1505583 (Migration)

[2016] AATA 3041

1505583 (Migration) [2016] AATA 3041 (8 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jack Boakes

CASE NUMBER:  1505583

DIBP REFERENCE(S):  BCC2015/418985

MEMBER:Don Lucas

DATE:8 January 2016

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 08 January 2016 at 5:07pm

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 8 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 7 February 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).

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 failed to satisfactorily demonstrate that she had completed three months specified work in regional Australia.

4. The applicant participated in a hearing via teleconference in the Tribunal on 6 January 2016 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

6. The issue in this case is whether the applicant satisfies cl.417.211(5

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

7. 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.

8. The applicant provided information that in his visa application that between 12 May 2014 and 30 October 2014 he had been employed on a farm in the Northern Territory town of Berry Springs, postcode 0837 as a vegetable harvester.

9. In response to a request for additional information from the Department, the applicant provided additional information that the work was unpaid in terms of cash, and in exchange for his labour the applicant received accommodation and food, as well as the experience itself. The applicant indicated that the arrangement was part of the WWOOF[1] scheme. The applicant provided an employment verification form 1263 signed by Mr Ian Nancarrow as farm owner, together with a job description consistent with the specified work definition, and bank authority forms. No separate bank account statements were attached. As the Department had been unable to independently verify the claimed employment experience following an unsuccessful attempts to contact Mr Ian Nancarrow, the delegate determined that the applicant’s claim to have worked for at least 88 days in regional Australia was not possible to verify.

   [1] World Wide Opportunities on Organic Farms (WWOOF)

10. Prior to the hearing, the applicant provided a letter from Mr Ian Nancarrow confirming the applicant’s claimed employment experience at his farm between 12 May 2014 and 30 October 2014 and further confirmed that the applicant worked in exchange for food and accommodation as opposed to paid work.

11. At the hearing, the applicant described his initial arrival in Australia in March 2014 following which he indicates that after a period of time in Melbourne the applicant travelled to Sydney and then further north to Cairns, before then arranging for a ride with another backpacker friend to Darwin with the person who happened to be travelling that route. The applicant described spending some time in the Darwin Centre before finding out about the work available at Mr Nancarrow’s farm through word-of-mouth within the backpacker community. The applicant had had the intention of undertaking regional employment with a view to obtaining a second working holiday visa and stated he was conscious of getting this out of the way before an anticipated visit by his own parents to Australia around December 2014.

12. The applicant described in some detail the farm upon which he worked and the activities he undertook, which were consistent with the specified work outlined in the relevant Gazette. The applicant stated that there were a number of other working holidaymakers at the farm at any one time during his period of time there, and he indicated it seemed he was the only person who had been unable to obtain his second working holiday visa on this basis. The applicant also stated that Mr Nancarrow’s farm had a smaller number of permanent staff, approximately 6 persons, and that Mr Nancarrow resided there with his wife, whose name is Angel.

13. Having examined the document properties of the reference by Ian Nancarrow the Tribunal is satisfied that this letter is indeed one generated by the farmer Mr Nanrarrow with the assistance of his wife Angel.

14. “Specified work” in the interpretation preamble of Schedule 2, subclass 417 – Working Holiday visa means work of a kind specified by the Minister in an instrument in writing for the definition of specified work in subitem 1225(5) of Schedule 1. The relevant instrument 08/048 specifies the activities of “harvesting and/or packing of fruit and vegetable crops” for the purposes of sub item 1225(5) of schedule 1 to the regulations, and the Tribunal finds that the activities of the applicant has been engaged in are consistent with the activities as specified.

15. The work conducted by the applicant has been in Berry Springs NT 0837, which is a postcode listed in the schedule of instrument 08/048.

16. The current application was made on 7 February 2015. The Tribunal accepts that as at the date of application, the applicant has established that he has undertaken 88 days of specified work in regional Australia. The Tribunal notes Departmental policy indicating that “specified work does not need to be paid work, but must be the primary role, function or activity performed during the applicant's employment”, and the Tribunal finds that it has been in the present case.

17. Departmental movement records indicate that the applicant was granted a subclass 417 working holiday visa on 5 January 2014 and arrived in Australia on 9 March 2014. The 12 month period of the Working Holiday visa accordingly ceased on 9 March 2015.

18. On the basis of the foregoing, the Tribunal finds that the applicant has carried out specified work as the holder of a subclass 417 Working Holiday visa in regional Australia for at least three months (88 days) prior to the making of the current application.

19. Accordingly, the Tribunal finds that 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.

    Don Lucas

    
    

    Member