1604649 (Migration)

[2016] AATA 4685

1604649 (Migration) [2016] AATA 4685 (18 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lai Mei Ha

CASE NUMBER:  1604649

DIBP REFERENCE(S):  BCC2016/311523

MEMBER:Fiona Meagher

DATE:18 November 2016

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.417.221(5) of Schedule 2 to the Regulations.

·Cl.417.222(a) of Schedule 2 to the Regulations

Statement made on 18 November 2016 at 7:04pm

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 29 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 21 January 2016. 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.417.222(a).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.222(a) because she had worked for one employer for more than six months without the prior written permission of the Secretary, in contravention of the conditions of her Visa. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant has complied substantially with condition 8547, a condition applying to a visa held by her.

6. Condition 8547 is a condition applying to Working Holiday visas (cl.417.611 of Schedule 2 to the Regulations). It states that the visa holder “must not be employed by any 1 employer for more than six months, without the prior permission in writing of the Secretary”.

7. The Department’s records show that the applicant first arrived in Australia on 12 April 2015 on the grant of a Working Holiday 417 visa. That Visa was valid until 12 April 2016. Given this evidence, the Tribunal finds that the requirements of cl.417.222(a) of Schedule 2 to the Regulations apply to the applicant.

8. In the application for the Visa, the applicant states she had undertaken specified work in regional Australia for a total of approximately three months from 22 May 2015 to 18 January 2016. This is required of an applicant who has previously held a Working Holiday visa (cl.417.221(5) of Schedule 2 to the Regulations), as is the case here. The applicant set out in the application form that she had worked for an employer (ABN: 32096900604) in postcode area 4343, Queensland, commencing on 22 May 2015 to 18 January 2016 and that the work is specified work in the field of agriculture forestry and fishing on a full-time basis.

9. According to the delegate’s decision, a copy of which was provided with the application, the applicant was asked to provide evidence of specified work completed whilst on the first Working Holiday visa on 12 February 2016.

10. Also according to the delegate’s decision, which was made on 29 March 2016, the applicant did not respond to that request.

11. After the making of the delegate’s decision, the applicant applied for review of same on 5 April 2016.

12. On 26 September 2016 the applicant provided a submission and substantial documentation to the Tribunal. The documentation consisted of the following:

    ·Rugby Farm employment letter.

    ·Sutton Farm employment letter.

    ·Rugby Farm 1263 form.

    ·Sutton Farm 1263 form.

    ·Rugby Farm PAYG summary.

    ·Sutton Farm PAYG summary.

    ·Bank Transactions.

    ·Austsafe Super Transactions.

    ·WHM specified Work Questionnaire – Rugby Farm field work.

    ·WHM specified Work Questionnaire – Sutton Farm shed work.

    ·WHM specified Work Questionnaire – Rugby Farm shed work.

13. The Tribunal considered the documentary evidence carefully and concluded from it that the applicant had worked for the following periods:

    ·22 May 2015 - 4 August 2015: Top Pack Pty Ltd.

    ·5 August 2015 - 10 November 2015: Sutton Emp Pty Ltd.

    ·18 November 2015 - 20 February 2016: Top Pack Pty Ltd.

14. The Tribunal also considered the letter from Top Pack Pty Ltd dated 2 September 2016 which stated inter alia as follows:

    This letter is to confirm that Lai Me Ha was employed on a casual basis as a Shed Worker at Rugby Farm. Lai Me commenced work on the 22^nd May 2015. She worked for a period of 11 weeks until the 4^th August 2015. She recommenced work at Rugby Farm on the 18^th November 2015 working through until the 20^th February 2016. In total Lai Me worked for a period less than six months (25 weeks) at Rugby Farm. I have attached a summary of Lai Me’s pay advice transactions for the time she worked for Rugby Farm.

    …

    Signed

    Patricia Zirbel

    HR Administration Officer

15. Subsection 360(2) of the Act provides that if, in the course of reviewing the material before it, the Tribunal comes to a conclusion that the review may be decided in the applicant’s favour without a hearing, then the Tribunal does not have an obligation to invite the applicant to appear before it. In this case, after examining all the evidence before it, the Tribunal considered it should decide the review in favour of the applicant. The Tribunal therefore decided not to conduct a hearing in this case.

16. On the basis of the above, the Tribunal finds that the applicant worked for less than six months with Top Pack Pty Ltd and has therefore complied with condition 8547.

17. The Tribunal acknowledges that Departmental policy indicates that the Working Holiday visa holder cannot stay with the one employer in the same or a different position, beyond 6  months by using different sub-contracting arrangements. Departmental policy also indicates that workplace training is considered to constitute employment, rather than study or training, for the purpose of condition 8547. The Tribunal acknowledges that policy is not law; however it is intended to clarify the purpose of the Working Holiday visa program. However the Tribunal notes that it is not necessary for it to consider the policy in this case, as even with the break in work for Top Pack Pty Ltd, the applicant did not exceed the six months maximum limit.

18. As there is no evidence to suggest that the applicant failed to comply with any other condition of her previous Working Holiday visa, the Tribunal finds that the applicant satisfies cl.417.222(a) of Schedule 2 to the Regulations.

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

19. 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 16/087.

20. Given all of the evidence, the Tribunal concludes that the applicant has carried out work, the equivalent of at least three months full-time work, in Australia as the holder of a Subclass 417 Visa. The evidence before the Tribunal indicates that the applicant has been residing in postcode area 4343 in Gatton in Queensland. The Tribunal is satisfied that that postcode area is in regional Australia and that the ‘work undertaken’ is in this area.

21. The applicant worked cutting lettuce, cauliflower and baby broccoli, and packing vegetables. This information is contained on the specified Work Questionnaires attached to the Form 1263’s submitted by the applicant. The applicant has also submitted payslips and employment records which give weight to this evidence. The Tribunal is satisfied that the applicant’s work was work of a kind specified in the relevant instrument as ‘specified work’, being work in the field of plant and animal cultivation included in that instrument.

22. The Tribunal is satisfied, based on the documents provided by the applicant with her submission, that the applicant was remunerated in accordance with the relevant Australian legislation and awards, in respect of work undertaken since 1 December 2015.

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

24. 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

25. 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.

    ·Cl.417.222(a) of Schedule 2 to the Regulations.

    Fiona Meagher

    
    

    Member