Nowitzki (Migration)

[2022] AATA 435

Nowitzki (Migration) [2022] AATA 435 (25 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Johanna Nowitzki

REPRESENTATIVE:  Miss Friederike Dorothea Kuehn (MARN: 1461096)

CASE NUMBER:  2109154

HOME AFFAIRS REFERENCE(S):          BCC2020/1949251

MEMBER:Meena Sripathy

DATE:25 February 2022

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 25 February 2022 at 3:16pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – 3 months of specified work in regional area while holding first visa – further supporting documentation provided to tribunal – one employer unavailable because of spouse’s illness and hospitalisation – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211(5)(b), cl 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 13 July 2021 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 applied for the visa on 22 July 2020. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 417.211(5) and cl.417.221.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5)(b) because the delegate was not satisfied on the evidence provided, that the applicant had completed 3 months or 88 days specified work.  The delegate found the evidence supported that the applicant had at most completed 50 days of specified work with one of the four employers she claimed to have worked with.

4. The applicant sought review of this decision to the Tribunal on 19 July 2021.  

5. On 26 November 2021 the Tribunal invited the applicant to provide further information to support their claims and received a response and submissions on 10 December 2021.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant applied for the visa under review on 22 July 2021 on the basis of having undertaken specified work in regional Australia with the following employers while she held her first 417 visa:

   ·  Benjamin L Morrow – Trading Name: Morrowmade Saddles (ABN: 42597171931) from 15 June 2020 to 13 July 2020 in the 2372 regional postcode area

   ·  Grant William Wells (ABN: 35971281540) from 27 March 2020 to 15 May 2020 in the 4829 regional postcode area

   ·   Lingline Pty Ltd (ABN: 74159522308) from 01 June 2020 to 07 June 2020 in the 2372 regional postcode area

   ·   Rees, Margot Edwina – Trading Name: Margot Edwina Rees Antiques (ABN: 23592910592) from 08 June 2020 to 14 June 2020 in the 2372 regional postcode area

9. Before the Department she provided various documents in support of her claimed employment with the above employers: tax invoices from Morrowmade Saddles, Lingline Pty Ltd and Margot Edwina Rees Antiques for pay received, and a payslip from Grant William Wells.  She also provided a Letter of Engagement from Grant William Wells and bank transaction statements.

10. The delegate accepted the claimed employment with Grant William Wells on the basis of the  Letter of engagement - employment offer with details of duties, Payslip and bank transaction statements, and accepted that the applicant had completed eligible specified work with this employer as per Legislative Instrument Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa— Regional Australia and Specified Work) Instrument 2020  for work completed from 27 March 2020 to 15 May 2020 (50 days)  in the 4829 postcode area, but  was not satisfied she had completed eligible specified work with any of the other declared employers, in the absence of evidence of an employment contract with details of duties from these employers. 

11. Before the Tribunal, on 10 December 2021, the applicant provided the following further additional evidence in support of her declared employment and review application:

    ·   Submission from representative that the applicant has competed 3 months full time work in a regional area as specified by the relevant legislation. It was submitted that the applicant has been unable to obtain supporting evidence from one of her employers, Margot Rees due to her unavailability because her husband is very ill and in hospital. The applicant relies on other corroborating evidence in respect of that employment.

    ·  Statutory Declaration by the applicant dated 8 December 2021 setting out details of each of the periods of claimed employment, work completed, pay and conditions. 

    ·  Letter dated 29 November 2021 from Kirsten Uhrig, Director, Lingline Pty Ltd trading as Infrastructure eXperts confirming the applicant’s employment at their business in Tenterfield from 1-7 June 2020 and providing details of the duties, pay and conditions. The letter also confirms she was provided accommodation until 14 June 2020, and further states the writer’s knowledge of the applicant’s subsequent employment at Margot Rees Antiques while living there from 8-14 June 2020 on the basis that Ms Rees is personally known to her and currently unavailable due to illness.

