Smallman (Migration)

[2020] AATA 6098

Smallman (Migration) [2020] AATA 6098 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Leah Katie Smallman

CASE NUMBER:  1836858

HOME AFFAIRS REFERENCE(S):          BCC2018/3068715

MEMBER:Louise Nicholls

DATE:10 December 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 10 December 2020 at 4:34pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa–evidence provided regarding specified regional work– period of three months full time work requirement met –work conducted in regional Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2, cls 417.111, 417.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of the United Kingdom (UK) and is 27 years old. She arrived in Australia on 9 September 2017 as the holder of a working holiday visa which ceased on 9 September 2018.

2. The applicant applied for a second working holiday visa on 15 August 2018 and held an associated bridging visa until she departed Australia on 22 March 2020.

3. Together with her application, she provided a completed WHM Specified Work Questionnaire, copies of payslips, copy of her UK passport biodata page, group certificate and payment summary (30 June 2018).

4. On 26 November 2018 the delegate of the Minister for Home Affairs refused to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act) on the basis that the applicant did not meet cl.417.211(5). The delegate was not satisfied, on the evidence provided, that the applicant had carried out the equivalent of 3 months full time specified work in regional Australia as the holder of a Subclass 417 visa.

5. This is an application for review of that decision, and it was made on 16 December 2018. The applicant provided a copy of the delegate’s decision record and additional documents to support her application. These include;

   ·Applicant’s submissions made on 7 December 2018.

   ·Photograph of the applicant with her co-workers at her place of employment.

   ·Bank statements showing wage deposits from January 2018 to April 2018.

   ·Form 1263 Working Holiday visa -Employment Verification for work done between 22 January 2018 to 23 January 2018 signed by her employer.

   ·14 payslips covering the period from pay period starting 18 January 2018 to pay period starting 19 April 2018.

   ·Letter from Manager of Laurelgold Pty Ltd dated 29 November 2018.

   ·Letter from the Director of Walkabout Hostel, Mighell QLD (n.d).

   ·Bus ticket in the applicant’s name from Airlie Beach to Innisfail dated 21 January 2018.

   ·Statement of service from Laurelgold Pty Ltd (Banana Farm) dated 23 April 2018.

   ·Statement of the applicant’s AustSafe Super contributions January to April 2018.

6. As the applicant had departed Australia at the beginning of the COVID 19 pandemic in March 2020 she was not able to attend an “in person” hearing at the Tribunal. She was invited to a telephone hearing in November 2020 but due to a misunderstanding regarding time differences, she did not attend the telephone hearing and her application was dismissed. She successfully applied for reinstatement of her application for review.

7. After carefully considering the additional evidence provided by the applicant, 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.

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

   CONSIDERATION

9. 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.

10. The issue in this case is whether the applicant carried out specified work in regional Australia for a total period equivalent to 3 months full time work.

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

11. 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.

12. Department records show and the Tribunal finds the applicant was the holder of a Subclass 417 visa on 15 August 2018 when she made her application for a second Subclass 417 working holiday visa. The Tribunal also finds she made her application for review while in Australia.

13. The Tribunal finds that the applicant has carried out work in Australia as the holder of a Subclass 417 visa.

14. The applicant has provided evidence in the form of payslips, letters from her employer and landlord, bank statements, superannuation statements, a statement of service and an employment verification form which show that the applicant worked full time from 22 January 2018 to 23 April 2018. She provided a copy of a bus fare which showed she arrived in Innisfail on 21 January 2018. Her bank statements also confirm her residence in Innisfail to 26 April 2018.

15. The evidence indicates, and the Tribunal accepts, that the applicant was employed at a banana farm in Innisfail, Queensland (postcode 4860), as a tractor driver and farm hand. She stated that she was involved in driving a tractor and banana hand duties which included deflowering banana trees, removing dead trees and cleaning the banana sheds. She provided a photograph of herself at the farm with a group of co-workers all obviously in work clothes and standing in front of a large industrial tractor. Her employer and her landlord both stated she was a tractor driver and farm hand at the banana farm, driving the tractor and being on call full time for three months. She did not take any sick or recreational leave whilst employed. Her hours varied due to prevailing weather conditions, but this was standard for the banana industry and the evidence indicates the applicant was available full time for the three months she was employed at the farm.

16. IMMI 17/018 provides that plant and animal cultivation, including the harvesting of fruit crops, general maintenance of crop work, and cultivating plants is “specified work” for the purposes of subitem 1225(5) of Schedule 1 to the Regulations. The Tribunal finds that the nature of the work undertaken by the applicant was “specified work” as set out in IMMI17/018.

17. The Tribunal notes that the work was undertaken at the banana farm at Innisfail with a postcode 4860 and accepts that this was a “specified place” in regional Australia as set out in paragraph 6(5)(m)) of IMMI 17/018.

18. Having considered the evidence in payslips, bank statements and other employment documents the Tribunal is also satisfied that the work was renumerated in accordance with relevant Australian legislation and awards.

19. In sum, the Tribunal is satisfied that at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period equivalent to at least 3 months’ full-time work, as the holder of a Subclass 417 visa and has been remunerated in accordance with relevant Australian legislation and awards.

    Conclusion

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