McGuinness (Migration)

[2020] AATA 3862

McGuinness (Migration) [2020] AATA 3862 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Benn Louis McGuinness

CASE NUMBER:  1822744

HOME AFFAIRS REFERENCE(S):          BCC2018/1227648

MEMBER:Moira Brophy

DATE:16 September 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 16 September 2020 at 1:33pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – remunerated according to legislation and awards – employment verification form and payslips provided to tribunal – days worked – returned to home country, but wants to be found to have complied with requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5), 417.221

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 30 July 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 14 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.417.221.

3. The applicant is a 29-year-old citizen of the United Kingdom. He first came to Australia on 10 April 2017 as the holder of a Working Holiday (Temporary) (class TZ) visa. He is seeking a further twelve-month working holiday visa.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because delegate found that the applicant had not provided evidence that he had been remunerated for carrying out specified work in regional Australia in accordance with relevant Australian legislation and awards.

5. This is an application for review of that decision. Relevantly to his application for the visa, the applicant provided a copy of the delegate's decision record, PAYG summary to 2018, pay slips from Moxey Farms Pty Ltd, HR Pay Summary from Australian Fresh Milk Holdings for period from 27 August 2017 to 3 December 2017, letter confirming offer employment with employment conditions from the Human Resources department at Moxey farms, signed and dated by both the company and the applicant on 16 August 2017.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The review applicant, Mr Benn Louis McGuiness evidence and presented arguments on 14 September 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant satisfies the criteria in cl.417.211(5) at the time of decision. Essentially the enquiry is whether the applicant was, for the specified work carried out, remunerated in accordance with relevant legislation and awards.

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

10. 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 Working Holiday Visa Definition of Specified Work and Regional Australia (sub item 1225(5).

11. Following the application for the visa the delegate requested further evidence to process the visa application. A checklist and information sheet was provided to assist the applicant in identifying relevant documents.

12. The applicant provided a Form 1263 Employment Verification Form signed by his employer and that document showed he had worked with Moxey Farms Pty Ltd, Gooloogong between 10 August 2017 and 30 November 2017. He worked for 8 hours a day, 5 days a week This document showed that the applicant worked in the 2805 postcode area. He also provided pay slips.

13. The delegate found that with respect to the applicant's work he had not provided a third party information to corroborate as he had been requested and the delegate could therefore not be satisfied that the applicant had carried out the specified periods of specified work in accordance with relevant Australian legislation and awards.

14. At the time of review the applicant submitted he had provided what he considered to be all the information required to make a favourable decision. He submitted he has returned to United Kingdom, but it was important to him that he be found to have at all time complied with the requirements of the Working Holiday visa.

15. At the time of hearing the Tribunal had before it a copy of PAYG summary to 2018, pay slips from Moxey Farms Pty Ltd, HR Pay Summary from Australian Fresh Milk Holdings for period from 9 August 2017 to 3 December 2017, letter confirming offer of employment with employment conditions from the Human Resources department at Moxey farms, signed and dated by both the company and the applicant on 16 August 2017.

16. Having considered the evidence 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, that is, dairy farming. And that postcode 2805 is a specified postcode.

17. Departmental records indicate that the applicant arrived in Australia on 10 April 2017 on a Subclass 417 visa which was valid until 10 April 2018. On the basis of the documents provided the Tribunal accepts the applicant has worked for 79 days in specified work in a regional area. The Tribunal accepts on the basis of the pay slips provided and the amount of work undertaken that the applicant undertook the equivalent of three months work. It is satisfied on the basis of the employment verification form, the applicant's submissions and information publicly available on the location of the farm and the contractor companies that the applicant worked in the regional area specified. The applicant provided evidence of employment agreements mutually agreed by himself and his employers, and on this basis the Tribunal accepts he was remunerated in accordance with relevant Australian legislation and awards.

18. 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.

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

20. 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

21. 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