Mesias Tobar (Migration)

[2023] AATA 700

Mesias Tobar (Migration) [2023] AATA 700 (20 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Alberto Mesias Tobar

REPRESENTATIVE:  Ms Vania Isabel  da Costa Gomes Jacinto (MARN: 1568967)

CASE NUMBER:  2209219

HOME AFFAIRS REFERENCE(S):          BCC2021/259852

MEMBER:Meena Sripathy

DATE:20 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Work and Holiday (Temporary) (Class US) Subclass 462 visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 462 (Working Holiday) visa:

·cl 462.218 of Schedule 2 to the Regulations.

Statement made on 20 March 2023 at 10:47am

CATCHWORDS

MIGRATION – Work and Holiday (Temporary) (Class US) visa – Subclass 462 Work and Holiday (Temporary) – period of specified work in regional Australia – three months’ full-time work – updated financial records provided upon review – evidence of accommodation – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 462.218, 462.221; rr 1.03, 1.15

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 7 June 2022 to refuse to grant the visa applicant a Work and Holiday (Temporary) (Class US) Subclass 462 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 February 2021. At the time the visa application was lodged, Class US contained one subclass, Subclass 462 Work and Holiday (Temporary) visa. The criteria for a Subclass 462 visa are set out in Part 462 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.462.218.

3. The delegate refused to grant the visa because the applicant did not satisfy cl.462.218(b) and therefore did not satisfy cl.462.221A on the basis that the delegate did not accept the applicant has carried out a period or periods of specified work in regional Australia.

4. On 13 and 15 March 2023 the Tribunal received submissions and supporting documents from the applicant’s representative, as detailed below. 

5. The applicant appeared before the Tribunal on 15 March 2023 to give evidence and present arguments. The hearing was combined with the related case of Javeria Ignacia Araneda Bobadilla, the applicant’s partner, who had also made an application for a Work and Holiday (Temporary) (Class US) Subclass 462 visa on the same date.  Ms Araneda Bobadilla’s  application was refused by another delegate on 5 August 2022 and her application for review was constituted to the same Tribunal (matter 2212158).  The Tribunal received oral evidence from the applicant and Ms Araneda Bobadilla.  The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.  The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant, a Chilean national, applied for a Work and Holiday (Extension) visa on 19 February 2021 on the basis of having undertaken specified work in regional Australia with the following employer while he held a previous 462 visa:

   ·JBLUE Harvest Pty Ltd (ABN 936339645935) for the period 8 June 2020 to 6 September 2020 (91 days) in Moonee Beach, NSW 2450 picking and packing blueberries on a farm, under a piece rate agreement

8. In support of his claimed work he submitted with the application 7 payslips for the following periods: 8 -21 June 2020;  22 June- 15 July 2020; 6-19 July 2020; 20 July – 2 August 2020 ; 3-16 August 2020; 17-30 August 2020; 31 Aug -6 September 2020.  He also submitted a letter from Commonwealth Bank confirming his account at Terrigal, NSW opened on 3 March 2020 and indicating the balance on 13 February 2021. 

9. On 5 May 2021 the Department requested evidence of the specified work he claimed to have completed, including bank transaction statements and an employment contract. 

10. On 31 May 2021 the applicant submitted 7 payslips from Mager Constructions Pty Limited for continuous periods from 7 September 2020 - 25 October 2020 constituting 35 days paid work; a third party health declaration, signed by the applicant and indicating an address in Coffs Harbour and a New Employee Details Form (showing an address for the applicant at 188 Day St Sydney).

11. The delegate considered this information but decided not to give weight to the payslips from JBLUE Harvest Pty Ltd in the absence of further evidence such as an employment contract or bank statement. On the other hand the delegate was prepared to accept, on the evidence of the payslips from Mager Constructions, that the applicant may have completed 49 days work with this employer.  However, as this was less than the three months requirement the delegate found the applicant failed to meet cl.462.218(b). 

