Goodwin (Migration)

[2017] AATA 1043

Goodwin (Migration) [2017] AATA 1043 (14 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Samantha Melanie Goodwin

CASE NUMBER:  1700367

DIBP REFERENCE(S):  BCC2016/2778860

MEMBER:B. Mericourt

DATE:14 June 2017

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.417.221 of Schedule 2 to the Regulations.

Statement made on 14 June 2017 at 12:08pm

CATCHWORDS
Migration – Working Holiday (Temporary)(Class TZ) – Subclass 417 (Working Holiday) – Remuneration for work – 3 months’ full-time – 28 days’ unpaid work included – Undertook specified work in regional area for total of 72 days full-time

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 417.111, cl 417.211(5)(a)-(c), IMMI 16/041, r 1.03

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 Immigration on 20 December 2016 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 22 August 2016. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417211(5) because the delegate was not satisfied that the applicant had been remunerated for her work in accordance with relevant Australian legislation and awards as prescribed in Regulation 417.211(5)(c). 

4. On 9 January 2017 the applicant lodged an application for review of the Department’s decision with the Tribunal.

5. The applicant appeared before the Tribunal on 14 June 2017 to give evidence and present arguments.

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

   BACKGROUND

7. The applicant was born in 1991 in the UK and is a citizen of the UK.  On 12 March 2015 she was granted a working holiday visa (subclass 417) and she entered Australia on 12 September 2015.  Her visa ceased on 12 September 2016.  On 22 August 2016 she lodged an application for a 12 month extension of her working holiday visa.

8. The applicant provided the Department with following supporting information:

   ·weekly and end of employment pay slips from ABGD Family Trust for the period 10 December 2015 to 17 January 2016 indicating the applicant worked for an average of 38 hours a week at the rate of $12.98 per hour;

   ·weekly pay slips from Consolidated Pastoral Company P/L for the period 27 April to 29 July 2016 indicating she was paid at an award rate of $160.28 per day in accordance with the Consolidated Pastoral Company Enterprise Agreement 2014;

   ·Forms 1263 signed by both employers;

   ·WHM specified work questionnaire for both employers;

   ·letter of agreement have expenses deducted from wages by employer ABG dear Family Trust;

   ·employment agreement from Consolidated Pastoral Company P/L to have expenses deducted at a set amount per week. 

9. The delegate was satisfied that the applicant had undertaken specified work in a regional area for the equivalent of three months full-time.  However, she was not satisfied that the applicant had been paid according to Australian award rates.

10. The applicant provided the Tribunal with the following:

    ·     Form 1263 signed by Elizabeth Jane Petrovich in Upper Turon, NSW indicating the applicant was contracted to work for a period of 28 days from 28 September to 31 October 2015 in animal husbandry;

    ·     Form 1263 signed by Tegan Allen of Newcastle Waters Station indicating the applicant was contracted to work as a station hand from 10 May to 27 July 2016 for a total of 64.5 days

    ·     

    a letter from the applicant stating that she had not provided information to the Department about these two employers as she was not paid money for her work and was not sure it would “count as specified work”.  In total she completed 89.5 days of specified work as the holder of a working holiday visa.

    
    
    

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant has completed the equivalent of three months full-time specified work in a regional area and, if so, whether she was remunerated in accordance with Australian legislation and awards as prescribed in Regulation 417.211(5)(c) for specified work she undertook after 1 December 2015.

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

12. 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 is IMMI 16/041 commencing on 1 July 2016 and applicable to visa applications made between 1 July 2016 and 19 September 2016.

13. The term 'work' is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.

14. 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. Full-time work in an 88 day period would be roughly 62.5 full working days. 

15. Based on the supporting documents provided to the Department and to the Tribunal the Tribunal is satisfied that the applicant undertook specified work in regional areas for the following periods;

    ·full-time work unpaid work for  Elizabeth Jane Petrovich for a period of 28 days from 28 September to 31 October 2015;

    ·full-time work for ABGD Family Trust for the period 10 December 2015 to 18 January 2016 paid at below award wages ($12.98 per hour);

    ·full-time work for Newcastle Waters Station (Consolidated Pastoral Company P/L) for the period 10 May to 27 July 2016 paid at award wages ($160.28 per day) for a total of 44 days.

16. Based on the documents provided to the Tribunal and to the Department, the Tribunal is satisfied that the work is ‘specified work’ undertaken in a regional area for the equivalent of three months full-time.

17. The Tribunal therefore finds the applicant satisfies cl.417.211(5)(a)&(b)

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

18. The regulation (r.417.211(5)(c) related to the requirement for the applicant to be remunerated in accordance with Australian legislation and awards applies for specified work undertaken after 1 December 2015.

19. The Tribunal is satisfied that the 28 days of unpaid animal husbandry work the applicant undertook for Elizabeth Jane Petrovich prior to 1 December 2015 can be included in the calculation of hours of specified work whilst the applicant is the holder of a working holiday visa. 

20. Based on the applicant’s pay advice slips, the Tribunal is satisfied that Newcastle Waters Station (Consolidated Pastoral Company P/L) paid the applicant a total of $7039.38 gross.  If she was paid at $160.28 gross per day award wages in accordance with Australian legislation this indicates that she undertook specified work for a total of 44 days at award wages.

21. Based on the above evidence the Tribunal is satisfied that the applicant undertook specified work in a regional area for a total of 28 days prior to 1 December 2015 and for a total of 44 days during which she was paid award wages after 1 December 2015.

22. The tribunal is therefore satisfied that the applicant undertook specified work in regional areas for a total of 72 days full-time in accordance with the relevant regulations and consequently she satisfies cl.417.221.

23. 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

24. 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.417.221 of Schedule 2 to the Regulations.

    B. Mericourt

    
    

    Member