Morris (Migration)

[2021] AATA 2474

Morris (Migration) [2021] AATA 2474 (16 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Katie Jeanette Morris

CASE NUMBER:  1909222

HOME AFFAIRS REFERENCE(S):          BCC2019/484451

MEMBER:Angela Cranston

DATE:16 April 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) of Schedule 2 to the Regulations.

Statement made on 16 April 2021 at 1:17pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – specified regional work– period of three months full time work requirement met –work conducted in regional Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 on 27 March 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 15 February 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 applicant arrived in Australia on 20 March 2018 as the holder of a subclass 417 Working Holiday visa that was valid until 20 March 2019. In her application for this second subclass 417 Working Holiday visa, she indicated that she undertook specified work from 8 August 2018 to 8 January 2019 at postcode 5725. She also provided the Department with a letter dated 20 December 2018 from Spotless stating as follows:

Kate Morris has been employed as a cleaning and laundry mine site utility at Spotless Olympic Dam since 8 August 2018.

Cleaning of the uniforms and laundry involves removing biohazardous materials and this technically falls under mining support services and not cleaning.

As a Cleaning and Laundry Utility, the service is not simply cleaning and or laundry but a part of the safe operation of a mining process. Thus making it a mine support service. 

4.Also included were pay slips for a base rate of $25.33 per hour for the following periods:

2 January 2019-8 January 2019  Fixed Term FT

19 December 2018-25 December 2018        Fixed Term FT

12 December 2018-18 December 2018        Fixed Term FT

28 November 2018-4 December 2018          Fixed Term FT

21 November 2018 -27 November 2018       Fixed Term FT

14 November 2018-20 November 2018        Fixed Term FT

7 November 2018-13 November 2018          Fixed Term FT

31 October 2018-6 November 2018              Fixed Term FT

24 October 2018-30 October 2018                Fixed Term FT

17 October 2018-23 October 2018                Fixed Term FT

10 October 2018-16 October 2018                Casual

3 October 2018-9 October 2018  Casual

26 September 2018-2 October 2018             Casual

19 September 2018-25 September 2018      Casual

29 August 2018-4 September 2019              Casual

22 August 2018-28 August 2018                   Casual

15 August 2018-21 August 2018                   Casual

8 August 2018-14 August 2018  Casual

5.The delegate refused to grant the visa on the following basis:

On 15 February 2019, the applicant applied for a working holiday (temporary) visa.

The applicant declared they undertook specified work with the following employer:

ABN 83 072 293 880 registered as Spotless facility services Pty Ltd from 8/8/2018 to 8/01/2019 in postcode area 5725.

The applicant submitted the following evidence in support of their visa application

·Payslips

·A letter from operations manager, spotless management services, dated 20 December 2018.

To assess whether or not the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa, I have taken into account the information provided by the visa applicant and the online application.

The Employment Verification letter from Spotless Management Services describes that the applicant was employed as a cleaning and laundry within Mine Site Utility at Spotless Olympic dam since 8 August 2018. The letter further describes that the cleaning of uniforms and laundry involves removing biohazardous materials, which form a part of the safe operation of a mining process. I have assessed the payslips provided which indicate that the applicant was being paid on an hourly rate of $25.33. The payslips show the job description/location as Olympic Dam Cleaning-Operation.

I have considered the information provided by the applicant and given significant weight to the information provided by the employer and payslips. The information provided in the letter of Employment verification show that the applicant did not complete specified work as stipulated in the legislative instrument Immi 17/018: Working Holiday visa -specified work and regional Australia.

The information provided by the applicant shows the applicant worked in a regional area for more than three months, as a holder of a working holiday (temporary) subclass 417 Visa, but working as a cleaning and laundry utility does not meet the definition of specified work according to the legislative instrument Immi 17/018: Working Holiday visa- specified work in regional Australia.

6.The Tribunal wrote to the applicant seeking evidence that for the period 8 August 2018 to 8 January 2019 she was paid in accordance with relevant Australian legislation and awards.

7.The applicant responded with the following:

a.    Decision from Fair Work Commission approving the Spotless Remote Sites Onshore Enterprise Agreement 2014 dated 11 November 2014.

b.    Applicant’s letter of appointment from Spotless dated 23 July 2018 identifying the applicant’s base rate of pay as $25.33 gross.

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 has carried out a period of specified work in regional Australia is the holder of a subclass 417 Visa and the total period of the work carried out is at least three months full-time work and the applicant has been remunerated for the work in accordance with relevant Australian 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 LIN 20/103, that is instrument LIN 20/182 repeals all earlier instruments however savings provisions in that instrument mean that LIN 20/103 continues to apply to an application for a subclass 417 visa made but not finally determined prior to the commencement of LIN 20/182 on 18 August 2020.

11.The Tribunal finds that the applicant has carried out work in Australia as the holder of a subclass 417 Working Holiday visa. The Tribunal accepts that she worked full time from 17 October 2018 to 8 January 2019 and prior to that, on a casual basis from 8 August 2018 to 16 October 2018 and finds that the work she undertook, whilst the holder of a subclass 417 Working Holiday visa until 20 March 2019, was the equivalent of at least 3 months full time work. The Tribunal also accepts that the work she undertook was at a mining site and that she worked in mining support services. In reaching this conclusion, the Tribunal accepts the applicant’s submission that cleaning of uniforms and laundry at a mine site is an ancillary service that provides necessary support to the primary activity of mining. The Tribunal finds that this is specified work for the purposes of legislative instrument LIN 20/103. The Tribunal accepts that she worked in Olympic Dam at postcode 5725 and finds that she worked in regional Australia for the purpose of legislative instrument LIN 20/103. Given the evidence of an approved enterprise agreement and the applicant’s employment in accordance with that agreement, the Tribunal also accepts that she was remunerated in accordance with relevant Australian legislation and awards. Accordingly, the Tribunal finds that the applicant meets the requirements of cl.417.211(5).

12.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

13.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.

Angela Cranston

Member