Su (Migration)

[2021] AATA 654

Su (Migration) [2021] AATA 654 (1 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jie Ling Su

CASE NUMBER:  1905287

HOME AFFAIRS REFERENCE(S):          BCC2018/4699273

MEMBER:Luke Hardy

DATE:1 March 2021

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 01 March 2021 at 3:25pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) – Subclass 417 (Working Holiday) – specified work in regional Australia for three months – one employer has since ceased operation – difficulty in obtaining evidence – tribunal’s estimate of hours and rates from documents provided – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.211(5)(a), 417.221(2)(a)

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 27 February 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 25 October 2018. 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). The applicant applied for the visa on 11 October 2018. 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). At the time of decision, the applicant is required to meet cl.417.221:

   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)(a) and subclauses 417.211(4) and (5); and
   (b) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013, 4014, 4019 and 4020.

3. Relevant to this case is cl.417.211(5):

   417.211
   …

   (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.

   * 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”.

4. The delegate considered the evidence before him but found there was insufficient evidence on which to make a decision in the applicant’s favour. Specifically, the delegate noted that the applicant had submitted evidence to the effect that she undertook specified work with the following employers:

   ·Strong Team Pty Ltd (ABN: 45615346006) from 3/02/2018 to 29/05/2018 in (the Victorian) regional postcode area 3500; and

   ·Tan, Hwee Hwee (ABN: 25936983184) from 3/10/2018 to 16/10/2018 in (the Victorian) regional postcode area 3489.

5. The applicant evidently submitted the following evidence to the delegate in support of her visa application:

   ·Employment Verification ( form 1263) from Strong Team Pty Ltd;

   ·Employment Verification ( form 1263) from Tan, Hwee Hwee, trading as IG Contracting;

   ·2 photographs of the applicant at what appears to be work;

   ·11 payslips from Strong Team Pty Ltd; and

   ·2 payslips from IG Contracting.

6. On 3 December 2018, the delegate asked the applicant to provide more information in relation to her application, including:

   A completed ‘WHM Specified Work Questionnaire’
   Bank transaction statement for the specified work period claimed
   Piece rate agreements
   Deduction agreements
   Employment contracts
   Payment Summary
   Tax Statement
   Superannuation Statement

7. The applicant failed to submit the material within a prescribed period.

8. The delegate the 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 the applicant had completed specified work in a regional area as stipulated in Regulation 417.211(5)(a), for a 3 month period as stipulated in Regulation 417.211(5)(b), or that he had been remunerated appropriately for this work completed as stipulated in Regulation 417.211(5)(c).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant has carried out the requisite specified work in regional Australia and meets Regulation 417.211(5)(a),(b) and (c).

    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: Working Holiday Visa – Specified Work and Regional Australia”.

12. The applicant has submitted the following material to the Tribunal, all of which the Tribunal considers to be authentic evidence of having carried out work in Australia as the holder of a Subclass 417 visa:

    ·       Payslip and personal bank transaction statement evidence of having performed work that was the equivalent of at least 3 months’ full-time work, from 3 February to 29 May, 3 to 16 October and 31 October to 6 November 2018;

    ·       WHM and payslip evidence to the effect that he worked as a fruit picker with the now-deregistered Strong Team Pty Ltd (ABN: 45 615 346 006) in Mildura, Victoria 3500, a regional postcode area, 3 February to 29 May 2018, at a piece rate of $2.60 to $3.00 per unit, and between around 80 and 160 units a week;

    ·       WHM and payslip evidence to the effect that he worked as a fruit picker with the I.G. Contracting Service (ABN: 25 936 983 184) from 3 to 16 October and 31 October to 6 November 2018 at an hourly rate of $18.66 to $18.93;

    ·       Payslip evidence of income tax deducted;

    ·       A superannuation statement covering the FY to 30 June 2018;

    ·       Payslip and WHM evidence to the effect that all of the work conducted was it was ‘specified work’ as set out in the relevant instrument; and

    ·       Payslip and WHM evidence to the effect that, as the work was undertaken after 1 December 2015, the applicant was remunerated in accordance with relevant Australian legislation and awards.[1]

    [1]

13. The Tribunal has taken into account that since Strong Team Pty Ltd has ceased to operate, it might very likely be extremely difficult for the applicant to obtain and produce comprehensive evidence in the forms suggested by the delegate, such as evidence of a piece rate agreement. The Tribunal has therefore estimated the rate on the basis of information in the payslips, having regard to information in the Fair Work Ombudsman’s website.[2]

    [2] Ibid.

14. In the circumstances, on the evidence before it, the Tribunal is satisfied that the applicant has completed specified work in a regional area as stipulated in Regulation 417.211(5)(a), for a 3 month period as stipulated in Regulation 417.211(5)(b), and has been remunerated appropriately for the work completed as stipulated in Regulation 417.211(5)(c). Therefore, the applicant satisfies cl.417.211(5).

15. 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

16. 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.

    Luke Hardy

    
    

    Member