Wolfgramm (Migration)

[2021] AATA 2832

Wolfgramm (Migration) [2021] AATA 2832 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Louis Lennard Wolfgramm

CASE NUMBER:  2014369

HOME AFFAIRS REFERENCE(S):          BCC2020/1322771

MEMBER:Linda Holub

DATE:17 June 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 417.212 (6) of Schedule 2 to the Regulations.

Statement made on 17 June 2021 at 12:04 pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 (Working Holiday) – periods of specified work in regional Australia – carried out work in Australia for a total period of at least 6 months – work was carried out while holding second Subclass 417 visa that was in effect – carried out on or after 1 July 2019 in regional area – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 417.212(6)

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 3 September 2020 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 6 April 2020. 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(6).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417. 211(6) because the delegate was not satisfied that the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa, as prescribed in Regulation 417.211(6) and therefore the delegate was unable to be satisfied that the applicant meets Regulation 417.211(6)(a).

4. The applicant appeared before the Tribunal on 15 June 2021 to give evidence and present arguments. The applicant was represented in relation to the review.

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

BACKGROUND

1. The applicant is a 32-year-old national of Germany. He was granted his first Working Holiday (Temporary) (Class TZ) visa on 18 September 2018 and arrived in Australia on 2 November 2018. He was subsequently granted a further visa of the same type on 6 December 2019.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the requirements of Regulation 417.211(6).

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

1. Clause 417.211(6) requires that, at the time of the visa application, the applicant had carried out specified specified work in regional Australia for a total period of at least 6 months. All of that work must have been carried out on or after 1 July 2019 and while the applicant held the second 417 visa or a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa). The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘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 20/103.

2. In his application the applicant stated that he worked in construction from 4 November 2019 until 29 March 2020 at 1056 Alpine Way, McCracken back, New South Wales, 2627. His employer was Lucsan Pty Ltd. The company’s ABN was listed as 27061395430. The applicant declared he worked a total of 621 hours with an hourly rate of $26.03.

10) The applicant provided the Department with:

a.Copies of payslips from Lucsan Pty Ltd showing his classification as cleaner and copies of payslips from Pender Lea Chalets for the period from 31 March to 3 May 2020. The classification field on these payslips are blank.

b.A copy of our proof of account balance in relation to his Westpac bank accounts as at 6 April 2020.

11)  Prior to the hearing the Tribunal was provided with:

a.A letter dated 19 September 2020 written by the applicant to the delegate indicating that the ‘cleaner’ classification was an administrative error made in the bookkeeping. He also wrote that he had not provided information about his second employer Pender Lea Chalets Pty in relation to the specific work he had done. He stated that the company is active in hospitality and grazing and that beside the construction work he did he was also involved in the employer’s bushfire fuel reduction program and fencing, stock feeding, mustering and draughting stock.

b.A contract between the applicant and Lucsan Pty Ltd for farm hand work specifying his position is farmhand with an approximate start date of 28 October 2019 and that he will be paid under the casual award. It is dated 21 October 2019 and signed by the applicant on the same day.

c.A copy of a letter from Anton Schatzle, owner of Pender Lea Grazing Company dated 9 September 2020 states that the applicant had been employed with the company from 31 March 2020 until the date of the letter. It states the company’s main concern is the production of Angus beef cattle. It states that the applicant’s duties involved stock feeding, stock mustering, draughting stock, bushfire fuel reduction program and fencing.

d.A letter dated 17 September 2020 signed by Sonja Schatzle which makes the following points:

i.the applicant worked for Lucsan from early November 2019 until 29 March 2020 in the position of farmhand the reconstruction on the properties eco-cabins.

ii.he worked during this period on the new eco-cabin development known as Tinkersfield. His work involved screening porches and building decks. When bushfires arrived in the area the applicant stayed and helped to prepare for the fires, and they were fortunate that the bushfires did not burn the property. He could no longer be employed when the coronavirus pandemic commenced.

iii.the applicant was described as a cleaner due to an administrative error. The company bookkeeper inputs all of the company’s employees into the accounting software and failed to change the classification. The company pays their farmhands and labourers the same wage as cleaners because the farmhand wage is low and the expenses in the area of very high. This is how the classification error occurred. It is auto generated by MYOB.

iv.Pender Lea Chalets is owned by the Sonja Schatzle’s mother. It is a 2800-acre property. Tourism is one part of its business. It is also an operating Angus cattle farm and primary producer. With the number of properties Pender Lea Operates a full-time carpenter is needed for building and repair. She stated that Pender Lea could offer this work to the applicant when we were no longer able to employ him due to the lockdown resulting from the coronavirus pandemic. The applicant became Pender Lea’s farmhand and labourer. During this time, he built woodsheds, three new large roadside signs, new decking, and the dog kennel in addition he fed cattle daily, chopped firewood, burnt off, and mended fences.

v.the main office for both businesses is located at 1056 Alpine Way. They are separate businesses and operate separately. Lucan Pty Ltd is operated by Sonja Shatzle and Pender Lea is operated by Christine Shatzle.

vi.the applicant’s contract outlines his duties other than firefighting is they were not aware that this would be in store for them in 2020.

e.a copy of a photo showing the applicant helping defend the property during the bushfire in January 2020 was provided as well as other photographs of the applicant and work undertaken on the property.

f.copies of the applicant’s pay slips from Pender Lea Chalets showing the hours worked, the hourly rate at which he was paid.

g.a Statutory Declaration from the applicant dated 11 June 2021.

h.a covering submission from the applicant’s legal representative dated 9 June 2021.

i.a Notice of Assessment for the year ended 30 June 2020 from the Australian Taxation Office on behalf of the applicant.

j.written evidence of items purchased by the applicant’s employer for the construction projects that the applicant undertook.

Hearing

12) The applicant provided additional written evidence at hearing including a letter from his employer and copies of his qualifications as a farmer and references.

13) The Tribunal explained to the applicant that it had considered the extensive additional written evidence that was provided prior to the hearing. The Tribunal referred to the letter provided by Ms Sonja Schatzle in particular her explanation as to why his pay slips classified him as a cleaner. Furthermore, the Tribunal referred to the fact that it had reviewed the Pay Guide of the Pastoral Award (MA00035) published by the Fair Work Ombudsman on 30 November 2020 which confirms that the rate of pay for farm and livestock hands is lower than the pay rate at which he was paid. On that basis, the Tribunal was prepared to accept the explanation as to why his pay slips referred to him as cleaner.

Findings

14) On the basis of the written evidence submitted by the applicant and the Tribunal’s consideration of the Pastoral Award the Tribunal accepts that:

·     the applicant has carried out work in Australia for a total period of at least 6 months.

·     all of that work was carried out while the applicant held a second Subclass 417 visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa)

·     all of that work was carried out on or after 1 July 2019

·     it was ‘specified work’ as set out in the instrument

·     it was in regional Australia as set out in the instrument.

15) Although the applicant was remunerated above the relevant Australian legislation and award, the Tribunal accepts that this was in recognition of the higher living costs in the area in which he was employed.

16) The Tribunal is satisfied the applicant meets the requirements of cl 417.211(6).

17) : 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

18) 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. 212 (6) of Schedule 2 to the Regulations.

Linda Holub

Member