Rambridge (Migration)

[2017] AATA 2126

Rambridge (Migration) [2017] AATA 2126 (2 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Jonathan Rambridge

CASE NUMBER:  1707628

DIBP REFERENCE(S):  BCC2017/279953

MEMBER:Louise Nicholls

DATE:2 November 2017

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 02 November 2017 at 4:26pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Remunerated in accordance with relevant legislation – Carried out work for required period

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 417.221, cl 417.211(5)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of the United Kingdom and he is 31 years of age. He first came to Australia on 11 February 2016 as the holder of a working holiday visa. He is seeking a further 12 month working holiday visa.

2. On 20 February 2017 the applicant applied for the visa a Working Holiday (Temporary) (Class TZ) visa. He provided a number of documents, including;

   ·Photocopy of the bio data page of his UK passport.

   ·Form 1263 Employment Verification form.

   ·Pay slips from YG Berry Pty Ltd and CS Labour Pty Ltd.

   ·Piecework agreement with YG Berry Pty Ltd.

   ·PAYG summary.

3. On 29 March 2017 the delegate of the Minister for Immigration refused to grant the application for the visa under s.65 of the Migration Act 1958 (the Act) on the basis that the applicant did not meet cl.417.221. The delegate found that the applicant had not provided evidence that he had been remunerated for carrying out specified work in regional Australia in accordance with relevant Australian legislation and awards.

4. This is an application for review of that decision. Relevantly to his application for the visa, the applicant provided a copy of the delegate’s decision record, short written submissions, a copy of his piecework agreement with YG Berry Pty Ltd, payslips and a copy of a piecework agreement with CS Labour Pty Ltd.  

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

   CONSIDERATION

6. 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.417.221.

7. Regulation 417.221 provides

   417.22  Criteria to be satisfied at time of decision

   417.221

   (1)  The applicant satisfies the criteria in subclauses (2) to (7).

   (2)  The applicant:

   (a)  continues to satisfy the criteria in paragraph 417.211(2)(c) and subclauses 417.211(4) and (5); and …..

8. The issue in this case is whether the applicant satisfies the criteria in cl.417.211(5) at the time of decision. Essentially the enquiry is whether the applicant was, for the specified work carried out, remunerated in accordance with relevant legislation and awards.

9. Regulation 417.211(5) provides

   (5)  If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that:

   (a)  the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa; and

   (b)  the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

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

10. The applicant must 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 IMMI 16/087 Working Holiday Visa Definition of Specified Work and Regional Australia (Sub item 1225(5).

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

11. Following the application for the visa the delegate requested further evidence to process the visa application. A checklist and information sheet was provided to assist the applicant in identifying relevant documents. 

12. The applicant provided a Form 1263 Employment Verification Form signed by his employer and that document showed he had worked with YG Berry Pty Ltd for 61 days between 25 April 2016 to 24 June 2016 and for 30 days with CS Labour Pty Ltd for 30 days between 25 June 2016 and 26 July 2016. This document showed that the applicant worked for a total of 91 days in the 4510 postcode area.

13. The applicant also provided a copy of his payslips, a PAYG summary and a piecework agreement with YG Berry Pty Ltd. The delegate found that with respect to the applicant’s work with CS Labour Pty Ltd he had not provided a piecework agreement and the delegate could therefore not be satisfied that the applicant had been remunerated in accordance with relevant Australian legislation and awards.

14. After the applicant applied for review he submitted that he had not been able to provide a piecework agreement for CS Labour because the contractor he had been working for had changed the company name from YG Berry Pty Ltd to CS Labour Pty Ltd. He had asked for a copy of his CS Labour piecework agreement but his former employer had not provided the agreement at the time he made his submission. He stated that he had been continuously engaged in working on the same farm, that is, Oasis Berries, 454 Old Toorbul Road, Caboolture, QLD 4510 between 25 April 2016 and 26 July 2016. The only change was the name of the contractor; not the nature of his work or his working conditions.

15. On 21 June 2017, he provided a copy of his CS Labour Pty Ltd piecework agreement. That signed document sets out the conditions of his piecework agreement with CS Labour and the rates of pay for picking, packing and planting berries. His work was described as casual.

16. Having considered the evidence before it, the Tribunal accepts that the work declared by the applicant comes within the “plant and animal cultivation” category specified in the relevant instrument, that is, the harvesting and packing of strawberry and raspberry fruit crops. And that postcode 4510 is a specified postcode.

17. Departmental records indicate that the applicant arrived in Australia on 11 February 2016 on a Subclass 417 visa which was valid until 11 February 2017.  On the basis of the documents provided the Tribunal accepts the applicant has worked for 91 days in specified work in a regional area. The Tribunal accepts on the basis of the payslips provided and the amount of work undertaken that the applicant undertook the equivalent of three months work.  It is satisfied on the basis of the employment verification form, the applicant’s submissions and information publicly available on the location of the farm and the contractor companies that the applicant worked in the regional area specified.  The applicant provided evidence of piecework agreements mutually agreed by himself and his employers, and on this basis the Tribunal accepts he was remunerated in accordance with relevant Australian legislation and awards.

18. Therefore on the evidence before it, the Tribunal accepts the applicant carried out specified work in regional Australia for a total period of at least three months as the holder of a working holiday visa.

19. Therefore, the applicant satisfies cl.417.211(5).

20. 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

21. 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.

    Louise Nicholls

    
    

    Senior Member