Lynch (Migration)

[2020] AATA 4374

Lynch (Migration) [2020] AATA 4374 (14 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Emma Louise Lynch

CASE NUMBER:  1832347

HOME AFFAIRS REFERENCE(S):          BCC2018/2312271

MEMBER:Susan Trotter

DATE:14 August 2020

PLACE OF DECISION:  Brisbane

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 14 August 2020 at 5:39pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) (Extension) – specified work in regional Australia – evidence of Worker Agreement and employment records – remuneration in accordance with Australian legislation and awards – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cl 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 18 October 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, a now 33-year-old citizen of the United Kingdom, applied for the visa on 29 May 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 the applicant had provided sufficient evidence to verify that she had completed three months specified work in regional Australia as required.

4. The applicant lodged an application for review of this decision with the Tribunal on 3 November 2018.

5. The Tribunal has received the following additional documentation from the applicant:

   (a)  Bank statements from December 2017 to May 2018;

   (b)  Payslips from January 2018 to May 2018;

   (c)   Taylor Family Produce Workers Agreement dated 20 December 2017 signed by the applicant and ‘C Taylor’ for Taylor Family Produce;

   (d)  Taylor Family Produce Employee Information Kit;

   (e)  Employee Information and Pre-Employment Health Declaration dated 19 December 2017;

   (f)    Employee Induction Checklist dated 19 December 2017;

   (g)  Employment Acceptance Form dated 20 December 2017;

   (h)  PAYG payment summary for the applicant from Payer – WJ Taylor & KJ Taylor Family Trust T/A Taylor Family Produce.

6. 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 further material provided by the applicant to the Tribunal (s.360(2)(a) of the Act).

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

   ISSUES

8. The issue in this case is whether the applicant meets the prescribed requirements specified in cl.417.211(5)(a) and (b) of Schedule 2 to the Regulations.

9. Subclauses 417.211(5)(a) and (b), as at the date of the applicant’s visa application, required, that at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months full-time (or equivalent) as the holder of a Working Holiday visa. ‘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 – Specified Work and Regional Australia) Instrument 2017.

10. Relevantly to this case “regional Australia” includes Queensland postcodes 4307 to 4499 and “specified work”: includes:

    (7)(2) Plant and animal cultivation

    (a)   the harvesting and/or packing of fruit and vegetable crops;

    (b)   pruning and trimming vines and trees;

    (c)   general maintenance crop work;

    (d)   cultivating or propagating plants, fungi or their products or parts;

    (e)   immediate processing of plant products;

    (f)    maintaining animals for the purpose of selling them or their bodily produce, including natural increase;

    (g)   immediate processing of animal products including shearing, butchery, packing and tanning;

    (h)   manufacturing dairy produce from raw material.

11. 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. The Tribunal notes, however, that cl.417.211 does not on its face require the work to be done on a full-time basis. Further, the instrument for ‘specified work’ refers only to ‘any type of work identified in the list below’ and does not explicitly require the work to be conducted on a full-time basis.

12. Subclause 417.211(5)(c), as at the date of the applicant’s visa application, requires that the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

13. It follows that the issues for the Tribunal to determine are:

    (a)  Has the applicant carried out specified work in regional Australia? And, if so,

    (b)  Was the total period of the work carried out at least, or equivalent to, three months full-time work? And, if so,

    (c)   Was the applicant renumerated for the work in accordance with relevant Australian legislation and awards?

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant was granted a Working Holiday (Subclass 417) visa on 10 August 2017 and arrived in Australia on 5 December 2017. Her visa ceased on 5 December 2018 and she has been the holder of bridging visas since that time.

15. In the Decision Record, the delegate stated that they were not satisfied that the applicant had provided sufficient evidence to verify that she had completed three months specified work in regional Australia as required.

16. The Tribunal has received additional documentation addressing this issue as itemised above.

    Issue 1 - Has the applicant carried out specified work in regional Australia?

17. The visa application and accompanying documents state that the applicant undertook specific work in regional Australia for 3 months in the Agriculture, Forestry and Fishing industry by working as a farm hand by Taylor Family Produce from 21 December 2017 to 30 April 2018.

18. The applicant’s work questionnaire states that her duties were ‘planting celery, broccoli, other types of vegetables, packing broccoli, silver beet and celery and chipping & weeding’.

19. The Tribunal finds by reference to the evidence of the applicant and the documentary evidence before it the applicant performed ‘specified work’, specifically plant cultivation, by carrying out work as a farm hand at Amiens, Queensland, postcode 4380, which postcode is in an area designated as regional Australia in IMMI 17/018.

20. The Tribunal is therefore satisfied that the applicant carried out specified work in regional Australia as required.

    Issue 2 – Was the total period of the work carried out at least, or equivalent to, three months full-time work?

21. Based upon the documentary evidence down provided, in particular the payslips for the relevant period, with bank statements showing corresponding deposits of pay to the applicant’s bank account and the payment summary, the Tribunal is satisfied that the total period of the work carried out by the applicant for Taylor Family Produce between

22. The Tribunal accepts the evidence before it and is satisfied that the applicant worked full-time for Taylor Family Produce from 19 December 2017 to 24 April 2018. It follows that the Tribunal is satisfied that the total period of work carried out by the applicant was at least three months full-time work.

    Issue 3 - Was the applicant renumerated for the work in accordance with relevant Australian legislation and awards?

23. Departmental Guidelines (PAM3), which are not binding upon the Tribunal but are a relevant consideration for the Tribunal to take into account, relevantly provide as follows:

    Remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history. In the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted. In identified instances of inadequate remuneration, its officers should refer this to the Fair Work Ombudsman for investigation.

    and further that

    The national minimum hourly wage (before tax) for 2015-2016 is AUD 17.29. This is AUD 656.90 for a 38 hour week. Casual employees also receive a casual loading of at least a 25% on this base rate.

24. Notably, beginning 1 July 2017, the national minimal hourly wage increased to $18.29 per hour[1], that is $22.86 including a 25% casual loading. The evidence before the Tribunal shows that the applicant was paid at hourly rate of $22.86 during the relevant period. On this basis the Tribunal is satisfied that the applicant was remunerated in accordance with Australian legislation and awards and meets cl.417.211(5)(c). Therefore, the applicant satisfies cl.417.211(5).

    Conclusion

    [1] >

    Paragraph 8.2 of the Tribunal’s President’s Direction – Conducting Migration and Refugee Reviews (1 August 2018) states that as a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters. However, given the relevance of cl.417.211(5)(c) to the issues the subject of the delegate’s decision, the Tribunal also considered whether that subclause is met.

25. The Tribunal has found that cl.417.211(5)(a), (b) and (c) are all satisfied such that cl.417.211(5) is satisfied overall.

26. Given the Tribunal’s findings, 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

27. 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.