Madeira (Migration)

[2021] AATA 1903

Madeira (Migration) [2021] AATA 1903 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Krysten Fontes Madeira

CASE NUMBER:  1908715

HOME AFFAIRS REFERENCE(S):          BCC2019/116679

MEMBER:Anne Grant

DATE:7 May 2021

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations.

Statement made on 07 May 2021 at 11:54am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – method of calculating full-time work – extensive work documentation – 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 4 April 2019 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 21 January 2019. 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)(a) because they were not satisfied that she had completed the required period of work.   

4. The applicant appeared before the Tribunal on 6 May 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has carried out the requisite specified work in regional Australia.

7. 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 at the time of her application was IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia.   It is currently LIN 20/182: Subclass 417 (Working Holiday) visa—Specified work and places) Instrument 2020.  The Tribunal is satisfied that the changes do not have any meaningful effect on this review.

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

8. The applicant has provided extensive documentation showing her work, her pay and her bank account information.   That information initially appears to suggest that the applicant worked 67 days at Kalafatis Farm between 8 March 2018 to 20 June 2018 and 13 days between 23 October 2018 to 9 November 2018 at a farm in Mooloolaba for MADEC Labour Hire. These two figures add to only 80 days.

9. At hearing, the Applicant also tendered a worksheet showing how she calculated her 88 days worked.  She confirmed that she only counted the days actually worked where she worked less than a full time work week at Kalafatis farm.  On weeks where she worked a full time (or greater than full time) work week of 35 or more hours per week she included the weekend.  In this way, the applicant worked a total of 67 days at Kalafatis farms (which is also supported by the employment report provided by the employer).  The applicant also worked for three weeks in Mooloolooba with MADEC Labour Hire.  On each of those three weeks, the applicant has been paid for full time work of more than 40 hours per week.  The applicant claims, and it appears to be so, that there has been an error in the calculation made which ignored the weekends despite the applicant working full time over those three weeks.    Although she finished work on Friday the 9 November, the applicant considers that the full week should be included in the assessment of days, bringing them to three weeks and 21 days. 

10. The applicant has provided payslips, bank statements and confirmation of the work she completed.  The issue is whether the applicant’s calculations demonstrate that she has completed her three month period – and essentially, whether the three full weeks in Mooloolaba can be added in full to complete her 88 day requirement.  The Tribunal accepts that in each of those three weeks she worked more than 40 hours. 

11. The Tribunal has had regard to the departmental policy, to assist in considering whether the applicant has appropriately demonstrated and calculated the work she completed.  The Tribunal notes the following guidance: 

    Meaning of 3 months

    Under policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year. One full day of work is defined as having worked the minimum number of hours considered a standard day by the particular industry in which the applicant is employed. Generally, the Australian working week is 35 to 40 hours, comprising 7 to 8 hours of work each day. Individual employers cannot set a smaller period of time than the industry standard to satisfy the specified work requirement.

    In calculating the period of time for which the applicant has undertaken specified work, the type of employment relationship the applicant may have with their employer, including full/part time employment, casual employment or voluntary employment, is not as important as whether the relevant industry considers the period of work completed to be equivalent to full time work for that industry. For example, if the applicant’s paid employment involved 2 weeks on and then 2 weeks off, and this is standard practice in the industry, the applicant would be considered to have worked for 4 weeks (28 days). If the employer is satisfied that the applicant has undertaken the equivalent of full time work for that industry for the specified period, delegates may be satisfied that the applicant has undertaken full time work for the specified period.

    Applicants whose work is equivalent to full time employment may count weekends in the 88 day period. However, if the applicant’s work is not equivalent to full time employment, that is, part time or casual, they may only count the full days actually worked.

    If the applicant is employed by more than one employer at the same time, they may only count each calendar day of work completed once towards their 88 day specified work requirement.

    The shortest period that may be counted towards the specified work requirement is 1 day of full time work (for that industry). Applicants cannot count a long day of work as more than one day of specified work. For example, if the industry’s standard day is 6 hours long, working a 12 hour day does not count as two days of specified work.

    An applicant may count sick days only during periods they were employed (that is, paid) and entitled to sick leave or covered by a workers compensation scheme. Days may also be counted if the applicant was employed (that is, paid) but was unable to work because of climatic conditions (for example, cyclone). In these situations, supporting evidence should be provided from the employer by the applicant. Casual workers who were prevented from working because of injury or climatic conditions (for example, cyclone) cannot count any time they were unable to work towards the 3 month period.

    Examples that meet the 3 month specified work requirement

    Weekends - The applicant works on a farm for 3 months, from Monday to Friday each week, with Saturday and Sunday off.

    In this instance, the weekends do not have to be “deducted” from the total 3 months, and the applicant is considered to have worked 7 days each week.

    Cyclical work - The applicant completes 3 months of specified work in regular monthly cycles, working 21 consecutive days, followed by a period of 7 days off. This monthly cycle is the industry standard for the type of work.

    Shift work - The applicant is employed to harvest oysters for 3 months, and under the employment contract is only required to work every second week, and has every other week off.

    Blocks of work - The applicant completes 60 days of specified work, followed by a period of travel for 2 months. They then complete another 28 days of specified work.

12. The Tribunal considers it is reasonable to take a sensible approach when assessing work completed in remote and rural Australia on flexible and demanding work schedules which vary from week to week depending on the employer’s requirements.  The Tribunal considers that the applicant has completed some shorter working weeks as well as full time working weeks at Kalafatis and then worked full time for three weeks at Mooloolabah. The Tribunal considers that the the applicant’s method of calculation is broadly consistent with the policy guidance, particularly because she has discounted weekends on weeks where she did not complete a full time working week.     

13. The Tribunal therefore concludes that the method of calculation used by the applicant is consistent with policy and she has provided a significant amount of supporting information showing that she worked and was appropriately paid for the requisite 88 days. 

14. The Tribunal is satisfied that the applicant worked a total of 88 days, that the work was the equivalent of at least three months full time work, was specified work as set out in the instrument and was in regional Australia.  The Tribunal is also satisfied that the work was remunerated in accordance with relevant Australian legislation and awards. 

15. Although the passage of time since her application was lodged will render the outcome somewhat moot, the Tribunal is satisfied that the applicant satisfies the requirements in cl 417.211(5).      

16. 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

17. 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.

    Anne Grant

    
    

    Member