Daniels (Migration)

[2021] AATA 1452

Daniels (Migration) [2021] AATA 1452 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Benjamin Joseph Daniels

CASE NUMBER:  2014110

HOME AFFAIRS REFERENCE(S):          BCC2020/1667372

MEMBER:Linda Holub

DATE:13 May 2021

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 13 May 2021 at 9:43 am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – specified work in regional Australia for at least 3 months – ongoing business unregistered during applicant’s employment – registration later reinstated – visa, employment and financial procedures followed and documented – co-worker granted second visa in same circumstances – applicant undertook work in good faith and had no reason to question business’s status – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5)(a)

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 1 September 2020 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 2 June 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 meet cl 417.211(5) (a) because the delegate found that specified work that may have been carried out with the business cannot be considered as part of the specified work requirements for the purpose of the Working Holiday visa application as the business was unregistered during the claimed period of employment. On that basis the delegate was not satisfied that the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa, as prescribed in Regulation 417.211(5) (a).

4. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

5. The applicant was represented in relation to the review by his registered migration agent.

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

BACKGROUND

1. The applicant is a 29-year-old British citizen. In his application he declared that he undertook specified work for Gebeela Pty Ltd (ABN: 210099973544) at the Gregory Downs Hotel from 14 February to 29 May 2020 in the 4830 regional postcode area.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

1. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified 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 IMMI 20/103.

2. The applicant provided the Department of Home Affairs with copies of

   a.correspondence from the Gregory Downs Hotel regarding his employment.

   b.payslips covering the period of his employment.

   c.his bank statements showing the payment of his salary into his account.

Evidence provided to the Tribunal

10) The applicant provided the Tribunal with copies of the same documents he provided to the Department as well as:

a.payment summaries listing his period of employment and salary for the period of his employment with the Gregory Downs Hotel

b.his Notice of Assessment for the year ended 30 June 2020 from the Australian Taxation Office.

c.a transaction statement from his superannuation fund.

d.Copies of invoices for diesel purchased and for his accommodation during his period of employment at the Gregory Downs Hotel

e.invoices issued by the Gregory Downs Hotel to the Queensland Police Service and a statement listing their payment through electronic funds transferred,

11) In addition, the applicant provided the Tribunal with:

a.a letter from a third party (Mr Christian-Alexander WUENSCH) who worked with the applicant at the hotel. The letter authorises the disclosure of Mr Wuensch’s personal information used to lodge his Working Holiday (subclass 417) visa application including his online application and visa grant notice to be released to the applicant’s migration representative. The letter is dated 3 November 2020. A copy of Mr Wuensch’s visa grant notice and visa application were also provided to the Tribunal (presumably with consent)

b.Correspondence from ASIC to the Gregory Downs Hotel stating that Gebeela Pty Ltd was reinstated to the ABN register on 14 October 2019.

c.An email form the ASIC Messaging Service to the Gregory Downs Hotel dated 4 January 2018 which states there is a certificate of registration attached. The certificate was not provided to the Tribunal.

d.A submission on behalf of the applicant dated 30 November 2020.

12) The submission provides background in relation to the visa application and the information and evidence provided by the applicant to the Department. It notes that the applicant submitted a Form 1023 notification of incorrect answers in relation to the rate of pay received by the him as well as hours and days worked and that the information was corrected by him.

13) The submission dated 20 November 2020 also refers to relevant legislation as well as the President’s Directions with regard to role of the Tribunal on review, arguing that the Tribunal should restrict itself to the particular criteria or issues which were the subject of the refusal decision.

14) On that basis, it was submitted the Tribunal should limit its review to the particular issue pertinent to the delegate’s decision as to whether the specified work undertaken by the applicant can be considered against subparagraph 417.211(5)(a) due to the business being unregistered during the time of the applicant’s employment.

15) Reference is made to the Department’s Procedural Advice Manual (PAM). The submission acknowledges the Tribunal is not bound by the PAM but the submission states that it does serve as a useful guide in determining how such matters are to be interpreted and assessed against the relevant criteria.

16) In this instance, the Policy instructs that the specified work requirement should, at minimum, be assessed for all applications that are not autogranted by ensuring that the ABN is genuine. The submission states that the meaning of the word ‘genuine’ should be considered to determine the intention behind the Policy. It states that the ordinary meaning of the word ‘genuine’ according to dictionary.com is as follows: possessing the claimed or attributed character, quality, or origin; not counterfeit; authentic.

17) It was submitted that this definition, in its plainest form, suggests that the word ‘genuine’ may be taken to mean, in this instance, that the ABN in question is not fake or forged. The inclusion of the words ‘counterfeit’ and ‘authentic’ imply a sense of honesty so as to deter applicants working for employers who have used, or intend to use, a fraudulent ABN, or one that has been created as a “sham”.

