Veit (Migration)

[2020] AATA 3589

Veit (Migration) [2020] AATA 3589 (7 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nicholas Theodore Veit

CASE NUMBER:  1936234

HOME AFFAIRS REFERENCE:               BCC2019/5028762

MEMBER:Rosa Gagliardi

DATE:7 July 2020

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 462 visa:

·cl.462.218 of Schedule 2 to the Regulations.

Statement made on 07 July 2020 at 4:08pm

CATCHWORDS

MIGRATION – Work and Holiday (Temporary) (Class US) –subclass 462 Visa – applicant did perform the required three months (or 88 days) of specified work – bank account cash deposits accepted –consistent evidence– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 462.218

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 to refuse to grant the applicant a Work and Holiday (Temporary) (Class US) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 8 October 2019. The delegate refused to grant the visa on 20 December 2019.

2. The delegate made the decision on the basis that the applicant had not provided convincing evidence of having been remunerated for the three-month work period in accordance with relevant Australian legislation and awards.

3. In reaching its decision 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, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF EVIDENCE

4. The issue in the present case is whether the applicant meets cl.462.218.

   462.218
   
   If the applicant has held only one Subclass 462 (Work and Holiday) visa in Australia, the Minister is satisfied that:

   (a) the applicant has, after 18 November 2016, carried out a period or periods of specified Subclass 462 work as the holder of the visa; and

   (b) the total period of the work carried out is at least 3 months; and

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

5. The primary decision records that the delegate was unable to be satisfied that the applicant completed the specified work because he was unable to provide a specific transaction history for the period of employment to show the applicant was remunerated for the work completed. 

6. On 8 October 2019 the applicant applied for a Work and Holiday (Temporary)(Class US)(Subclass 462) visa.

7. The applicant declared that he undertook specified work with the following employers:

   ·PK’s Resort Pty Ltd T/A PK’s Jungle Village (ABN: 35168348730) from 21 January 2019 to 10 March 2019 in the 4873 regional postcode area; and

   ·Snowman Employments Pty Ltd T/A Snowman’s Apple Orchard (ABN 72094889693) from 15 March 2019 to 2 May 2019 in the 4378 regional postcode.

8. He also submitted the relevant Questionnaires and other material, including payslips and evidence of superannuation payments.  The information shows that the applicant worked for two employers while in Australia: (i) PK’s Resort located in Cape Tribulation QLD 4873 for a period of 49 days; and (ii) Snowman Employment located in Applethorpe QLD 4378 for a period of 49 days.

9. In the Departmental decision, the delegate wrote:

   I have assessed all of the information provided in relation to Snowman Employments Pty Ltd, including payslips for the employment period that indicate the name of the employer, the employer’s ABN, ATO income summary, superannuation payments to Austsafe Super and bank statements from an Australian bank showing transactions history for the period of employment.  I am satisfied that the applicant has been remunerated appropriately for the work completed at Snowman Employment Pty Ltd for the claimed period of employment.

10. The delegate was not satisfied, however, in relation to the information concerning PK’s Jungle Village payments to the applicant, stating, he/she had limited reliable evidence that the applicant was paid in accordance with relevant Australian legislation and awards.

11. Regulation 1.15FA provides that a legislative instrument may specify the areas of Australia and the kinds of work that may be undertaken for the purposes of the definition of specified subclass 462 work.  The Tribunal has reviewed the relevant instrument and is satisfied that the occupation of KITCHENHAND, code 851311, satisfies the specified work requirement.

12. The Tribunal notes that PK’s ASIC registration confirms that PK’s Jungle Village was registered and operating lawfully during the period of time the applicant was employed on a contract as a KITCHENHAND.

13. The information demonstrates that the applicant and his employer, PK’s Resort Pty Ltd entered into an independent contractor/employer arrangement.  The template contract provided indicates that the contractor accepts a rate of $22.50 per hour for any works completed under contract as KITCHENHAND.  The provided contract indicates that the applicant is required to provide their own ABN and is solely responsible for payments of taxation and superannuation.

14. Essentially, the delegate was not satisfied that the applicant had been paid the amount of money indicated on the payslips because he/she was unable to reconcile these payments with any bank records the applicant provided.  The representative contended that the applicant entered into a contractual agreement with the employer and that it was the employer who chose cash as the payment method.

15. Incidentally, the Tribunal notes the following information provided on the Australian Taxation Office’s website:

    Paying wages in cash is legal and may be more convenient.[1]

    [1] accessed on 7 July 2020.

16. The delegate noted that in addition to the relevant payslips, the applicant also provided two bank statements from an Australian bank showing transactions history from 10 August 2019 to 8 October 2019 and from 10 May 2019 to 8 October 2019, but the delegate afforded no weight to this information.  The Tribunal notes that there are cash deposits made in these accounts consistent with the amount the applicant has put forward has been paid and which was disclosed to the Australian Taxation Office, that is $3,465.00.  When the cash deposits are added together over the relevant period they are in the vicinity of the payment made to the applicant overall: $3,465.00. 

17. While the Tribunal is not bound by Departmental policy, it may have regard to it when it is not inconsistent with the Regulations.  In this respect policy states:

    Remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history.

18. And further that:

    Given that the focus of specified Subclass 462 work is upon the nature of the work undertaken rather than the type of employer worked for, contract-based work is eligible if the work activity performed meets the definition of specified Subclass 462 work.

19. Nonetheless, the Tribunal does not accept that the ‘light touch’ approach should be so light that any documentation should be unquestioningly accepted.  The evidence has to be consistent and plentiful.  In this case, the applicant has provided evidence upon which the delegate did not place weight (the transaction history).  The Tribunal, however, considers that it would be unreasonable not to place weight on evidence on the bank deposits reflected in the applicant’s account as it is consistent with all the other evidence provided by the applicant.  Not to take into account the bank account cash deposits would mean that the Tribunal would have to conclude that all the documentation submitted by the employer as well as the Australian Taxation Office and the applicant is fraudulent.  The Tribunal considers that such a conclusion would be far-fetched and unrealistic.

20. Therefore, on the basis of the material before it, the Tribunal is satisfied that the applicant did perform the required three months (or 88 days) of specified work, on a contract basis, in the position of KITCHENHAND at PK’s Jungle Village at Cape Tribulation, far North Queensland, in postcode 4873, and that he was remunerated in accordance with the relevant Australian award.

21. The applicant therefore satisfies cl.462.218.

22. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for the subclass 462 visa.

    DECISION

23. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 462 visa:

    ·cl.462.218 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    Member