1505509 (Migration)

[2015] AATA 3553

1505509 (Migration) [2015] AATA 3553 (12 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Tessa Haggerty

CASE NUMBER:  1505509

DIBP REFERENCE(S):  BCC2015/697324 CLF2015/27428

MEMBER:Amanda Goodier

DATE:12 October 2015

PLACE OF DECISION:  Perth

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 October 2015 at 10:33am

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 21 April 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 4 March 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the applicant had not completed 3 months of specified work in regional Australia at the time she lodged this application.

4. The applicant appeared before the Tribunal on 9 October 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

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

6. 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 08/048.

7. In her application for the visa the applicant declared she undertook specified work with Equus P/L from 8 December 2014 to 8 March 2015 in the 3812 regional postcode area.  She was subsequently requested by the Department to provide evidence of specified work completed.  In response, she provided a completed Employment Verification Form 1263 and job description questionnaire and bank authority form.   The applicant indicated she lived on the farm, was not paid but was provided with full board and lodging for the entire period.

8. The applicant indicated in the job description questionnaire she provided she worked 5 days a week for 8 hours a day on a full time basis. She indicated in her job description that she was essentially a stable hand, mucking out the stables, feeding and grooming horses, fixing paddocks, exercising horses, etc. The applicant lodged this application on 4 March 2015.  At the time this application was lodged and after considering the department’s policy, the delegate found the applicant had only completed 87 days of specified work in regional Australia.

9. The applicant submitted that she was eager to comply with her visa requirements and commence the processing for her second visa so it would be granted prior to the expiry of her first visa.  She therefore lodged this application prior to her completing the required number of days to meet the 3 month requirement.  She submits it was a genuine mistake and she did not realise nor was she aware that the days had to be completed prior to the application being lodged.

10. As explained to the applicant at hearing, the time of application requirement is that she must have completed 3 months specified work in regional Australia to be eligible for her second visa.

11. The applicant told the Tribunal that she was provided with full board and lodging as well as items of a personal nature during her 3 months.  She was not paid a salary and volunteered to do the work. She indicated she worked around the stables, cleaning, feeding and caring for the horses. 

12. She stated she worked Monday to Friday as well as Saturday which was a light work day and she usually finished about noon.  She also worked Christmas Day, Boxing Day and other public holidays.  She indicated that she worked these days as she was staying on the premises and the work had to be done.  She did state that the work was lighter on these days as compared to the usual working days.  She indicated she lived and shopped in the area with a trip to Melbourne one weekend that is shown in her bank statements.  She purchased goods on-line that were delivered to her at her accommodation during that period.

13. The expression, ‘3 months’ is not defined in the Regulations; however the Tribunal notes that Departmental guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. The Tribunal is not bound to follow DIAC policy but does have regard to that policy.

14. In this particular circumstance, the applicant lived and worked on-site and as such worked Saturdays as well as weekdays.  The Tribunal accepts the applicant’s evidence that she worked full-time, including weekends during the period 8 December 2014 to 4 March 2015.  The Tribunal is satisfied the applicant worked for a period of at least 3 months.    

15. The Tribunal accepts that the work declared by the applicant comes within the ‘plant and animal cultivation’ category specified in the relevant instrument, and the postcode 3812 is included among the postcodes specified in that instrument. 

16. The Tribunal is satisfied on the evidence presented that the applicant carried out the work in Australia as the holder of a subclass 417 (Working Holiday) visa, that the work was “specified work” as set out in the relevant instrument, that the location of the work was in regional Australia as defined in the relevant instrument and the duration of that work was 3 months.

17. Therefore, the applicant satisfies cl.417.211(5). 

18. 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

19. 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.

    Amanda Goodier
    Member