Alwright (Migration)

[2020] AATA 4581

Alwright (Migration) [2020] AATA 4581 (3 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dane Alwright

CASE NUMBER:  2004961

HOME AFFAIRS REFERENCE(S):          BCC2019/809493

MEMBER:Jane Marquard

DATE:3 November 2020

PLACE OF DECISION:  Sydney

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 03 November 2020 at 6:27am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional area for three months – letter from employer confirming dates and times – pay slips – remuneration in accordance with legislation and awards – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211(5)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a 29-year-old man from Ireland. He applied for a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act) on 9 January 2020. This was his second application for this type of visa.

2. The Working Holiday (Temporary) (Class TZ) visa class allows young people from specified countries to have an extended holiday supplemented by short term employment.

3. A delegate of the Minister for Home Affairs (the Department) refused to grant the visa on 20 February 2020. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

4. 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). As the application is for a second visa, the applicant must have carried out specified work in a designated regional area for a total period of at least three months.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5)(a) as the delegate was not satisfied that that the applicant had carried out three months’ specified work in regional Australia as the holder of a visa.

6. The applicant has provided further information to this Tribunal. No hearing was necessary as the Tribunal was able to determine the matter in the applicant’s favour, based on the new evidence before the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant has carried out the requisite specified work in regional Australia for a three-month period.

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

9. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified work in regional Australia.

10. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111.

11. The applicable instrument is IMMI 17/018 Working Holiday Visa – Specified Work and Regional Australia Instrument 2017.

12. In his Form 1263. ‘Working Holiday Visa: Employment Verification’, the applicant stated that he worked as a labourer for Mems 56 Pty Ltd in Broadmeadow, postcode 4740 from 19 September 2019 to 2 January 2020 which was verified by his employer. A letter from Mems 56 Pty Ltd dated 3 March 2020 confirmed that the applicant was employed in Mackay as a general labourer from 19 September 2019 to 2 January 2020 from 6.30am to 5.00pm.

13. The Tribunal notes that IMMI 17/018 includes the category ‘construction’. The Tribunal is satisfied therefore that the work carried out by the applicant was specified work.

14. Having regard to the postcode, 4740, where the applicant worked, the Tribunal finds that the work was carried out within regional Australia as that term is defined in IMMI 17/018.

15. The Tribunal finds that the requisite work was carried out in regional Australia. The applicant therefore satisfies cl.417.211 (5)(a).

    Was the work carried out for a total period or period equivalent to at least 3 months’ full-time work?

16. The expression, '3 months' is not defined in the Regulations; however Departmental guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. Further, these guidelines specify that the work should be the equivalent of full-time work for that employer, that region and that industry. The employer’s letter set out above confirms that the applicant worked full-time for a period of three and a half months. The applicant’s employment hours and pay were confirmed by pay slips provided to the Tribunal. There was some variation as per cl. 5.2 of the Letter of Engagement, which specified that the weeks paid hours would vary depending on hours worked. However the Tribunal is satisfied given the employer’s verification and the pay slips that the applicant worked full time for an equivalent of three and a half months in that industry.

17. The Tribunal is satisfied therefore that the work was carried out for a total period or period equivalent to at least 3 months’ full-time work. Clause 417.211(5)(b) is therefore satisfied.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015?

18. The Letter of Engagement provided to the applicant on 24 September 2019 confirms that the applicant was paid a gross rate of $1608 per week based on 55 hours per week (roughly $29 per hour). The agreement specified that the applicant was employed pursuant to the National Employment Standards in the Fair Work Act 2009. Pay slips indicated that he was paid according to the Letter of Engagement.

19. The Department’s policy guidelines in PAM3 in relation to appropriate remuneration includes as follows:

    Appropriate remuneration

    Case officers auditing a second Working Holiday visa application should undertake an additional step for remuneration verification. This will entail checking the hourly rate of pay on the pay slips provided by the applicant against minimum wage rates.

    Remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history. In the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted. Identified instances of inadequate remuneration should also subsequently be referred to the Fair Work Ombudsman for investigation. 

20. The national minimum wage[1] from 1 July 2019, was $19.49 per hour. According to the Fair Work Ombudsman website the base level wage for a construction worker in September 2019 was $21.53[2].On the basis of the evidence now before it the Tribunal is therefore satisfied that the applicant was remunerated in accordance with the relevant Australian legislation. Clause 417.211(5)(c) is therefore satisfied.

    [1] Fair Work Ombudsman website, calculator, >

    The applicant satisfies cl.417.211(5) of Schedule 2 to the Regulations.

21. 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

22. 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.

    Jane Marquard

    
    

    Member