Jones (Migration)

[2017] AATA 487

Jones (Migration) [2017] AATA 487 (20 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huw Jones

CASE NUMBER:  1618539

DIBP REFERENCE(S):  BCC2016/2714325

MEMBER:Meena Sripathy

DATE:20 March 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.417.211(5) of Schedule 2 to the Regulations.

Statement made on 20 March 2017 at 11:28am

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – cl 417.211 – Three months specified work in regional Australia – Tending to vines – Piecework basis on various farms – Bank account records – Plant and animal cultivation

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 417.211(5)

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 24 October 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 16 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.417.211(5) and therefore cl.417.221 because the delegate was not satisfied on the evidence provided that the applicant completed the equivalent of three months specified regional work.  The delegate indicated that the evidence of payslips provided by the applicant indicated he was paid on a piece work basis and there was insufficient evidence to determine the number of hours worked.

4. The applicant appeared before the Tribunal on 20 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Larry Carvahlo from One Big Family Farms.  Relevant details from the evidence obtained at the hearing is included in the discussion below.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. 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 Working Holiday Visa – Definitions of Specified Work and Regional Australia, IMMI 16/041 commencing on 1 July 2016 and applicable to visa applications made between 1 July 2016 and 19 September 2016. 

7. In his application for the visa the applicant declared he undertook specified work at PGI Adventure Camps Pty Ltd (ABN 98167191997) from 14 to 18 January 2016 in the 3444 postcode area and One Big Family (ABN 93970577154) from 21 January to 26 April 2016 in the 3505 post code area.   He provided to the Department evidence in support including a Completed Form 1263 Employment Verification Form; Job description; bank statements and payslips.

8. The applicant provided the following further evidence to the Tribunal:

   ·Payslips from One Big Family for the periods 15 January– 28 April 2016;

   ·Photographs of vines and applicant and fellow worker;

   ·Extract from a Piecework agreement purporting to relate to the One Big Family employer

   ·Payslips for employment at Collins Bros Orchards Pty Ltd for periods 1-14 August 2016 and 22-22 August -4 September 2016 also on a piecework basis;

   ·Banks statements for period 1 January -30 June 2016;

   ·Form 1263 Employment Verification relating to 24 days employment between 1 August to 2 September 2016 at Colins Bros orchards Pemberton WA 6260

9. At the hearing the applicant told the Tribunal the following about the work he completed: He arrived in Australia in October 2015.  He worked as a kayak instructor in Kyneton Victoria for PGL Adventure Camps prior to doing the farm work in Mildura Victoria.  He confirmed the periods of employment as per the payslips he provided as evidence to the Department. Following this he went overseas to Asia and when he returned he did some more farm work in Western Australia with Collins Brothers Orchards.  This work was from August 2016 to September 2016.  The Tribunal explained to the applicant that as this was after the date of the present visa application this work cannot be considered for the purposes of the specified work requirement criteria.  Regarding his work for One Big Family farms, he explained he worked removing and tending to vines on various farms.  He stayed in a hostel organised by the employer and the work and transport was arranged by the hostel/employer. He worked on a piecework basis.  He has provided evidence of the agreement signed. Money was deducted from his pay for accommodation and transport. He was paid into his bank account, evidence of statements has been provided.  He worked from 5-6 am in the morning until around 3 pm in the afternoon, depending on the heat. He worked on average 7-8 hours and day, 6 days a week for the full period. 

10. The Tribunal called Mr Larry Carvallo during the hearing.  He confirmed that the applicant worked for him in January 2016 for 3-4 months.  He described the work he did, tending vines.  He confirmed that the applicant lived at the hostel and was transported each morning with other workers out to the farms.  He worked 7-8 hours a day, 6 days a week. 

11. Having considered the evidence now before it, the Tribunal accepts that the work declared by the applicant comes within the ‘plant and animal cultivation’ category specified in the relevant instrument, and the postcode 3505 declared is included as a specified postcode.  The Tribunal accepts on the payslips and bank statement evidence provided that the applicant undertook the equivalent of three months work.  It is satisfied on the basis of his and his witness’s oral evidence and documentation that the work was full time, and the bank statement transactions support that he was in the vicinity of the claimed employment. The applicant provided evidence of a piecework agreement mutually agreed by himself and his employer, and on this basis the Tribunal accepts he was remunerated in accordance with relevant Australian legislation and awards.

12. Departmental records and the applicant’s evidence indicate that he arrived in Australia on 13 October 2015 on a subclass 417 visa which was valid until 13 October  2016.   Therefore on the evidence before it, the Tribunal accepts the applicant carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

13. Therefore the applicant satisfies cl.417.211(5). 

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.

    Meena Sripathy

    
    

    Member