1500729 (Migration)

[2015] AATA 3031

1500729 (Migration) [2015] AATA 3031 (1 July 2015)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT:  Mr James Timothy Zizzi-Knight

CASE NUMBER:  1500729

DIBP REFERENCE:  CLF2015/7187

TRIBUNAL MEMBER:  David Dobell

DATE:1 July 2015

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 July 2015 at 2:35pm

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 Immigration on 12 January 2015 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 30 October 2014. 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).  

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5): the 3 months of specified work in a regional area requirement. 

4. The applicant appeared before the Tribunal on 29 May 2015 to give evidence and present arguments.   

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. At the hearing, the applicant told the Tribunal that he arrived in Australia on 31 October 2013.

2. He was working on a private cattle farm of 3,000 acres which he found advertised on Gumtree.  He will forward a copy of the ad to the Tribunal. He did work around the farm, the main duties being cattle herding, transporting cattle to the abattoir in Tamworth, and fencing. He would do other duties around the farm, such as helping the farmer’s wife. He would also accompany the farmer when he was transporting cattle to the city for his neighbours.

3. As to the time spent on cattle herding, he said this would be 3-4 days a week, bringing in the cattle from outlying paddocks to closer ones ready for transport, and then transporting them. There would be about 20 cows a week they would gather over the days, and then they would drive to Tamworth and return the same day. The trip was 2-3 hours each way and they would get back very late at night. It could be a 9-12 hour day.

4. The Tribunal asked about the financial statement provided, asking why he needed money for a ‘bail out’ if he was being paid. He said this was for the fees for the visa application and he got this from his flatmates and repaid them when his parents transferred him some money.

5. He said he would be working every day of the week, but would have some time off to go shopping for food one day a week. The arrangement was that he was given a cottage to live in, and paid $125 a week, and this he would spend on food for the week.  He was not really doing it for the money; just to get the regional work so that he could extend his working holiday visa.

6. The Tribunal said it had to work out whether the duties he was doing matched up with those in the instrument. The Tribunal gave him a copy and he said they would fit under (a)(vi). The Tribunal said it accepted that cattle herding would fit under that heading but other duties like fencing, and transporting the cattle, may not. The applicant said that this farmer has been doing this for quite some time and he assumes that it has been okay for the purposes of visa extension.

7. The Tribunal said that in the circumstances it required a Statutory Declaration from the farmer as to the working arrangements for him. The form the farmer has signed only indicates a number of days and a period, and the Tribunal needs more evidence in the circumstances that he was working as claimed.

8. It noted with concern that the Department had tried to contact the farmer by phone and email and he had not responded. It gave him one week to provide the Statutory Declaration, and the Gumtree ad.

9. After the hearing, the applicant provided the Tribunal with the following:

• Statutory Declaration of Charles Scott, grazier, dated 18 June 2015, which states that the applicant worked for them between the dates of 2 August 2014 and 30 October 2014 and his duties included all facets of farm work, stock work, fencing and weed control, and he was paid cash in hand

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

1. Clause 417.211 requires, amongst other things, that at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

2. ‘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 08/048.

3. From the Department movement records, the applicant arrived in Australia on 30 October 2013 on a subclass 417 working holiday visa, ceasing 30 October 2014, and has remained here. The Tribunal finds accordingly.

4. The applicant has provided the following documentary evidence as to his employment:

• Form Q5: start date 3 August, end date 30 October 2014, pastoral-grazing, CA & FC Scott, postcode 2339, 89 days, signed by employer (89 days inclusive)

• Attachment 2, working  9-12  hours a day, 6-7 days a week as a cattle herder, stating cattle herding, transporting cattle to abattoirs, and fencing, paid work, no payslips, given cash, lived in a small cottage

• Gmail, train fare booking, 13 October 2014, for trip from Willow Tree to Sydney, 30 October 2014

• NAB Classic banking, applicant, July to October 2014

• NAB classic statement, 15 October to 12 December 2014

• Statutory Declaration of Charles Scott, grazier, dated 18 June 2015

1. From the above, the Tribunal notes some inconsistency in employment dates. The period of employment as stated on Form Q5 is a start date of 3 August and an end date of 30 October 2014. If this is correct, then the applicant worked 89 days. However, the Statutory Declaration of the employer states he worked between 2 August and 30 October 2014. This would still give 89 days but it suggests he started on 2^nd August and finished on 29^th October. Then, the Attachment 2 states that he started on 3 August and finished on 31 October 2014. However, 31 October is outside the subclass 417 visa period.

2. Based on all the above evidence the Tribunal finds that he worked 89 days. Whilst this is not strictly ‘3 months’ as the law requires, Department policy states that work must be at least for 88 days. The Tribunal will follow this policy as to do otherwise would unfairly disadvantage the applicant.

3. The Tribunal turns to the location and nature of the employment. In the context of the relevant instrument, the Tribunal accepts that the postcode 2339 is one specified by that instrument.

4. As to the nature of the work, the instrument states as follows under (a)  - plant and animal cultivation:

   (i)      the harvesting and/or packing of fruit and vegetable crops
   (ii)      pruning and trimming vines and trees
   (iii)      general maintenance crop work
   (iv)      cultivating or propagating plants, fungi or their products or parts
   (v)      immediate processing of plant products
   (vi)      maintaining animals for the purpose of selling them or their bodily produce, including natural increase
   (vii)      immediate processing of animal products including shearing, butchery, packing and tanning
   (viii)      manufacturing dairy produce from raw material

5. The Form Q5 states that the applicant was involved in ‘pastoral-grazing’ work. The Attachment 2 states that the applicant worked as a cattle herder, stating that he did: cattle herding, transporting cattle to abattoirs, and fencing. The employer’s Statutory Declaration states that his work included all facets of farm work, including stock work, fencing and weed control.

6. At the hearing, the applicant said that his main duties were cattle herding, transporting cattle to the abattoir in Tamworth, and fencing. He said cattle herding would take 3-4 days a week, which involved bringing in the cattle from outlying paddocks to closer ones ready for transport, and then transporting them. He said he would also do other duties around the farm, such as helping the farmer's wife, and he would also accompany the farmer when he was transporting cattle to the city for his neighbours.

7. As to his work hours and days, the employer’s Statutory Declaration is silent on this and the Form Q5 does not assist. The Attachment 2 states that the applicant worked 9-12 hours a day, 6-7 days a week. The applicant’s evidence at hearing was consistent with this claim.

8. Returning to the instrument the relevant criteria are (vi)- maintaining animals for the purpose of selling them or their bodily produce, including natural increase and (vii)-      immediate processing of animal products including shearing, butchery, packing and tanning

9. Whilst it has some doubts, the Tribunal will accept that the duties that the applicant performed on the farm overall were all related to the maintaining of stock. It will include the transportation of the animals to the abattoir in this, as whilst not directly stated, it is a necessary intermediate step between (vi) and (vii).  It will also accept that he worked the days and hours he has claimed.

10. Whilst there were some duties that would clearly not be included, like transporting neighbour’s cattle to the city, the Tribunal accepts he was working such long hours over 6-7 days a week that, even if this time was excluded, he still would have been working the equivalent of full-time.

11. Thus, the Tribunal accepts that the applicant was working full-time for 89 days in a region and in a type of work specified by the relevant instrument.

12. The applicant has, therefore, as the holder of a Subclass 417 visa, satisfied the Tribunal that he carried out ‘specified work’ in ‘regional Australia’ for a total period of at least 3 months.

13. The applicant satisfies cl.417.211(5).  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

1. 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.

David Dobell

Member