    ·  Statement of Employment from Benjamin Morrow dated 29 November 2021 confirming the applicant’s employment as a stud hand, and setting put details of duties performed, pay and conditions.

    ·  Applicant’s 2019-2020 Tax return document showing declaration of her income, including from these employers.

    ·  Applicant’s Queensland Border pass issued on 27 May 2020 and valid to 23 July 2020

    ·   Applicant’s bank statement for periods February 2020 – July 2020 showing her location in the claimed places of employment and deposits of income

    ·  Evidence of payment of wages less deductions from each of the employers.

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

12. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified specified work in regional Australia for a total period of at least 3 months as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘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 Legislative Instrument Migration (LIN 20/103: Subclass 417 (Working Holiday) Visa— Regional Australia and Specified Work) Instrument 2020.

13. The Tribunal observes at the outset that the expiry date for this visa is 12 months after the date her previous 417 visa ceased: cl.417.511(2), and this date may now have passed.  Nevertheless, for the purposes of the present review, it has considered the issue on which the application was refused, being cl. 417.211(5).  The following findings are made on the evidence provided to the Department and Tribunal in support of the applicant’s declared completion of specified work.

14. In respect of the applicant’s claim of employment at Grant William Wells (ABN: 35971281540) from 27 March 2020 to 15 May 2020 in the 4829 regional postcode area, she provided evidence of a Letter of Engagement, payslip and bank statement showing deposit of pay and location in claimed area of employment.  The Tribunal accepts, on this evidence, the applicant carried out specified work in regional Australia with this employer as set out in the relevant instrument from 27 March to 8 May 2020, constituting a period of 50 days. The Tribunal notes this was accepted by the delegate also.

15. The Tribunal also accepts that the applicant was employed by Lingline Pty Ltd (ABN: 74159522308) from 01 June 2020 to 07 June 2020 in the 2372 regional postcode area and by Margot Edwina Rees antiques (ABN: 23592910592) from 08 June 2020 to 14 June 2020 in the 2372 regional postcode area.  It accepts this on the evidence provided from Kirsten Uhrig, Director, Lingline Pty Ltd confirming applicant’s employment, details of work performed and pay; tax invoice of pay received, and bank statement showing transactions confirming her location in those periods. While there is no specific letter of engagement or statement of service relating to her employment at Margot Edwina Rees Antiques, the applicant has explained the reason for this and provided alternative evidence in lieu of it including her Statutory Declaration dated 8 December 2021 in which she provides details of the duties performed and reference to this work in the letter from Ms. Kirsten Uhrig, who refers to her personal knowledge of Ms Rees and attests to the applicant’s claim of employment there, and the evidence of the cheque received in payment for her employment. The Tribunal is satisfied this sufficiently corroborates her claim. On this evidence, the Tribunal accepts the applicant undertook these two jobs as claimed, and is satisfied it was specified work in regional Australia for a period of 14 days.

16. In respect of the employment at Morrowmade Saddles (ABN: 42597171931) from 15 June 2020 to 13 July 2020 in the 2372 regional postcode area, a statement of employment from Ben Morrow was provided, confirming the applicant’s period of employment, duties and payment.  The Tribunal accepts on this evidence that the applicant carried out specified work in regional Australia from 15 June 2020 to 13 July 2020 constituting a period of 28 days.

17. On the basis of the above findings and the evidence before it, the Tribunal is satisfied that the applicant has carried out work in Australia as the holder of a Subclass 417 visa, the total period of work was 92 days, being at least 3 months, it was ‘specified work’ as set out in the relevant instrument and it took place in regional Australia as set out in the instrument. The evidence indicates the applicant was paid between $20-25 per hour in each of the periods of employment, from which deductions for accommodation, transport and other incidentals were made. In light of the prevailing minimum wage rate of $19.46 at the time[1]  the Tribunal accepts that the applicant was remunerated in accordance with relevant Australian legislation and awards.

    [1] >

    Therefore, the applicant satisfies cl 417.211(5).

18. 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

19. 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.

    Meena Sripathy

    
    

    Member