McKeown (Migration)

[2021] AATA 2252

McKeown (Migration) [2021] AATA 2252 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Liam James MCKEOWN

CASE NUMBER:  2016452

HOME AFFAIRS REFERENCE(S):          BCC2020/2317882

MEMBER:Nathan Goetz

DATE:18 May 2021

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)(b) of Schedule 2 to the Regulations.

Statement made on 18 May 2021 at 9:53am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – whether ‘the total period of work carried out is at least 3 months’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 4.21; Schedule 2, cl 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 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a male citizen of the United Kingdom of Great Britain and Northern Ireland.

3. On 13 February 2006 the applicant was offshore and granted a visitor visa. He arrived in Australia holding that visa on 23 March 2006. He departed Australia on 14 April 2006.

4. On 31 October 2013 the applicant was offshore and granted another visitor visa. He arrived in Australia holding that visa on 4 February 2014. He departed Australia on 11 February 2014.

5. On 9 December 2019 the applicant was offshore and granted a working holiday visa. He arrived in Australia holding this visa on 18 January 2020.

6. On 17 September 2020 the applicant applied for a second working holiday visa. His earlier working holiday visa ceased on 18 January 2021.

7. At the time the visa application was lodged on 17 September 2020, 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 (Cth) (the Regulations).

8. On 22 October 2020 the delegate refused to grant the applicant the visa. The delegate was not satisfied that the applicant met cl.417.211(5)(b). As a result of this, the applicant failed to satisfy cl.417.211(5) and therefore cl.417.211 in its entirety. As a result of failing to satisfy cl.417.211, the applicant failed to meet cl.417.221(2)(a) and therefore cl.417.221 in its entirety.

9. On 10 November 2020 the applicant applied to the Tribunal to review the refusal decision. The Tribunal reviewed the material it had but was unable to make a decision favourable to the applicant. Therefore, the Tribunal was required to invite the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review: s.360(1).

10.  On 7 May 2021 the Tribunal invited the applicant to appear at a Tribunal hearing commencing at 10:00am on 17 May 2021. The Tribunal obtained the applicant’s written consent to hold the Tribunal hearing earlier than the mandated notice period: r.4.21(4)(b)(ii).

11.  On 17 May 2021 the applicant appeared at the Tribunal hearing by telephone as he was resident in South Australia.

Criteria for the visa

12.  Clause 417.211(5)(b) requires that, at the time the applicant applied for the visa, the total period of work carried out was at least 3 months. Under Department Policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year.

CONSIDERATION OF CLAIMS AND EVIDENCE

Visa application form

13.  The applicant applied for the visa on 17 September 2020. He completed a visa application form.

14.  The applicant wrote that he had undertaken 3 months of specified work as the holder of his first working holiday visa. He was employed by WS & KA Rohrlach ABN 23273365052. This business was located in Nuriootpa, South Australia 5355. This work was described as direct employment in agriculture, forestry and fishing. The industry sub-group was described as plant and animal cultivation. He described his duties as pruning, removing and planting vines. He worked there from 21 May 2020 to 6 August 2020. The total hours worked was 422. The total days worked was 78 days. He was paid $24.70 per hour. Attached to the application was a letter dated 7 September 2020 from Kaylene A Rohrlach who declared that the applicant worked at the vineyards in the Barossa Valley between those periods. Ms Rohrlach was also identified in the application form as the applicant’s partner. The applicant provided a one-page screenshot of a ‘BankSA’ mobile phone app which showed he had $4,310.25 in his bank account.

15.  As noted in the delegate decision, the period between 21 May 2020 to 6 August 2020 was 78 days. It was on this basis that the delegate was not satisfied that the applicant met cl.417.211(5)(b).

Material provided to the Tribunal prior to the Tribunal hearing

16.  When the applicant applied to the Tribunal on 10 November 2020, he provided a letter from Damien Tscharke, who identified himself as the owner of Tscharke Wines Pty Ltd. The letter was dated 9 November 2020 and declared that on 8 August 2020 the applicant commenced employment with that business on a ‘casual full-time basis’ as a vineyard hand. It detailed the scope of his duties.

Oral evidence given at the Tribunal hearing

17.  The applicant confirmed that he worked for 78 days for WS & KA Rohrlach in South Australia as outlined in his visa application form. He told the Tribunal he stopped working there because that was the end of the pruning season. He told the Tribunal that he finished his work there and sent off the visa application form. He told the Tribunal that he thought he had completed the required 3 months. He realised he had not done so when he received the Decision Record from the delegate refusing the visa. It was then that he realised his mistake.

18.  The applicant confirmed that he started working at Tscharke Wines Pty Ltd on 8 August 2020. The Tribunal asked why he had not declared this work in his visa application form. He said that he did not think he needed to do so and attributed this to the miscalculation that he made concerning his employment at WS & KA Rohrlach. As the Tribunal understands the applicant’s oral evidence, he did not think he needed to declare his employment at Tscharke Wines Pty Ltd, as he had thought that he had completed 3 months’ worth of work at WS & KA Rohrlach.

19.  The Tribunal was initially sceptical about whether the applicant had in fact undertaken any work with Tscharke Wines Pty Ltd because the only evidence it had about this work was a letter that did not detail the amount of work that the applicant undertook with them, and given that this employment with the Tscharke Wines Pty Ltd was not declared in this visa application form (but apparently undertaken prior to submitting the visa application), the Tribunal suspected that the applicant had only completed the 78 days work at WS & KA Rohrlach, and realising that this was insufficient for the visa once he received the refusal letter, had generated, or caused to be generated, the letter from Tscharke Wines Pty Ltd to fabricate employment to make up the additional 10 days required to meet the 88 day requirement.

