Resch (Migration)

[2019] AATA 5478

Resch (Migration) [2019] AATA 5478 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Christian Resch

CASE NUMBER:  1815696

HOME AFFAIRS REFERENCE(S): BCC2017/4700403 BCC2017/470403

MEMBER:Moira Brophy

DATE:2 December 2019

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 December 2019 at 12:16pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work – plant and animal cultivation – applicant’s job tasks compared to ANZSIC classification – purposive approach – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), s 65

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

Legislative Instrument IMMI 17/018, cl 7(2)(e), Schedule 1, sub-item 1225(5)

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 16 May 2018 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 9 December 2017. 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 delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied that that the work described in the WHMs specified work questionnaire and undertaken by the applicant with W2RKings Plains Pty Ltd was ‘specified work’ as specified in the relevant legislative instrument, IMMI 17/018.

4. The applicant, Mr Christian Deutsch appeared before the Tribunal on 22 November to give evidence and present arguments. The Tribunal also received oral evidence from a co-worker (and applicant in matter1819796) Mr Gary Bouvet.

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

   BACKGROUND

6. The applicant is a 23 year old national of Germany who arrived in Australia on 12 December 2016 as the holder of a Working Holiday TZ 417 Visa which was valid till 12 December 2017. On 9 December 2017, the applicant lodged this application for a further Working Holiday TZ 417 visa.  

7. A TZ 417 visa cannot be granted unless the visa applicant satisfies regulation 417.211(5)(a). Regulation 417.211(5)(a) states:

   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

   * specified work means work of a kind specified by the Minister in an instrument in writing for the definition of specified work in sub-item 1225(5) of Schedule 1. A list of specified work definitions can be found in Legislative Instrument “IMMI 17/018: Working Holiday Visa – Specified Work and Regional Australia”.

8. The applicant declared they undertook specified work with the following employer/s:

   ABN 78 604 334 689 registered as W2R KINGS PLAINS PTY LTD from 07/08/2017 to 10/11/2017 in postcode area of 2799.

9. In support of this application the applicant provided additional information to the delegate that included Employment verification form 1263 and WHM 417 Specified Work Questionnaire. These forms listed the applicant’s job title as a “labourer” and duties list as: sorting timber, driving loader, job site clean-up, manning picking station.

10. In support of this applicant the following documents were provided to the Department :

    ·     Applicant’s Commonwealth Bank account transaction listing

    ·     Completed WHM 417 Specified work questionnaire

    ·     Employment Verification form 1263

    ·     Pay slips from Bidder Two Pty Ltd ATF First Impressions Trust

11. In support of this applicant the following documents were provided to the Tribunal:

    ·     Applicant’s Commonwealth Bank account transaction listing

    ·     Completed WHM 417 Specified work questionnaire

    ·     Employment Verification form 1263

    ·     Pay slips from Bidder Two Pty Ltd ATF First Impressions Trust

    ·     Written statement by Richard Hobby

    ·     Statutory Declaration by Jason Rolph

    ·     Written statement by applicant

    ·     Photos of applicant at work site

    ·     Video link as evidence of work.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant satisfies the criteria in cl.417.211(5). Essentially the enquiry is whether the applicant was performing the requisite specified work in regional Australia during the relevant period, and if so was he properly remunerated for that work.

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

13. 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 IMMI 17/018 Working Holiday Visa Definition of Specified Work and Regional Australia (sub item 1225(5).

14. The applicant described to the Tribunal the processes involved in the work he did to achieve the desired outcome which was compost which could then be sold to neighbouring farmers for their cultivation of crops. He said three trucks would come into the site, one truck would be carrying dirt, one would be carrying timber products and the third would be carrying food waste. Their job was to combine the loads and to process to create compost. Fertilizer would be added to the dirt and the timber products would be cleared of all metal and plastic and broken down to make woodchip. The woodchip would then be combined with the fertilised dirt and the food waste was then added. Sometimes to achieve a premium product worm castings would also be added. The resulting product was then placed in rows about three to five metres wide and 50 metres long. They had to keep turning it until by a process of internal combustion it became compost. It was essential to maintain consistent internal temperatures. The resultant product would then be sold to surrounding farms to be used in their crop cultivation.

15. The applicant said he had undertaken the described work in the Bathurst area (postcode 2795) for 15 weeks (from 7 August 2017 to 10 November 2017). This evidence was corroborated by the email dated 26 June 2018 from Richard Hobby, site manager of W2R Kings Plains, the PAYG payment summary for period from 7 August 2017 to 10 November 2017 and photographs.

16. The Tribunal was mindful of the Australian New Zealand Standard Industrial Classification (ANZSIC) in determining whether the work undertaken by the applicant was specified work for the purposes of satisfying the definition in 1225(5) of Schedule 1. In his application the applicant had referred to performing work in the Construction industry as a labourer and listed his duties as ‘sorting timber, manning picking station, driving loader and job site clean-up.’ The delegate determined this work as described by the applicant fell outside the definition of specified work in IMMI 17/18. 

17. The Tribunal considered the evidence given by the applicant to be credible and accepts his evidence as to work he did.

18. The Tribunal carefully considered the evidence of the applicant and taking a purposive approach in interpreting the legislation the tribunal was satisfied the work he described fell within the category ‘plant and animal cultivation.’ The work he described was caught within the processing of plant products (timber products from trees and food waste) that were then used for plant and animal cultivation (sold to neighbouring farms as compost).

19. Having had regard to all matters, the Tribunal is satisfied that the applicant's work with W2R Kings Plains Pty Ltd was integral to immediate processing of plant products and therefore was of a kind that amounts to plant and animal cultivation such that it was specified work within the meaning of IMMI 17/018.

20. The Tribunal is satisfied that in his employment with W2R Kings Plains Pty Ltd, the applicant was therefore undertaking specified work in the nature of plant and animal cultivation as contemplated by cl.7(2)(e) of IMMI 17/018.

21. It follows that the applicant has carried out a period of specified work in regional Australia as the holder of a Subclass 417 visa.

22. Clause 417.211(5)(a) is therefore met.

23. Pay slips of the applicant in evidence show that the applicant was paid by W2R Kings Plains Pty Ltd for full-time work, from 7 August 2017 to 10 November 2017.

24. Having had regard to this evidence, the Tribunal is satisfied that the total period of the work carried out was at least equivalent to three months full-time work.

25. Clause 417.211(5) (b) is therefore met.

26. On the basis of evidence given at hearing in addition to the information provided prior to hearing including pays lips, PAYG summary and bank statements the Tribunal accepts the applicant was remunerated in accordance with relevant Australian legislation and awards.

27. Departmental guidelines (which are not binding on the Tribunal although it is reasonable to have regard to them) state that the remuneration verification contemplated in this provision is intended to be a relatively 'light touch' processing check rather than an exhaustive analysis of the applicant's pay rate history.

28. 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.

29. Therefore, the applicant satisfies cl.417.211(5)(c).

30. 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

31. 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.

    Moira Brophy

    
    

    Member