12. Before the Tribunal, in a submission provided on 13 March 2023, the applicant’s representative set out the evidence and legislative requirements.  The representative pointed out that the applicant and his partner completed the work at JBLUE Harvest Pty Limited at the same time.  His partner’s application for a Work and Holiday (Extension) visa, was made on the same date, but refused on 5 August 2022 by a different delegate.  Her delegate however, accepted on the basis of the payslips of her employment at JBLUE Harvest that she performed 65 days of specified work but did not accept the evidence of subsequent work she claimed to complete at Mager Constructions on the basis that she had not claimed this employer on her form, and submitted payslips only and no employment contract. The representative pointed out the inherent contradictions between the conclusions of the two delegates, with each one accepting one of the periods of employment and not the other, despite the evidence submitted (payslips) being the same.  It is submitted that both applicants completed the requisite period of specified work.

13. On 15 March 2023, just prior to the hearing, the Tribunal received from the applicant’s representative bank statements for the applicant and his partner, and various photos of the applicants at the two jobs. The bank statements were redacted, showing only the credits of pay received from the two employers.

14. At the hearing the Tribunal took evidence from the applicant and his partner They gave evidence about their current circumstances, address history since arrival and movements.  They are currently living in Bronte and have lived at various addresses in Sydney since they returned from the north coast where they did their specified regional work in 2020.  They arrived in Australia, together, in March 2020. The applicant has not departed Australia since he arrived.  They are both employed in Sydney now, on a full time, casual basis.

15. The Tribunal asked the applicants about the specific work which is the subject of this application. They gave evidence that they found the first employment, with JBlue Pty Limited via a Facebook working holiday group page. They reached out by phone in the first instance, and then met the person who arranged the work when they arrived in Coffs Harbour.  It was a job picking blueberries at various farms in the Coffs Harbour area. They did this work from 8 June to 6 September 2020. They would receive text messages from the supervisor telling them where the work was that day and had to make their own way there. They were paid by the kilogram, between $2-$3/kg. They worked 8 hours a day, 5 days a week in this period. They signed some paperwork and provided their tax file number. They don’t have a copy of this paperwork, including the agreement about piecework rates, because they didn’t realise its importance and having moved around so much since then they lost it.  Since then the company has shut down and they have no contact with any of the other employees. The Tribunal queried why they would not realise the significance of the paperwork given that they were only doing this work to be able to apply for a further visa.  In response the applicants explained that they did not believe it was important because they had the payslips to show that they did the work.

16. They gave evidence that they stayed in accommodation arranged by the supervisor.  The supervisor also arranged transport to the farms but the applicants worked out it was cheaper to get their own car and share costs with other workers so they did that. They changed accommodation 4-5 times in this period, according to where the farms were. They stayed in the area throughout this period.  The Tribunal noted they have provided bank statements but redacted all transactions and asked them to provide the full statement to support their claims of being in this area.

17. After some time they decided to look for other work. They found the second job with Mager Constructions, also on Facebook. It was a job restoring a lighthouse on South Solitary Island, 16 kilometres from Coffs Harbour. The applicants gave a detailed description of the work they did here: removing and cleaning windows, removing mould and chemicals, taking the glass frame and removing dirt, cutting weeds, cleaning walls, etc.  There were 4 of them on the island.  They stayed in a building there, which they had to clean out first.  There were no other people on the island. A helicopter delivered supplies once a week. They were provided all food, accommodation and transport as part of the conditions of work and paid $27 per hour. They did this job for 5-6 weeks, staying 7 days a week on the island. The Tribunal asked about the documents signed, noting that they have provided only a health declaration and new employee form and no employment contract. They said they were never provided a work contract.  They both stated even now in their current employment as casuals they have not been asked to sign any employment contract.

18. The Tribunal asked why, when asked by the Department to provide further information they provided the information about the second employment which was not mentioned in the application form. They explained that they did not think it was necessary because they had completed the required 88 days on the farms, so they did not mention the second job.  When the query was made, they submitted this information also.

19. Following the hearing the Tribunal received copies of the applicants’ bank statements, showing transactions made in the relevant period, and a statement from the applicant explaining the addresses stated on the bank statements and history of his addresses since arrival in Australia. 

    Has the applicant carried out specified Subclass 462 work?

