Castorina (Migration)

[2021] AATA 665

Castorina (Migration) [2021] AATA 665 (12 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mariano Manuel Castorina

CASE NUMBER:  1902755

HOME AFFAIRS REFERENCE(S):          BCC2018/3362873

MEMBER:David Crawshay

DATE:12 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 12 February 2021 at 1:24pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – specified work in regional Australia – eligible occupation – updated evidence – processing, packing and transporting plantation wood – decision under review remitted        

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 417.111, 417.211

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 17 January 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 5 September 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 found that the work undertaken by the applicant did not meet the definition of specified work and was therefore not an eligible occupation for the purpose of the visa.

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.

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. 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. The Tribunal notes that the only issue identified by the delegate in this matter was that the applicant had not performed the type of work required by the legislative instrument, as he had listed his duties as “PACKING FIREWOOD BAGS – BRINGING WOOD BLOCKS TO THE FARM” in a Form 1263 dated 4 March 2018. This caused the delegate to find that delivering and packing firewood to be used on a farm did not meet the definition of specified work. In that form, he listed the business name as “JOSEPH BETTISON”.

9. Since the delegate’s decision, the Tribunal has received an updated Form 1263 dated 6 February 2019 as well as an undated letter from the applicant.

10. The updated Form 1263 lists the applicant’s duties during the time he claims to have been working as “TRANSPORTING PLANTATION WOOD TO THE MILL, PROCESSING AND PACKING OF PLANTATION WOOD”. He lists the business name as “JOE BETTISON T.A AUSSIE BAGGED FIREWOOD & KINDLING”. In his letter, the applicant relevantly states as follows:

    Unfortunately, in the Form 1263, I made a mistake on the part where I have to describe my duties. The correct descriptions for my duties are: ‘’Transporting plantation wood to the mill, processing and packing of plantation wood’’.

    The explanation is that we pick the wood from the plantation and take it to the farm [address redacted] with a small tipper truck; where it is milled and then packaged. The piece rate of all that process is $1/bag.

11. The Tribunal has considered this information and accepts it as credible. It has since conducted a check of the ABN associated with Joseph Bettison showing, at the relevant times, he operated a business under the business name “AUSSIE BAGGED FIREWOOD & KINDLING” and this was the only business name associated with his ABN at that the relevant times.

12. Based on this information, the Tribunal finds that the applicant was engaging in work that met the definition of specified work – namely, transporting trees or parts of trees that were felled in a plantation or forest to the place where they are first to be milled or processed. Therefore, the applicant satisfies cl.417.211(5)(a).

13. Additionally, the Tribunal finds that the applicant carried out the work for a total period of at least three months and was remunerated for the work in accordance with relevant Australian legislation and awards. Therefore, the applicant satisfies cl.417.211(5)(b) and cl.417.211(5)(c).

14. Accordingly, the Tribunal finds that the applicant satisfies cl.417.211(5) at the time of application and at the time of this decision.

15. 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

16. 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