Watkins (Migration)

[2021] AATA 1453

Watkins (Migration) [2021] AATA 1453 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James Paul Watkins

CASE NUMBER:  1908276

HOME AFFAIRS REFERENCE(S):          BCC2018/5473306

MEMBER:Anne Grant

DATE:12 May 2021

PLACE OF DECISION:  Melbourne

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 12 May 2021 at 10:53am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia for 3 months – little documentation provided with application – locked out of old email account – financial documents and oral evidence from employer provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211(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 14 March 2019 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 December 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 (Cth) (the Regulations). Relevantly to this case, they include 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.

3. “Specified work” definitions and information about the correct postcodes for the work are contained in the relevant legislative instrument;  currently Migration (LIN 20/182: Subclass 417 (Working Holiday) visa—Specified work and places) Instrument 2020.

4. The applicant attended a video conference hearing using the Microsoft Teams Application on 12 May 2021.   His former employer, Ms Carol Priebbenow, participated in the hearing and gave evidence via telephone.   

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5) because they were not satisfied that the applicant had completed specified work in a regional area for a three month period and had been remunerated appropriately for this work.   

6. Prior to the delegate’s decision, the applicant had provided a pay summary and some banking details but had not provided an employment declaration nor any evidence about the nature of his employment.  It appears that the department did not contact his employer.

7. Before the Tribunal hearing, the applicant provided evidence including bank statements demonstrating that pay went into his bank account, a signed employment declaration from his employer stating that he worked from 16 January 2018 to 4 May 2018 in ‘plant cultivation’ at Priebbenow silage contractors located in Greenmount, Queensland in postcode 4359, and a payment summary stating that he was paid $23,423 gross for employment between the same dates as provided by his employer. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant has carried out specified work[1] in regional Australia[2] for a total period of at least 3 months as the holder of a Subclass 417 visa.[3] In addition, for applications made from 1 December 2015, the applicant must be remunerated for the work in accordance with relevant Australian legislation and awards.[4]

   [1] See the ‘417Work&RegAust’ tab of the Register of Instruments Miscellaneous and Other Visa Classes for a list of the ‘specified work’. It appears the relevant instrument is that in force at the time of application.

   [2] Areas having postcodes specified in the relevant Instrument are taken to be ‘regional Australia’ for the purposes of the Working Holiday visa. See ‘417Work&RegAust’ tab of the Register of Instruments Miscellaneous and Other Visa Classes for a list of the prescribed areas. It appears the relevant instrument is that in force at the time of application.   

   [3] cl 417.211(5). Note that for visa applications made from 1 December 2015 to 30 June 2019, cl 417.211(5) required that the total period of work carried out, whether on a full-time, part-time or casual basis, must be or be the equivalent of at least 3 months of full-time work: see the amendments made by the Migration Legislation Amendment (2015 Measures No 3) Regulation 2015 (Cth) (SLI 2015, No 184). For visa applications made from 1 July 2019, this requirement was omitted and replaced with a requirement that the applicant has carried out a period of specified work for a total period of at least 3 months: see cl 417.211(5) as amended by F2019L00196.

   [4] cl 417.211(5)(c) applies to visa applications from 1 December 2015 but does not apply in relation to work carried out before that date: SLI 2015, No 184.

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

10. Ms Priebbenow gave evidence that their business is a silage contractor business, based in Toowoomba.  Mr Watkins worked full time as a contractor driving tractors involved in harvests and conducting maintenance for the business at various sites all over rural Queensland, NSW and Victoria in the period he worked for them.  He was paid according to the relevant pastoral award at $22 per hour.  His work included travel to various rural locations to undertake harvest as necessary and he was paid appropriate allowances for that travel when it occurred. 

11. The applicant had explained that he had lost his payslips due to being locked out of his old email and has never been able to recover them but he confirmed Ms Priebbenow’s evidence about his employ.  He did not work as an electrician, but as a farm worker involved in harvesting crops and general maintenance on sites.  If required, Ms Priebbenow advised the Tribunal she could provide a copy of the applicant’s payslips.  Given her evidence (which it accepted), the Tribunal did not consider it necessary. 

12. The Tribunal noted that given the passage of time, even if a favourable decision was made, the applicant would most likely be required to leave the country or apply for some other visa which were matters for the Department and not the Tribunal.  The visa applicant said that he wants to apply for a sponsored work visa.  He was advised to seek advice about his visa options.

13. The Tribunal finds that the applicant has worked full time for almost five months for Priebbenow Silage Contractors in regional postcode 4359 (and other regional locations as part of his duties for Priebbenow Silage Contractors)  performing plant cultivation (which is specified work in accordance with the relevant instrument)  between 16 January 2018 and 4 May 2018.  The Tribunal finds that he was paid according to the Pastoral Award and was appropriately remunerated for the work in accordance with relevant Australian legislation and awards.  

14. 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.

    Anne Grant

    
    

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