1604173 (Migration)

[2016] AATA 3893

1604173 (Migration) [2016] AATA 3893 (20 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thiago Marianetti Covo

CASE NUMBER:  1604173

DIBP REFERENCE(S):  BCC2015/4127223

MEMBER:Tony Caravella

DATE:20 May 2016

PLACE OF DECISION:  Perth

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 20 May 2016 at 12:39pm

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 10 March 2016 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 31 December 2015. 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.417.211(5) of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied that the work completed by the applicant was ‘specified work’. 

4. Section 360(1) of the Act requires the Tribunal invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The exception in s.360(2)(a) applies if, in the course of reviewing the files, the Tribunal Member comes to a conclusion that the review may be decided in the applicant's favour without a hearing. For example, this may arise where there is compelling evidence put before the Tribunal, which upon consideration justifies the application being decided in the applicant's favour.

5. The Tribunal considered the additional evidence which was provided to it, some of which was not available to the delegate.  The Tribunal found this evidence credible and compelling, and for reasons detailed below, it finds the evidence justifies the making of a decision in the applicant’s favour.  The Tribunal therefore decided to proceed to review this matter without a 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 issue in this case is whether the applicant meets the requirements specified in cl.417.211(5) of Schedule 2 to the Regulations.

   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 08/048.

9. On 26 March 2016, the Tribunal received several completed Form 1263 Working Holiday visa: Employment verification, together with a number of payslips and several bank statements issued in the applicant’s name by the National Australia Bank.  In particular, the forms 1263 provided show the applicant:

   • was employed with IK & EA Shepardson in regional postcode 4806 from 30/03/2015 to 17/04/2015.  The type of work is described as cane planting;
   • was employed with Rushel Produce in regional postcode 4805 from 21/04/2015 to 20/05/2015.  The type of work is described as fruit picking and planting;
   • was employed with Mastervine Pty Ltd in regional postcode 6281 from 09/06/2015 to 14/06/2015.  The type of work is described as vineyard labour;
   • was employed with Vass Felix Pty Ltd in regional postcode 6284 from 15/06/2015 to 24/09/2015.  The Type of work is described as vineyard hand;
   • was employed with Channybearup Estate in regional postcode 6260 from 13 October 2015 to 04/11/2015.  The type of work is described at vineyard labourer;
   • was employed by Higher Plane regional postcode 6285 from 05/01/2016 to 22/02/2016.  The type of work is described as vineyard labour.

10. As indicated above, the applicant also submitted copies of various payslips to the Tribunal.  These payslips are in respect of his employment with Channybearup, Mastervine Pty Ltd, and Higher Plane.  The applicant also provided copies of payslips showing he worked with Juniper Estate from 10/02/2016 to 23/02/2016, and with Cooperative Bulk Handling (CBH) from 07/11/2015 to 04/12/2015.  The Tribunal finds that it does not need to take the applicant’s employment with Juniper Estate, or with CBH, or with Higher Plane, into account as it finds for reasons that follow that the other work declared is sufficient to meet the requirement in cl.417.211(5).    

11. The applicant submitted NAB bank statements in his name.  The Tribunal observes these show payments being received into the applicant’s bank account from employers nominated on the forms 1263.  The statements also indicate the applicant making various purchases in some of the relevant regional areas where he has nominated he has performed ‘specified work’. 

12. Having regard to the above, and to the Department’s movement record, the Tribunal finds the applicant was the holder of a Subclass 417 visa from 23 February 2015 to 23 February 2016.  Having regard to the evidence of the declared employment carried out by the applicant, the Tribunal finds the applicant carried out the work in Australia as the holder of a Subclass 417 visa. 

13. Having regard to the periods of the declared work as set out in the forms 1263, the Tribunal calculates that the applicant has declared he has worked a total period of approximately 134 days excluding weekends between the period 30 March 2015 and 4 November 2015 and while holding the Subclass 417 visa.  Based on this evidence, the Tribunal finds the applicant has worked at least 3 months’ full-time work.

14. Having regard paragraph 3 of IMMI 08/048 which defines ‘specified work’, and having regard to the type of work declared by the applicant, which in the absence of any controverting evidence the Tribunal accepts as correct, the Tribunal finds the work he has performed in the declared positions is ‘specified work’.    

15. Having regard to the postcodes detailed in the Schedule to IMMI 08/048, and having regard to the postcodes declared in the forms 1263 submitted by the applicant, the Tribunal finds the work declared was performed in postcode areas identified as ‘regional Australia’ for the purposes of cl.417.211(5). 

16. Having regard to the foregoing, the Tribunal therefore finds the applicant 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.

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

18. 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

19. 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.

    Tony Caravella

    
    

    Member