Mpofu (Migration)

[2020] AATA 5954

Mpofu (Migration) [2020] AATA 5954 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Nompumelelo Mpofu
Mr Mbonisi Mpofu
Mr Nathaniel Mpofu
Mr Gabriel Nkazimulo Mpofu
Miss Sindisiwe Mpofu

CASE NUMBER:  2005965

DIBP REFERENCE(S):  BCC2018/97785

MEMBER:Jane Marquard

DATE:10 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

·cl.887.213 of Schedule 2 to the Regulations

and the second, third, fourth and fifth named applicants meet the following criteria for a Subclass 887 visa:

· cl.887.311 of Schedule 2 to the Regulations

Statement made on 10 December 2020 at 11:02am

CATCHWORDS
MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 887 (Skilled - Regional) – worked ‘full-time’ in a ‘specified regional area’ – employed on a casual basis – timesheets and payslips provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 887.111, 887.213, 887.311

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 (the Department) on 12 March 2020 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. Subclass 887 is a permanent visa for eligible provisional visa holders who have lived for at least two years and worked for at least one year in a ‘specified regional area’ in Australia.

3. The first named applicant is a 37-year-old citizen of Zimbabwe. The second named applicant is her husband (date of marriage 23 August 2010). The third, fourth and fifth named applicants are their children. They live and work in Mandurah, Western Australia.

4. The applicants applied for the visas on 8 January 2018. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

5. The delegate refused to grant the visas because the delegate was not satisfied that the first named applicant met cl.887.213 of Schedule 2 to the Regulations on the basis that she had not worked full-time in a regional area for a total of at least one year as the holder of one or more specified skilled or bridging visas. Payslips for the full period had not been provided to the Department.

6. A significant volume of new evidence was provided to the Tribunal. The applicants provided reasonable explanations as to why they had not provided these documents earlier to the Department, including mistake, birth of children and the applicant’s father’s illness.

7. No hearing was necessary as the Tribunal was able to determine the matter on the papers pursuant to s. 360(2) of the Act.

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 the present case is whether the first named applicant has worked full‑time in a specified regional area for a total of least one year as the holder of one or more of specified skilled or bridging visas.

10. The applicants provided extensive evidence to the Tribunal, including:

    ·A copy of the first named applicant’s employment agreement with Opal Aged Care (Opal) dated 22 January 2018;

    ·Preceda Centrelink Statement of earnings from 01 January 2016 to 31 December 2017;

    ·PAYG from Drake Supermarkets from 26 June 2017 to 24 June 2018;

    ·Copies of the first named applicant’s time sheets from May 2016 to July 2017;

    ·Copies of payslips from Drake Medox Nursing Agency (Drake) for 4 February 2017 to 17 December 2017;

    ·A letter of reference from Drake confirming the applicant worked a total of 1364 hours;

    ·Westpac Bank statements from 11 April 2016 to 11 July 2017;

    ·Notice of Assessment for years ending 2016, 2017, 2018 and 2019;

    ·Marriage Certificate and Birth Certificates for all family members.

    Work in a specified regional area as the holder of a specified visa

11. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least one year as the holder of one or more of specified skilled or bridging visas.

12. The applicant arrived in Australia on 29 December 2015 as the holder of a Skilled – Regional Sponsored (Class SP) (Subclass 489) visa. This is one of the visas mentioned in cl.887.212.

13. The decision record from the Department indicates that the applicant was granted the Skilled – Regional Sponsored (Provisional) (class SP) (subclass 489) visa on 20 November 2015. The Tribunal finds that the applicant was a holder of one or more of the visas mentioned in cl. 887.212 from 20 November 2015. The application for this visa was made on 8 January 2018. The Tribunal must be satisfied that the applicant worked full-time in a specified regional area between 20 November 2015 and 8 January 2018.

14. The first named applicant stated that she worked in Mandurah, WA, with a postcode of 6210. This was demonstrated in in her employment agreement and payslips.

15. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa, here the Skilled – Regional Sponsored (Provisional) (class SP) (subclass 489) visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

16. The Tribunal is satisfied that Mandurah is a specified regional area having regard to the applicable definition in cl.887.111, the previous visa held and the relevant instrument, IMMI 12/021 for the purposes of reg 1.03 which states that the whole of Western Australia is a designated area.

