months (that is, specified kinds of work in the agriculture or tourism and hospitality industries in specified areas of Australia), may be eligible for a second Subclass 462 visa. The applicant has applied for a second Subclass 462 visa.

10. The issue considered in the delegate’s decision was whether, at the time of application, the applicant had carried out 3 months of specified Subclass 462 work. In considering that issue the delegate referred to the provisions of cl.417.218 and its requirements. The relevant provision for consideration is;

    462.218

    If the applicant is, or has previously been, in Australia as the holder of a Subclass 462 (Work and Holiday) visa, the Minister is satisfied that:

    (a)  the applicant has, after 18 November 2016, carried out a period or periods of specified Subclass 462 work as the holder of the visa; and

    (b)  the total period of the work carried out is at least 3 months; and

    (c)  the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

11. However, as discussed at the hearing, the Tribunal also has considered the issue of whether the applicant has an intention to remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia. The relevant provision for consideration at the time of application is;

    462.217 

    The Minister is satisfied that the applicant:

    (a)  seeks to enter and remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia; and

    (b)  has sufficient money for: 

    (i)  the fare to the applicant’s intended overseas destination on leaving Australia; and 

    (ii)  personal support for the purposes of a working holiday; and 

    (c)  will not be accompanied by dependent children during the applicant’s stay in Australia unless the applicant is a member of a class of persons specified by the Minister in an instrument in writing for this paragraph. 

12. At the time of decision, the applicant must continue to satisfy the criterion in cl.462.217;

    462.221A

    If the applicant is, or has previously been, in Australia as the holder of a Subclass 462 (Work and Holiday) visa, the applicant:

    (a)   continues to satisfy the criteria in clauses 462.217 and 462.218; and

    ….

    Has the applicant carried out the requisite “specified Subclass 462 work”?

13. “Specified Subclass 462 work” is defined in Regulation 1.03 as work that was carried out in areas of Australia, and in types of work, specified by the Minister under Regulation 1.15FA[1]. At the time of application, the areas of Australia specified by instrument were all postcodes in the Northern Territory and other areas of northern Australia.

    [1] IMMI17/092 Areas of Australia and kinds of work – specified Subclass 462 work) Instrument 2017

14. The applicant applied for the visa in December 2017 and the Tribunal is satisfied that the applicant was the holder of a Subclass 462 visa when she made the application for her second Work and Holiday visa.

15. Together with her application she provided material to support her claim that, after 19 November 2016, she had worked for the equivalent of 3 months in an area included in the postcodes specified by instrument.

16. In the applicant’s employment verification form provided to the Department, she stated that she had worked for 90 days in 2017 at MacDonald’s in Alice Springs and 66 days at Double Tree by Hilton Hotel in Alice Springs. Her duties at MacDonald’s and Double Tree included greeting customers, taking orders, preparing coffees and maintaining inventories. She provided payslips from March 2017 to September 2017, however the delegate found the payslips only showed that the applicant worked for 51 days which was short of the days required to meet the 3 months equivalent full-time work.

17. After the visa was refused the applicant made submissions that she had worked in the northern area of Australia for the equivalent of 3 months full time work but had misunderstood the number of documents she needed to submit and did not get another chance to submit the balance of her payslips to show the total period worked.

18. She provided extra payslips[2] with her application for review and the Tribunal has considered that evidence and accepts that the applicant carried out the equivalent of 3 months in an area included in the postcodes specified by instrument IMMI 17/092. The Tribunal also accepts that the work carried out by the applicant was in eligible hospitality and tourism occupations, that is working in a MacDonald’s restaurant and in a hotel in Alice Springs.

    [2] Total of 37 payslips.

19. Considering the additional material, the Tribunal is satisfied that at the time of application the applicant met the requirements of cl.462.218 and continued to satisfy those requirements at the time of decision.

    Does the applicant seek to enter and remain in Australia as a genuine visitor?

20. At the time of application, and at the time of decision,[3] the applicant must meet the requirements of cl. 462.217 which provides that the applicant must seek to enter and remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia. .

    [3] R.462.221A (a) of Schedule 2 to the Migration Regulations.

21. The evidence before the Tribunal is that the applicant was granted a Subclass 500 student visa on 11 December 2019. The applicant stated at the hearing that she has completed her Bachelor of Social Work degree at the University of Tasmania and is awaiting admission to the Master of Social Work degree at the University of Queensland. She agreed her current intention was to remain in Australia as a student.

22. She stated that at the time she made her application in 2017 she intended to remain in Australia for the purpose of a holiday with some part time work. She conceded that while this may have been her intention in 2017, she no longer has this intention and intends to complete her studies.

23. While the Tribunal is prepared to accept the applicant had the requisite intention when she made the application for the visa, the Tribunal finds she no longer has an intention to remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia.

24. Therefore, the applicant does not satisfy cl. 462.221A.

    Addendum

25. Prior to the hearing, the Tribunal wrote to the applicant asking her if she wished to withdraw her application considering she had been granted a student visa which was due to cease in 2023. She asked to continue the review and attend a hearing.

26. When asked at the hearing why she decided to pursue her application, she stated that she does not want a visa refusal on her migration record. She stated she was an honest person who always tried to comply with her obligations, and had she submitted all the relevant material when she applied, she would have met the requirements for the visa. She was very concerned as to how a visa refusal would affect future applications for visas in Australia and elsewhere.

27. It appears that, if the applicant had provided the necessary documents at the time she made her application, she would most likely have been eligible for the visa, subject to her meeting the other requirements. However, as discussed at the Tribunal hearing, at the time of the Tribunal’s decision she could not meet the requirements because she did not have an intention to spend a holiday in Australia.

28. The Tribunal found the applicant to be honest and straightforward and it accepts her evidence that she had made an error in not providing all the available material to the Department when she applied for the visa. It accepts she is worried about having a visa refusal on her record, however, the Tribunal noted that given her current circumstances she could not meet the requirements for this subclass of visa, and the refusal was not a reflection on her honesty or integrity.

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a Work and Holiday (Temporary) (Class US) visa.

    Louise Nicholls
    Senior Member