LIN (Migration)

[2020] AATA 850

LIN (Migration) [2020] AATA 850 (10 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Te-Fa Lin

CASE NUMBER:  1822928

HOME AFFAIRS REFERENCE(S):          BCC2018/1141010

MEMBER:Moira Brophy

DATE:10 February 2020

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 10 February 2020 at 3:09pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – evidence provided regarding specified regional work– period of three months full time work requirement met – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

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 3 August 2018 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 9 March 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied that that the work described in the WHMs specified work questionnaire and undertaken by the applicant was ‘specified work’ as specified in the relevant legislative instrument, IMMI 17/018 and that they had been remunerated for that work in accordance with the relevant legislation.

4. The applicant appeared before the Tribunal on 22 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

7. The applicant is a 30 year old national of Taiwan who arrived in Australia on 21 August 2005 as the holder of a UD 976 Visa which was valid till 15 August 2006. The applicant departed on 26 August 2005 on the same visa. On 6 April 2017 the applicant again arrived on a TZ 417 visa. Since then the applicant has travelled on a Bridging Visa WB 020. On 9 March 2018, the applicant lodged this application for a Working Holiday (Extension) (Onshore) TZ 417 visa. 

8. A visa cannot be granted unless the visa applicant satisfies regulation 417.211(5). Regulation 417.211(5) states:

   If the applicant is, or has previously been, in Australia as the holder of a Subclass 417visa, the Minister is satisfied that:

   (a)  the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

   (b)  the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

   (c)   the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

   * specified work means work of a kind specified by the Minister in an instrument in writing for the definition of specified work in sub-item 1225(5) of Schedule 1. A list of specified work definitions can be found in Legislative Instrument “IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia”.

9. The applicant declared they undertook specified work with the following employer/s:

   ABN 99 607 221 554, registered as GGPB POWER PTY LTD from 17 October 2017 to 4 March 2018 in postcode area 2680.

10. In support of this applicant the following documents were provided to the Department :

    ·     ID Card issued by GGPB, ABN 99607221554

    ·     Completed WHM 417 Specified work questionnaire

    ·     Employment Verification form 1263

    ·     Copy of applicant’s passport

    ·     Wedding Invitation

    ·     Photos of applicant

    ·     Non-translated documents in language other than English

11. In support of this applicant the following documents were provided to the Tribunal:

    ·     ID Card issued by GGPB, ABN 99607221554

    ·     Photo of applicant displaying his ID card

    ·     23 x pay slips issued GGPB POWER PTY LTD

    ·     Applicant’s PAYG payment summary

    ·     Copy of applicant’s passport

    ·     Copy of applicant’s super statement

    ·     Copy of applicant’s Commonwealth bank statements.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant satisfies the criteria in cl.417.211(5). Essentially the enquiry is whether the applicant was performing the requisite specified work in regional Australia during the relevant period, and if so was he properly remunerated for that work.

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

13. 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 17/018 Working Holiday Visa Definition of Specified Work and Regional Australia (sub item 1225(5).

14. The applicant described to the Tribunal the processes involved in the work he undertook which consisted of cutting up and packing of chicken meat. The applicant said he had undertaken the described work in the Griffith (postcode 2680) for 16 weeks (from 17 October 2017 to 4 March 2018). This evidence was corroborated by the email dated 25 November 2019 from Choy, GGPB Power Pty Ltd, Australian Super record of transactions in applicant’s name, the PAYG payment summary for period from 17 October 2017 to 22 April 2018, bank statements and photographs.

15. The Tribunal was mindful of the Australian New Zealand Standard Industrial Classification (ANZSIC) in determining whether the work undertaken by the applicant was specified work for the purposes of satisfying the definition in 1225(5) of Schedule 1. In his application the applicant had referred to performing work as a packer. 

16. The Tribunal considered the evidence given by the applicant to be credible and accepts his evidence as to work he did.

17. The Tribunal carefully considered the evidence of the applicant and taking a purposive approach in interpreting the legislation the Tribunal was satisfied the work he described fell within the category ‘plant and animal cultivation.’ Having had regard to all matters, the Tribunal is satisfied that the applicant's work with GGPB Pty Ltd was integral to immediate processing of animal products and therefore was of a kind that amounts to plant and animal cultivation such that it was specified work within the meaning of IMMI 17/018.

18. The Tribunal is satisfied that in his employment with GGPB Pty Ltd, the applicant was therefore undertaking specified work in the nature of plant and animal cultivation as contemplated by cl.7(2)(e) of IMMI 17/018.

19. It follows that the applicant has carried out a period of specified work in regional Australia as the holder of a Subclass 417 visa.

20. Clause 417.211(5)(a) is therefore met.

21. Pay slips of the applicant in evidence show that the applicant was paid by GGPB Pty Ltd for full-time work, from 17 October 2017 to 4 March 2018.

22. Having had regard to this evidence, the Tribunal is satisfied that the total period of the work carried out was at least equivalent to three months full-time work.

23. Clause 417.211(5) (b) is therefore met.

24. On the basis of evidence given at hearing in addition to the information provided prior to hearing including pays lips, PAYG summary and bank statements the Tribunal accepts the applicant was remunerated in accordance with relevant Australian legislation and awards.

25. Departmental guidelines (which are not binding on the Tribunal although it is reasonable to have regard to them) state that the remuneration verification contemplated in this provision is intended to be a relatively 'light touch' processing check rather than an exhaustive analysis of the applicant's pay rate history.

26. 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 three months as the holder of a working holiday visa.

27. Therefore, the applicant satisfies cl.417.211(5)(c).

28. 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

29. 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.

    Moira Brophy

    
    

    Member