20.  The applicant said that this was not true. He told the Tribunal that he continues to be employed by Tscharke Wines Pty Ltd. The Tribunal hearing was stood down and the applicant was able to produce additional material to demonstrate that he had actually worked for Tscharke Wines Pty Ltd from 8 August 2020 as claimed.

21.  The applicant provided the Tribunal with the following additional evidence:

• A payslip marked PS1 for the pay period 01/08/200 to 15/08/2020 with a payment date of 15/08/2020 which declared that he worked 8.5000 ‘casual weekday hours,’ 14.6667 ‘casual Saturday hours’ and 3.0000 ‘casual Sunday hours.’

• A payslip marked PS2 for the pay period 16/08/2020 to 01/09/2020 with a payment date of 01/09/2020 which declared that he worked 49.5000 ‘casual weekday hours,’ 7.5000 ‘casual Saturday hours,’ and 24.000 ‘casual Sunday hours.’

• A payslip marked PS3 for the pay period 01/09/2020 to 15/09/2020 with a payment date of 16 September 2020 indicating that he worked 53.000 ‘casual weekday hours,’ 12.000 ‘casual Saturday hours,’ and 12.2500 ‘casual Sunday hours.’

• A payslip marked PS4 for the pay period 16/09/2020 to 01/10/2020 with a payment date of 01/10/2020 indicating that he worked 52.000 ‘casual weekday hours,’ 14.2500 ‘casual Saturday hours,’ and 12.7500 ‘casual Sunday hours.’ The Tribunal notes that the applicant applied for the visa on 17 September 2020, meaning that only the work undertaken on 16 September 2020 can be used to calculate whether he has completed 3 months’ work.

• Payslips marked PS5 to PS10 which were irrelevant to whether the applicant completed 3 months work at the time he applied for the visa on 17 September 2020 as the payslips post-dated that period.

• Document Paybook1.pdf which evidenced that the applicant worked on:

  §8 August 2020 for 6 hours and 15 minutes

  §9 August 2020 for 3 hours

  §14 August 2020 for 8 hours and 30 minutes

• Document Paybook2.pdf which evidenced that the applicant worked on:

  §15 August 2020 for 6 hours and 25 minutes

  §16 August 2020 for 6 hours and 30 minutes

  §17 August 2020 for 4 hours and 30 minutes

  §20 August 2020 for 4 hours and 30 minutes

  §21 August 2020 for 7 hours and 45 minutes

  §22 August 2929 for 7 hours and 30 minutes

  §23 August 2020 for 6 hours and 15 minutes

• Document Paybook3.pdf which evidenced that the applicant worked on:

  §24 August 2020 for 6 hours and 30 minutes

  §25 August 2020 for 9 hours and 15 minutes

  §26 August 2020 for 8 hours and 15 minutes

  §29 August 2020 for 6 hours and 30 minutes

  §30 August 2020 for 4 hours and 45 minutes

  §31 August 2020 for 8 hours and 45 minutes

  §2 September 2020 for 9 hours

  §4 September 2020 for 9 hours

  §5 September 2020 for 5 hours and 30 minutes

  §6 September 2020 for 6 hours and 30 minutes

• Document Paybook4.pdf which evidenced that the applicant worked on:

  §7 September 2020 for 9 hours

  §9 September 2020 for 8 hours and 45 minutes

  §11 September 2020 for 9 hours

  §12 September 2020 for 6 hours 30 minutes

  §13 September 2020 for 5 hours and 45 minutes

  §14 September 2020 for 8 hours 15 minutes

  §16 September 2020 for 8 hours and 30 minutes

• Documents Paybook5.pdf to Paybook12.pdf which were irrelevant to whether the applicant completed the outstanding 10 days work as the visa application date was 17 September 2020.

  FINDINGS AND REASONS

22.  The issue in this case is whether the applicant has completed 3 months work, which is deemed under policy to be 88 days.

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

24.  The Tribunal notes that the delegate took no issue with the claimed 78 days that the applicant completed with WS & KA Rohrlach. Indeed, the delegate appears to have accepted that the applicant undertook this work, as the delegate found that ‘in the absence of more information and evidence that the applicant worked more than 78 days of specified work, the applicant has not demonstrated that they worked for a period of 3 months.’ The Tribunal has no reason to depart from the delegate finding in that regard.

25.  When the Tribunal considers the evidence that the applicant provided in support of the contention that he had completed at least 10 days work with Tscharke Wines prior to applying for the visa on 17 September 2020, the Tribunal accepts that he has done so. 11 of those paybook records indicate that he worked more than 8 hours on a given day. It may be that in the circumstances of the applicant’s employment, (being pruning and vineyard work) even work that was undertaken for 3 hours may be sufficient to constitute a day. The Tribunal finds it unnecessary to consider that further, given the applicant has recorded 11 days work of 8 hours or more.

26.  Given all of the above, the Tribunal is satisfied that ‘the total period of work carried out is at least 3 months.

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

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.

29.  It will be incumbent on the applicant to demonstrate to the delegate that he meets the remaining criteria, such as demonstrating that the work carried out was ‘specified work in regional Australia’, and that the applicant has been remunerated for the work in accordance with the relevant Australian legislation and awards.

DECISION

30.  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)(b) of Schedule 2 to the Regulations.

  Nathan Goetz

  
  

  Member