Scopel (Migration)

[2020] AATA 4016

Scopel (Migration) [2020] AATA 4016 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Roberta Scopel

CASE NUMBER:  1922149

HOME AFFAIRS REFERENCE(S):          BCC2019/1341089

MEMBER:Tania Flood

DATE:26 August 2020

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 26 August 2020 at 1:32pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ‘specified work’ in ‘regional Australia’ – Great Keppel Island – Construction Labourer – disaster recovery – revegetation of dune areas – construction of a revetment wall – total period of the work carried out – Migration (LIN20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 417.211, 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 22 July 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 16 March 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. On 20 June 2019 the Department requested the applicant provide more information in relation to her employment within 28 days of the request.  On 24 June 2019 the applicant provided the following:

   -    Employment Agreement with Great Keppel Island Hideaway

   -    WHM 417 Specified Work Questionnaire

   -    Form 1263 Employment verification form

   -    13 Payslips

4. On 26 June 2019 the applicant provided copies of Commonwealth Bank Statements for October, November, December 2018 and January 2019.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211 (5)(b) as the delegate was not satisfied that the applicant has carried out 3 months of ‘specified work’ as stipulated in a Legislative Instrument.

6. Having reviewed the information provided by the applicant the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicant on the basis of the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant had carried out specified work in regional Australia for a period of at least 3 months’ as the holder of a Subclass 417 visa and been remunerated in accordance with relevant Australian legislation and awards.  

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

9. 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 Migration (LIN20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020.

10. Relevant to this case “regional Australia” includes the Queensland postcode 4700 where the applicant worked on Great Keppel Island and ‘specified work’ includes:

    -    Construction

    o   Residential building construction;

    o   Non-residential building construction;

    o   Heavy and civil engineering construction;

    o   Land development and site preparation services;

    o   Building structure services;

    o   Building installation services;

    o   Building completion services;

    o   Other construction services.

11. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.  The expression ‘3 months’ is not defined in the Regulations; however, Department guidelines (PAM 3) suggests that 3 months is taken to   mean 88 days which is the shortest possible combination of months in a calendar year.  Further, these guidelines specify that the work should be the equivalent of full-time work for that employer, that region and that industry. From 1 December 2015 onwards, all specified work performed is required to have been paid in accordance with Australian workplace law. 

12. The applicant’s employment agreement with Great Keppel Island Hideaway indicates that her duties included general construction and maintenance duties; disaster recovery; beach conservation and regeneration and renovating cabins (sanding and painting effected buildings).  The WHM 417 Specified Work Questionnaire indicates that the work performed was in the construction industry under the job title of Construction Labourer.  The duties are specified as assisting with revegetation of dune affected areas in construction of a revetment wall for cyclone protection; tidying up construction areas; renovating cabins.  The Form 1263 Employment Verification similarly indicates the job title as Construction Labourer and describes the applicant’s duties as being general construction and maintenance and beach rejuvenation and protection.

13. After reviewing this information, the delegate formed the view that general construction and maintenance, renovating cabins, sanding and painting affected buildings and tidying up construction areas appears to be specified work as defined in the Legislative Instrument.  However, the delegate found that the duties described as disaster recovery and assisting with the revegetation of dune areas affected in construction of a revetment wall for cyclone protection does not appear to fall under the definition of specified work.

14. Having carefully examined the information before it the Tribunal has formed a different view.  The Tribunal is satisfied the work on the construction of a revetment wall, that being a wall constructed generally of stone, concrete units or slabs designed to prevent subsidence[1], appears to be construction work as defined in the Legislative Instrument (as above).  While it is less clear whether duties involving the revegetation of dune areas meets the definition of specified work, on the available information, the work description suggests that any work of this nature may have been a component of the work required to construct the revetment wall.   More importantly, the Department’s policy guideline for Subclass 417 Working Holiday Visas provides commentary on types of specified work.  It lists nine examples of eligible specified work activities including landscaping the grounds of a construction site and conservation and environmental reforestation work. 

    [1] >

    In view of the above the Tribunal is satisfied that the applicant has completed work which meets the definition of ‘specified work’ in a location which is specified as ‘regional Australia’ whilst in Australia as the holder of a working holiday visa.

15. The information before the Tribunal indicates that the applicant was employed at Great Keppel Island Hideaway from 22 October 2018 to 20 January 2019 and worked a total of 91 days in that period.  The applicant’s payslips indicate she worked a 35-hour week.  Based on this evidence and having regard to the Department’s policy guidelines referenced above the Tribunal is satisfied that the applicant worked for at least 3 months in full-time employment.

16. The Tribunal is satisfied that the applicant meets cl.417.211(5)(a) and (b) of the Regulations.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards?

17. According to the Department’s policy guidelines, “the remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history.  It further states that “in the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted”.

18. The applicant has produced payslips which cover the period of her claimed employment with Great Keppel Island Hideaway.  The payslips indicate that she received an hourly rate of $23.67 and a weekly gross payment of $828.45.  She has also produced copies of bank statements which verify she was remunerated for the work she performed.

19. Having regard to all the available information, including consulting the Fair Work Ombudsman’s Pay Calculator, the Tribunal is satisfied that the applicant was remunerated for the work she performed in accordance with relevant Australian legislation and awards.

20. The Tribunal is satisfied that the applicant meets cl.417.211(5)(c) of the Regulations.

21. Given all the above findings, the Tribunal is satisfied the applicant meets the requirements of cl.417.211(5) of the Regulations.  As such, 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

22. 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.

    Tania Flood

    
    

    Member