18) As the consideration for the decision-maker is whether the ABN is genuine, this must, as a result, be differentiated from a business who was unregistered due to a cancelled ABN. Furthermore, the inflexible application of an otherwise lawful policy contained in the Procedural Advice Manual may lead to a finding of jurisdictional error, meaning the policy should not be applied as a requirement but merely serve as a guide to which the Tribunal may or not have regard, taking into the account the factors and merits of the case.

19) Reference is also made in the submission to a number of relevant cases and it outlines the purpose of the working holiday program as well as making reference to consistency of application of departmental procedures by referring to a third party who’s second working holiday visa was granted by the Department. Written evidence was provided in support of this in relation to Mr Wuensch.

20) It was submitted that the question to be determined is whether the applicant carried out specified work in regional Australia as the holder of a working holiday (subclass 417) visa. The submission states that the applicant completed the relevant work at The Gregory Downs Hotel, located in Gregory Queensland, postcode 4830, and is a regional area for the purposes of the subclass 417 visa. Reference is made to the relevant authority at the time of application Legislative Instrument 20/103, which defined specified work as plant and animal cultivation, fishing and pearling, tree farming and felling, mining and construction.

21) The submission states that the applicant’s work included general carpentry and plumbing duties such as motel room refurbishment, decking refurbishment, animal cage construction, door and lock maintenance, rotten timber repairs, leak fixing, tap reseating, water heater maintenance, drainage unblocking and other similar tasks and that this work falls under the construction subgroup of specified work as carpentry and plumbing are both staples of the construction industry.

22) It states that the applicant have provided a range of supporting primary evidence substantiating the claimed work including bank transaction statements, payslips issued by the business, and a letter of appointment from the proprietor of the business. Furthermore, it was submitted that the evidence shows that the applicant completed specified work in regional Australia for the required period. The submission verifies that he was remunerated for the work in accordance with the relevant Australian legislation and awards and the work was clearly completed in regional Australia. In addition, the submission states that the applicant performed the required construction work for the required time in the required location.

23) It was submitted that despite operating on a cancelled ABN, the business withheld tax for the applicant as working holidays makers at the correct rate of 15% for the first $37,000 earned and that this is evident in the applicant’s payslips which shows the total earned and total tax withheld for each payment period, the tax equating to 15% of the earnings. It was argued that the business continued to comply with its obligations as an employer of working holiday makers despite operating on a cancelled ABN.

24) In addition, the submission states, the applicant lodged his tax returns with the Australian Tax Office (“the ATO”) for the 2020 financial year and declared all income derived from his employment with the Gregory Downs Hotel. The Notice of Assessment for the financial year ending 30 June 2020 provided as evidence indicates a taxable income of approximately $40,000 which includes remuneration derived from the Gregory Downs Hotel. It was submitted that if an Australian Government organisation, the Australian Tax Office, accepted the applicant’s remuneration from the Gregory Downs Hotel as income, the Department of Home Affairs should also accept that the applicants were working under a proper arrangement.

25) The submission also refers to the superannuation statements with MLC Super provided showing contributions from the Gregory Downs Hotel. It states that the statements demonstrate that an Australian superannuation fund accepted the payments received by the applicant from the Gregory Downs Hotel as income and the transaction statements show valid Superannuation Guarantee.

26) Finally, the submission states that the business has continued to trade and cites their ABN on tax invoices distributed to clients. The applicant submitted several tax invoices issued by the Gregory Downs Hotel to the Queensland Police Service which were subsequently paid as evidenced by the electronic funds transfer payment advice. The submission states that those tax invoices demonstrate current and ongoing business activity and that the business continues to operate on the same ABN as quoted in their tax invoices.

Findings

27) The Tribunal has considered the written evidence submitted by the applicant. Based on that evidence, the Tribunal finds that:

a.the applicant has carried out work in Australia as the holder of a Subclass 417 visa

b.the total period of work was at least 3 months

c.it was ‘specified work’ as set out in the instrument

d.it was in regional Australia as set out in the instrument

e.the applicant was remunerated in accordance with relevant Australian legislation and awards.

28) The Tribunal has given consideration to the delegate’s finding that because the applicant’s employer did not have a current ABN at that time, the business cannot be considered as part of the specified work requirements for the purpose of the Working Holiday visa application. The Tribunal takes the view that applicants are not necessarily in a position to question whether an employer’s ABN is current at particular points in time. Based on the written evidence submitted the Tribunal finds that the applicant undertook the specified work in good faith, good records were kept by the employer and the applicant and there is nothing before the Tribunal that indicates that there would be any reason for the applicant to check the currency of the ABN.

29) The Tribunal has also taken into account that the employer’s ABN was previously and subsequently a genuine ABN and therefore there is no evidence before it that a fraudulent ABN was being used by the employer or the applicant.

30)  In addition, the Tribunal has given positive weight to the evidence that the employer complied with Australian taxation and superannuation law. This further indicates that neither the applicant nor the employer were attempting any unscrupulous practices to undermine Australia’s working holiday program. consideration, the Tribunal fin

31) Taking into account all of these factors, the Tribunal is satisfied the applicant satisfied cl.417.211(5).

32) 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

33) 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.

Linda Holub

Member