Aversa (Migration)

[2021] AATA 953

Aversa (Migration) [2021] AATA 953 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrea Aversa

CASE NUMBER:  1903916

HOME AFFAIRS REFERENCE(S):          BCC2018/4555941

MEMBER:David Crawshay

DATE:22 February 2021

PLACE OF DECISION:  Melbourne

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; and

·cl.417.211(5) for the purposes of cl.417.221(2)(a) of Schedule 2 to the Regulations.

Statement made on 22 February 2021 at 4:03pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – harvesting and/or packing of fruit or vegetable crops – 84 days of full-time work – remuneration in accordance with relevant Australian legislation and awards – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211, 417.221

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 4 February 2019 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 17 October 2018. 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) and cl.221(2)(a). Clause 417.211(5) specifies certain requirements that must be met at the time of application by an applicant who has held only one Subclass 417 visa in Australia. Clause 417.221(2)(a) requires, among other things, for cl.417.211(5) to continue to be satisfied at the time of decision.

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 the applicant had carried out a period or periods of specified work as the holder of a Subclass 417 visa: cl.417.511(5)(a); had worked for at least three months full-time: cl.417.211(5)(b); or had been remunerated for the work in accordance with the relevant Australian legislation and awards: cl.417.211(5)(c).

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act. Much of this material was submitted after the delegate’s decision and will be provided to the Department upon remittal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies the requirements under cl.417.211(5) in relation to work performed.

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

7. 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. It is not in dispute that the applicant was the previous 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 at the time was IMMI 17/018.

8. In addition to the information on the Department file, the Tribunal has received a Form 1263 providing details of five employers and including the postcodes of where the work was performed, the ABNs of the employers, the industry worked in and duties performed, and the contact details of the employers. It has also received specified work questionnaires in respect of all five employers, as well as employee payments slips and bank account statements showing deposits to the applicant from employers.

9. Based on this evidence, the Tribunal is satisfied that the applicant worked in a postcode that is listed in the relevant instrument, being 4670. It accepts that he undertook work as a picker and packer of vegetables including sweet potatoes and is satisfied that this is specified work under the instrument, being “the harvesting and/or packing of fruit or vegetable crops”. The Tribunal is satisfied that the applicant was paid for this work in accordance with the relevant award, being the Horticulture Award 2010 and the pay guides under that award for a “Level 1 Casual” in the period leading up to 1 July 2018 when the minimum rate was $22.86/hour and after 1 July 2018 when the rate increased to $23.66/hour.

10. Lastly, the Tribunal is satisfied that the applicant has undertaken specified work as the holder of a Subclass 417 visa for at least the following periods:

    ·    2 May to 15 May 2018  7 days

    ·    16 May to 29 May 2018  14 days

    ·    6 June to 12 June 2018  7 days

    ·    13 June to 19 June 2018  7 days

    ·    9 July to 22 July 2018  14 days

    ·    23 July to 5 August 2018  14 days

    ·    3 September to 16 September 2018             7 days

    ·    17 September to 30 September 2018           14 days

11. While these periods comprise 84 days, the Tribunal is also satisfied that the applicant has undertaken specified work for other periods comprising at least seven more days, although these periods may not have been worked consecutively for the same employer. The Tribunal notes in this regard that the applicant would sometimes work for more than one employer.

12. The Tribunal has cross-referenced these periods against deposit details for the applicant’s bank account and accepts based on this that he worked at least these periods as the holder of a Subclass 417 visa and these periods comprise at least three months’ full-time work.

13. Based on the above findings, the Tribunal accepts that the applicant has carried out periods of specified work as the holder of a Subclass 417 visa, that the total period of the work carried out was at least three months, and that he was remunerated for the work in accordance with the relevant Australian legislation and awards. The applicant satisfies cl.417.211(5) at the time of application and at the time of decision.

14. 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

15. 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; and

    ·cl.417.211(5) for the purposes of cl.417.221(2)(a) of Schedule 2 to the Regulations.

    David Crawshay

    
    

    Member