1503639 (Migration)

[2015] AATA 3316

1503639 (Migration) [2015] AATA 3316 (3 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Cally Alexandra Wood

CASE NUMBER:  1503639

DIBP REFERENCE(S):  CLF2015/23854

MEMBER:Denise Connolly

DATE:3 August 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 03 August 2015 at 12:25pm

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 4 March 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 9 January 2015. 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). Relevantly to this case, they include cl.417.211(5) which requires 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied the applicant had provided sufficient evidence that she had carried out specified work in regional Australia for a total period of at least 3 months.  

4. The applicant appeared before the Tribunal on 10 July 2015 to give evidence and present arguments.  The applicant was represented in relation to the review by a registered migration agent, who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. The issue in this case is whether the applicant has carried out specified work in regional Australia for at least 3 months. 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. ‘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.  

7. The applicant first arrived in Australia on 11 January 2014 as the holder of a Subclass 417 Working Holiday visa valid until 11 January 2015. 

8. On 9 January 2015 the applicant lodged an application for a second Working Holiday visa.  In the visa application she claimed to have carried out the following work:

   ABN:  8426988959 (Fada Pty Ltd)

   Postcode:  4860 (Innisfail) QLD
   Period: 28 May 2014 to 28 August 2014

9. The Department requested that the applicant provide further evidence. The applicant provided a Form 1263, indicating the applicant undertook ‘banana labour’ in the period however the form did not record the number of days worked. She provided a job description, payslips and bank statements. The bank statements show that she was in the area during the period. However the payslips indicate she was working only 2 - 4 days per week. Having considered the Department’s policy the delegate was not satisfied the applicant had worked 88 days or full time for 3 months. She refused to grant the visa as she was not satisfied there was sufficient evidence that cl.417.211(5) had been met.

10. Prior to the hearing the representative provided written submissions asserting that, as the applicant had carried out specified work over a 3 month period, she meets the requirement. He asserted that the PAM3 policy stating the applicant should work at least 88 days is contrary to the legislation. He refers to the definition of work in the Regulations ‘an activity that, in Australia, normally attracts remuneration’. He asserted that the applicant worked the industry norm in the occupation and several others who undertook the same work for the same duration were granted visas.

11. The applicant provided a letter from Fada Pty Ltd (t/a Pacific Coast Produce – Pacific Coast Eco Bananas) confirming the applicant worked in the period 28 May 2014 to 28 August 2014 at an average of 3 days per week which was the maximum days the packing shed was operational due to seasonal conditions. She provided payslips confirming she was employed as claimed in that period.

12. At the hearing the applicant told the Tribunal that she had worked at Fada Pty Ltd with several other Subclass 417 visa holders who all did about the same number of hours as her. She indicated that because of the season they worked as required and this meant that sometimes they worked only 3 or 4 days a week for short days.  She understood from the employer that full-time work in this industry at that time of year was about 3 days a week because it is winter. All of the other workers were granted their second Subclass 417 Working Holiday visa on the basis of roughly the same period of employment and working hours as the applicant. She was the only one who was not granted a second Working Holiday visa. The applicant provided copies of the Form 1263s for various other Subclass 417 visa holders, Alexandra Grace Johnson, Kirsty Margaret Gladstone, Sara Viktoria Johansson, Reimo Poll, and Clare Mary Tracey demonstrating they all worked for the same employer and that their Form 1263s do not record the actual number of days worked. She asserted they have all been granted second Working Holiday visas.

13. The applicant told the Tribunal that the manager of the Walkabout Hostel in Innisfail, who organised for the applicant and those mentioned above to undertake specified work in the region, and her employer informed her that the specified work she had carried out in the 4 month period 28 May 2014 to 28 August 2014 was sufficient to be granted a second Working Holiday visa.  The applicant asserted that at the time she was staying at the hostel none of the other Working Holiday visa holders worked 5 days a week because the work was not available. However she knows that those visa holders mentioned above were granted their second Working Holiday visa, by the Department, based on the same work she did and the same information she provided.

14. The applicant’s representative submitted that the Department’s own policy allows for the industry standard to be taken into account. He drew attention to PAM 3 Sch 2 Working Holiday visa at 21.2 which states:

    One full day of work is defined as having worked the minimum number of hours considered a standard day by the particular industry in which the applicant is employed… In calculating the period of time for which the applicant has undertaken specified work, the type of employment relationship the applicant may have with their employer, including full/part time employment, casual employment or voluntary employment, is not as important as whether the relevant industry considers the period of work completed to be equivalent to full time work for that industry. For example, if the applicant’s paid employment involved 2 weeks on and then 2 weeks off, and this is standard practice in the industry, the applicant would be considered to have worked for 4 weeks (28 days). If the employer is satisfied that the applicant has undertaken the equivalent of full time work for that industry for the specified period, the visa decision maker may be satisfied that the applicant has undertaken full time work for the specified period.

15. The representative asserted the employer in this case considered the applicant to be employed full-time in the context of the banana produce industry standard for the winter period. He asserted that the hours the applicant worked in the period she was employed was considered to be the industry standard by the employer as evidenced by their letter dated 13 May 2015 which states the applicant’s work in the 14 week period, at an average of 3 days per week, was the maximum days the packing shed was operational due to seasonal conditions.

16. Having considered all of the evidence, the Tribunal is satisfied the applicant packed bananas in Innisfail in the period 28 May 2014 to 28 August 2014. The Tribunal is satisfied she worked the maximum hours and days that were available to her in the 4 month period, due to the season. It is satisfied this was the industry standard for the season.

17. In considering whether the Tribunal should be satisfied that the employer is satisfied the applicant has undertaken the equivalent of full time work for that industry for the specified period, the Tribunal accepts the applicant was given the clear impression that the work she had undertaken was for a sufficient period. It is satisfied the employer’s letter has been provided by the employer in support of this claim.

18. The Tribunal has also taken into account that the Department has been satisfied in at least 5 other cases that the work undertaken at Fada Pty Ltd in similar periods to the applicant’s employment has been sufficient for the purposes of cl.417.211(5). The Tribunal assumes this is because the delegate in those cases was satisfied that working in a period of at least 3 months, at the industry standard, is sufficient to meet the requirements to have carried out specified work in regional Australia for a total period of at least 3 months. The Tribunal considers consistent decision making in this context to be important and fair.

19. Overall having considered all of the evidence in this case, the Tribunal is satisfied the applicant has carried out specified work consistent with that described in IMMI 08/048 Item 3(a) plant and animal cultivation.  Having regard to IMMI 08/048 and the postcode 4860, the Tribunal is also satisfied this work was carried out in regional Australia. Based on the information from the employer’s letter described above, the payslips and the applicant’s oral evidence, the Tribunal is also satisfied the applicant has carried out specified work over a 4 month period at the industry standard for the winter season as the holder of a Working Holiday visa. It is satisfied this is for a total period of at least 3 months. Therefore, the applicant satisfies cl.417.211(5). 

20. 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

21. 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.

    Denise Connolly

    
    

    Member