Martineau (Migration)

[2017] AATA 867

Martineau (Migration) [2017] AATA 867 (10 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francis Martineau

CASE NUMBER:  1700573

DIBP REFERENCE(S):  BCC2016/3398885

MEMBER:Meena Sripathy

DATE:10 May 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 10 May 2017 at 12:30pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Specified work – Evidence – Piecework agreements – Equivalent of 88 days full-time work

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 417, cl 417.211, IMMI 16/087

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 9 January 2017 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 13 October 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because no evidence was provided to support the claimed employment completed.

4. The applicant appeared before the Tribunal by telephone on 5 May 2017 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

   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 IMMI 16/087 which applies to applications made after 16 September 2016.

7. In his application for the visa the applicant declared he undertook specified work at Monduran Station Unit Trust (ABN 49527967759) from 25 April to 27 May 2016 in the 4660 post code area, and with Twist Bros (ABN 95077467479) from 2 June 2016 to 19 August 2016 in the 4555 postcode area.  

8. The applicant was requested to provide evidence to support his claimed employment on 18 November 2016, but no further evidence was provided to the Department and the application was refused on the basis that the employment could not be verified.

9. Before the Tribunal the applicant provided the following documents: completed Form 1263 Employment Verification forms relating to his employment for 63 days with Twist Bros Pty Ltd and 25 days at Monduran Orchards picking strawberries and fruit; PAYG Payment Summary from Monduran Station Trust indicating $3076 gross payments for the period 25 April to 3 June 2016 and 4 payslips covering 4 weeks in the period 18 July to 15 August 2016 from Twist Bros Pty Ltd, indicating gross payments of $5026.89 by 15 August 2016.

10. The applicant appeared before the Tribunal by telephone hearing on 5 May 2016 and provided the following evidence. He confirmed he arrived in Australia on 27 November 2015 on a 417 visa.  He travelled to Childers in Queensland to commence his regional work in April 2016.  He did 25 days there picking citrus fruits.  Then the farm closed down and all the workers were told to leave as there was no more work.  He moved to Brisbane after that and looked for more work. He found work on the Sunshine Coast at Twist Brothers picking strawberries.  He did this work for 63 days.  The Tribunal asked the applicant how he was paid for this work.  He said he was paid by the bin for the citrus picking and by piecework for the strawberries also. The Tribunal asked him if he had signed a piecework agreement before he started. He said there was some paperwork and he assumes he did.  He will contact the employer and get this documentation.  The Tribunal also asked if he could provide bank statements to show deposits of his pay and transactions that place him in these places.  The applicant described the hours he worked in each of the jobs and the work performed.

11. On 9 May 2017 the applicant provided copies of piecework agreements for each of the periods of employment, and bank statements covering some of the periods of employment and showing deposits of pay and transaction evidencing him in those locations. 

12. 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 postcodes 4660 and 4555 declared are included as specified postcodes and the applicant meets cl.417.211(5)(a).

13. The Tribunal accepts on the evidence of the signed form 1263s, payslips and PAYG payment summaries and bank statements that the applicant undertook the equivalent of at least three months (or 88 days) full time work. It is satisfied on the applicant’s oral evidence, Form 1263’s, piecework agreements and amount of pay that the work was full time and he was remunerated in accordance with Australian legislation and awards and he meets cl.417.211(5)(b) and (c).

14. Departmental records before the Tribunal indicate that he arrived in Australia on 27 November 2015 on a subclass 417 visa which was valid until 27 November 2016.  

15. 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 and therefore he satisfies cl.417.211(5).

16. Therefore, the applicant satisfies cl.417.211(5).

17. 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

18. 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