1505994 (Migration)

[2015] AATA 3641

1505994 (Migration) [2015] AATA 3641 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Changho Kim

CASE NUMBER:  1505994

DIBP REFERENCE(S):  CLF2015/28918

MEMBER:Chris Keher

DATE:17 November 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 17 November 2015 at 12:14pm

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 22 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 25 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate considered the applicant did not meet the requirements of having  carried out specified work in regional Australia for a total of at least 3 months. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is Mr Changho Kim. He is a citizen of South Korea and is 25 years old. He arrived in Australia on 4 March 2014 on a TZ-417 (Working Holiday) visa to cease 4 March 2015. He applied for the current visa onshore on 25 February 2015. He has provided evidence of having lived and worked at Bundaberg, in Queensland, from 13 November 2014 to 22 February 2015. This is in the form of:

   ·     pay slips for the above period indicating work on 88 days spread over the period; work on most days in the period including on weekends; work on some days for as little as 2 hours and on a few days for more than 8 hours; work as “shed and hourly work”; work in some weeks for 7 days and others for 4 days;

   ·     rental receipt from Tomato Backpackers for the period 13 November 2014 to 22 February 2015;

   ·     a statement of employment from Propick Pty Ltd dated 22 February 2015 stating that he worked for 88 days undertaking tomato packing;

   ·     an employer completed employment details form (folio 30);

   ·     a PAYG tax summary for the same period  indicating Gross payments to him of $6573;

   ·     a job description form (folio 29); including that the applicant travelled by car for 20 to 30 minutes to get to his work each way.

6. It is apparent he earned about $21 per hour, and as he was paid $6573 this means he worked for about 313 hours or an average of 3.55 hours on days he worked. He worked as a casual undertaking cherry tomato picking and packing

7. The issue in this case is cl.417.211(5) whether the applicant meets the requirements of having  carried out specified work in regional Australia for a total of at least 3 months.

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

8. 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.

9. The applicant has carried out work as a harvester of tomatoes doing picking and packing.  This is agricultural work of a type specified “harvesting and/or packing fruit and vegetable crops”. I find it is ‘specified work’ as set out in the relevant instrument.

10. The applicant worked at Bundaberg Queensland postcode 4670. I find the location of the work was in regional Australia.

11. The main issue here is what the term “at least 3 months” means, and whether, as detailed in PAM Guidelines, it must be full-time as meant by a particular award for an industry. The PAM Guidelines make various suggestions of what work means and what for at least 3 months means, none of which are defined in the Act or Regulations. Understandably, the 3 months is defined as 88 days. They do not need to be consecutive.

12. I accept that the applicant has worked on 88 days in regional Australia undertaking specified work. He worked as a casual.  There is nothing in the Act or Regulations that state the work must be full-time. 

13. It seems to me that a fair reading of the regulations and instruments is that the work must be genuine, and there must be substantial compliance so as to satisfy the intent of the regulations. I don’t accept it must be full-time. Whilst an award may give some assistance in understanding what an ongoing full-time employee may encounter and what the expectations may be I don’t accept that they are particularly useful in defining what is meant to be a short term one off labour hire in a regional area. I note that form 1263 includes the following “Specified work is any type of work in the list below”.

14. It is apparent the applicant has made a genuine effort to work and meet the requirements for a second 417 visa. He has worked for at least half a day, on average, and in some weeks worked for 7 days. He has travelled for up to an hour return each day to gain the employment. I am satisfied the applicant has worked for at least 3 months as intended by the requirements of cl.415.211(5).

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

16. 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

17. 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.

    Chris Keher

    
    

    Member