17. The applicant was the holder of the specified visa when she worked in the specified regional area.

    Work in total full-time for one year

18. Clause 887.213 requires that the applicant must have worked full-time in a specified regional area for a total of at least one year. ‘Full-time’ is not defined in the legislation. The Department of Home Affairs policy[1], which can serve as a guide to this Tribunal, states that the Australian Bureau of Statistics suggest that a full-time position is one in which there is normally 35 hours of work per week, however this is dependent on the occupation and some discretion is permissible. However, it is stated that less than 30 hours would not comprise full-time work.

    [1] Department of Home Affairs, Procedures Advice Manual (PAM3)

19. It was submitted that on 18 April 2016, as the holder of a Subclass 489 Visa, the first-named applicant commenced work as a General Services Officer at DPG Services, trading as Opal Specialist Aged Care. The employment letter from Opal confirmed that the applicant worked from 18 April 2016 to 25 June 2017.

20. The Tribunal accepts that the first named applicant was employed on a casual basis by Opal, as set out in her employment agreement. The Tribunal is satisfied that she worked a total of 1190.87 hours at Opal for the period 18 April 2016 to 31 December 2017, based on timesheets and payslips provided. She worked a total of 23 weeks of at least 30 hours each.

21. The Tribunal accepts that the first named applicant commenced working at Drake Medox Nursing Agency on a casual basis on 4 February 2017. The Tribunal is satisfied that she  worked a total of 1118.91 hours at Drake from 4 February 2017 to 4 January 2018. This is evidenced by copies of payslips for the full period and a letter of reference from Drake (which states that she worked 1364 hours). She worked a total of 20 weeks of at least 30 hours. The Tribunal accepts that the discrepancy in the amounts is due to the counting of sick leave, annual leave and leave without pay. Bank statements indicated that payments were made from Drake into her bank account as per the timesheets.

22. The Tribunal is satisfied that the first named applicant worked for the period 8 May 2016 to 8 January 2018 in total for 2309.78 hours as demonstrated by payslips, timesheets her employment agreement and notice of assessment. The Tribunal is satisfied that this is 174.78 hours more than a full-time worker working 35 hours a week for that period (which would amount to 2135 hours not including eight weeks annual leave over the two-year period).

23. The Tribunal notes that the Procedures Advice Manual[2] indicates that an applicant may ‘add together’ the hours worked in part-time or casual positions to meet the full-time work requirement. There is also no restriction on the type of work a visa-holder may do The Tribunal notes that the notices of assessment suggest that she worked full time hours, given her taxable income. The Tribunal accepts that adding the hours worked together and taking into consideration the PAM guidelines on what comprises full-time, the first named applicant worked a total of 43 weeks working at least 30 hours, as demonstrated by the evidence provided to this Tribunal. As a full year is comprised of 52 weeks and taking into account holidays and weekends, the Tribunal is satisfied that the applicant worked full-time for one year in a specified regional area.

    [2] Department of Home Affairs, Procedures Advice Manual (PAM3)

    Members of the same family unit

24. The Tribunal is satisfied based on the Marriage Certificate provided that the second named applicant is the husband of the first named applicant. They married on 23 August 2010. The Tribunal is satisfied based on the Birth Certificates provided that the third, fourth and fifth named applicants are children of the first named applicant. They are therefore members of the family unit of the first named applicant and therefore meet cl. 887.311 of Schedule 2 to the Regulations.

    CONCLUDING PARAGRAPHS

25. The Tribunal is satisfied therefore that the first named applicant worked full-time in the specified regional area for a total of at least one year while the holder of a skilled visa.

26. The Tribunal finds that the first named applicant satisfies cl.887.213.

27. The Tribunal is satisfied that the second, third, fourth and fifth named applicants are members of the family unit of the first named applicant and therefore meet cl. 887.311 of Schedule 2 to the Regulations.

28. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

29. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 887 visa:

    ·cl.887. 213 of Schedule 2 to the Regulations; and

    and the second, third, fourth and fifth named applicants meet the following criteria for a Subclass 887 visa:

    · cl.887.311 of Schedule 2 to the Regulations.

    Jane Marquard
    Member