20. Part 462 of Schedule 2 to the Migration Regulations 1994 specifies the criteria for a Work and Holiday (Temporary) (Class US) (Subclass 462) visa. Relevantly in the present case, 462.218 provides as follows:

    462.218

    If the applicant has held only one Subclass 462 (Work and Holiday) visa in Australia, the Minister is satisfied that:

    (a) the applicant has, after 18 November 2016, carried out a period or periods of specified Subclass 462 work as the holder of the visa; and

    (b) the total period of the work carried out is at least 3 months; and

    (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

21. ‘Specified Subclass 462 work’ is defined in reg 1.03 as work that was carried out in one or more specified areas of Australia and of one or more kinds specified by a legislative instrument made under reg 1.15FA. The applicable instrument for an application made but not finally determined before 19 August 2020 is LIN 20/184.

22. The Tribunal has carefully considered the evidence and material before it relating to the applicant’s claimed employment and the relevant legislative instrument LIN 20/184 and makes the following findings.

23. It is satisfied, on the evidence of the payslips, and claims and evidence of the applicant that he has carried out work in Australia as the holder of a Subclass 462 visa, and that the claimed employment was for a period of at least 3 months.

24. It is satisfied, on the evidence of the payslips, and claims and evidence of the applicant that he has carried out work in Australia as the holder of a Subclass 462 visa, and that the claimed employment was for a period of at least 3 months.

25. The Tribunal accepts the work for JBLUE Harvest Pty Limited involved picking blueberries and this comes within the category of agricultural work for the purposes of the relevant instrument.  It accepts, on the evidence of the payslips provided, bank statements showing credit of that pay and transactions undertaken by the applicant in the relevant area in the period, the applicant undertook the claimed work in the claimed area for the period specified. The Tribunal accepts that his employment from 8 June to 6 September was 5 days a week for a continuous period of three consecutive months and it is satisfied this meets the 3 month requirement for the purposes of the criterion, noting that this finding is consistent with Department policy guidelines regarding the three month requirement. The Tribunal accepts the work was undertaken in the 2450 postcode area and this is included in the areas specified in the relevant instrument.  With respect to the requirement the applicant was remunerated in accordance with relevant Australian legislation and awards, the Tribunal notes that the applicant was paid on a piecework arrangement.  Although evidence of the piecework agreement is not before the Tribunal, it is prepared to accept the applicant’s oral evidence that he signed one, though he cannot locate it now.  On the basis of the evidence of pay received, the Tribunal finds the applicant was remunerated under applicable law in place at that time. The Tribunal observes that since then, as a result of a decision of the Fair Work Commission Australian law applicable from 28 April 2022 provides that pieceworkers are now entitled to a minimum wage guarantee (which would be, for a casual employee, $26.73 per hour or $213.84 per day for an 8 hour work day).[1]  While the applicant does not appear to have been paid at that level, the Tribunal acknowledges it was not a legal requirement at that time and it would not be appropriate to apply the current standard to its consideration of this requirement, particularly in a manner that would be adverse to the employee in circumstances where the employment has already been undertaken.    

    [1] Pay & piece rates | Horticulture Showcase Fair Work Ombudsman

26. With regard to the applicant’s employment with Mager Constructions, while not strictly necessary to be considered in light of the above findings, the Tribunal finds the applicant’s evidence about this work is consistent with information located by the Tribunal [2] and it is satisfied that the work can be categorised as construction work for the purposes of the kinds of specified work permitted.  It accepts on the basis of the hourly rate indicated on payslips, and credited to his account, that the applicant was appropriately remunerated.  It accepts the work was undertaken in a postcode specified in the instrument.  It accepts he completed 49 days of this work (taking into account 5 days work per week plus two rest days per week), which together with the 91 days of farm work accepted above brings him well in excess of the three months required by the criterion.

    [2] project-reference-editorial-south-solitary-lighthouse-nsw-09-2020-pdf.pdf (mapei.com)

27. Therefore, the applicant satisfies cl 462.218.

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 462 visa.

    DECISION

29. The Tribunal remits the application for a Work and Holiday (Temporary) (Class US) (Subclass 462) visa for reconsideration, with the direction that the applicant meets the following criteria for a Work and Holiday (Temporary) (Class US) (Subclass 462) visa:

    ·cl 462.218 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member