Casella (Migration)

[2023] AATA 506

Casella (Migration) [2023] AATA 506 (5 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Antonio Casella

REPRESENTATIVE:  Ms  Romanini (MARN: 1679969)

CASE NUMBER:  2114846

HOME AFFAIRS REFERENCE(S):          BCC2020/2403347

MEMBER:Tania Flood

DATE:5 January 2023

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 05 January 2023 at 1:04pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – applicant has been remunerated for the specified work he has undertaken in regional postcodes – applicant had carried out specified work in regional Australia for a total period of at least 3 months – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 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 7 October 2021 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 1 October 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 417.211(5).

3. The delegate refused to grant the visa on the basis that the applicant did not provide sufficient information to establish that he completed specified work in a regional area for a 3-month period and was remunerated appropriately for this work (cl.417.211(5)(a); cl.417.211(5)(b) and cl.417.211(5)(c)).

4. As part of the application for review the applicant provided submissions to the Tribunal including further evidence regarding his employment in regional Australia including copies of payslips and bank statements for the relevant period showing salary payments corresponding to the payslips supplied by the applicant.  The submission also provided a recalculation of the days worked by the applicant compared to those mistakenly provided in the application which led the delegate to refuse the application.

5. Based on this information the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the material before it. 

6. The applicant was represented in relation to the review.

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 specified work in regional Australia for a period of at least 3 months as the holder of a Subclass 417 visa and been remunerated in accordance with relevant Australian legislation and awards. 

   Application for a Second Working Holiday Visa

9. In his application for a Working Holiday Visa the applicant declared that he undertook specified work with the following employers:

10. Sunny Bluff Produce (ABN 46970216180) in postcode area 4670 from 1 June 2020 to 13 July 2020 for a total of 21 days (picking avocado) for which he was remunerated on an hourly rate.

11. The Trustee for the Willing Worker (ABN 71337975948) in postcode area 4670 from 22 November 2019 to 13 February 2020 for a total of 16 days (picking rockmelon) for which he was remunerated on an hourly rate.

12. BJ & A Penny Pty Ltd (ABN 80105590083) in postcode area 4670 from 27 December 2019 to 5 March 2020 for a total of 31 days (performing farm maintenance) for which he was remunerated on an hourly rate.

13. The applicant provided copies of payslips issued by these employers.

    Evidence provided to the Tribunal

14. In a submission to the Tribunal dated 15 December 2022 the applicant provided a recalculation of the specified work undertaken with the abovementioned employers:

    -Sunny Bluff:  30 days from 25 May 2020 to 12 July 2020

    -The Willing Worker:  39 days from 13 November 2019 to 31 December 2019

    -BJ & A Penny: 5 days from 10 January 2020 to 23 January 2020

15. In addition, he provided details of specified work undertaken with previously unclaimed employers:

    -Sunstate (ABN 21628653485):  1 day in the period 30 December 2019 to 5 January 2020 for which he was remunerated on an hourly rate. 

    -Emiluci (ABN 18408127753) :  1 day in the period 27 January 2020 to 2 February 2020 for which he was remunerated on an hourly rate.

    -Agiquip (ABN 70630499295):  12 days of picking (96 hours worked at piece rate agreement) in the period 5 April to 11 April 2020 in postcode area 4670

    -Berraford (ABN 58568591978):  5 days in the period 30 September 2020 to 4 October 2020 (the end of the first Working Holiday Visa) in postcode area 4390

16. The applicant provided copies of payslips issued by the additional employers as well as copies of bank statements showing salary payments corresponding to payslips for all the abovementioned employers provided to both the Department and the Tribunal.

17. On 4 January 2023 the applicant’s representative provided an additional submission providing further particulars in respect of the work undertaken by the applicant for Emiluci, Agiquip and Berraford. 

18. While working for Agiquip in postcode area 4670 the applicant was required to pick capsicums and install posts.

19. While working for Emiluci in postcode area 4670 the applicant was required to seed capsicums.

20. While working for Berraford in postcode area 4390 the applicant performed animal husbandry duties. 

21. The representative also provided a recalculation of the days worked for BJ&A Penny based on additional payslips provided by the applicant.  The revised number of days worked for this employer is 30 rather than 5 as earlier advised.

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

22. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Subclass 417 visa.  The applicant must also have been remunerated in accordance with relevant Australian legislation and awards.  ‘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 Migration (LIN20/103: Subclass 417 (Working Holiday) visa – Regional Australia and Specified Work) Instrument 2020.

23. Relevant to this case ‘regional Australia’ includes Queensland postcodes 4670 and 4390 and ‘specified work’ includes:

    Plant and animal cultivation

    -Harvesting and/or packing of fruit and vegetable crops;

    -Pruning and trimming vines and trees;

    -General maintenance crop work;

    -Cultivating or propagating plants, fungi or their products or parts;

    -Immediate processing of plant products;

    -Maintaining animals for the purposes of selling them or their bodily produce, including natural increase;

    -Immediate processing of animal products including shearing, butchery, packing and tanning, and not including secondary processing;

    -Manufacturing dairy produce from raw material.

24. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.  The expression ‘3 months’ is not defined in the Regulations; however, Department 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.

25. Based on the documentary evidence which is now available the Tribunal is satisfied that the applicant worked in excess of 88 days only taking into consideration his employment with Sunny Bluff, The Willing Worker and BJ & A Penny, performing duties in line with those outlined above in the Queensland postcode area 4670.  The Tribunal is satisfied he has worked for at least 3 months and completed work which meets the definition of ‘specified work’ in locations which are specified as ‘regional Australia’ whilst in Australia as the holder of a Working Holiday visa.

26. The Tribunal is satisfied that the applicant meets cl.417.211(5)(a) and (b) of the Regulations.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards?

27. From 1 December 2015 onwards, all specified work performed is required to have been paid in accordance with Australian workplace law. 

28. According to the Department’s policy guidelines, “the remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history.  It further states that “in the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted”.

29. The relevant award for the applicant’s work is the Horticulture Award which lists the minimum hourly rate of payment.  The award also allows for piece rate payments.

30. The applicant has produced payslips which correspond to the times he claims he was employed with Sunny Bluff, The Willing Worker and BJ & A Penny.  These payslips indicate he was remunerated on an hourly basis.   He has also provided bank records which include records of deposits which correspond to payments recorded in the payslips. 

31. Having carefully considered the supporting documentation provided by the applicant and having regard to the applicable award and Departmental policy, the Tribunal is satisfied that the applicant was remunerated for the work he performed in accordance with relevant Australian legislation and awards.

32. The Tribunal is satisfied that the applicant meets cl 417.211(5)(c) of the Regulations.

33. In view of the above findings, the applicant satisfies cl 417.211(5) of the Regulations.

34. 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

35. 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.

    Tania Flood

    
    

    Member