1505995 (Migration)

[2015] AATA 3861

1505995 (Migration) [2015] AATA 3861 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonathan Matthew Brian Forbes

CASE NUMBER:  1505995

DIBP REFERENCE(S):  BCC2015/643825

MEMBER:Suhad Kamand

DATE:10 December 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 10 December 2015 at 9:36am

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

2. The applicant applied for the visa on 27 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) which requires, where an applicant is or has previously been in Australia as the holder of a working holiday visa, the Minister to be satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that 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 that the applicant had completed the prescribed period of specified work.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. It is not in dispute that, at the time of application for the visa the subject of this review, the applicant was in Australia as the holder of a Working Holiday subclass 417 visa which was granted on 30 January 2014 and ceased on 4 March 2015. The applicant entered Australia as the holder of that visa on 4 March 2014.

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

5. Clause 417.211 requires specifically, 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.

6. The issue in this case is whether the Tribunal is satisfied, on the evidence before it that, at the time of application (ie on 27 February 2015), the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a subclass 417 visa.

7. The delegate was not satisfied that the applicant had completed the prescribed period of specified work because the applicant had not, at the time of the delegate’s decision, provided relevant information requested by the delegate. Specifically, on 4 March 2015 the department asked the applicant to provide further evidence of having completed specified work while holding his prior Working Holiday Visa, including: completed Employment Verification Form 1263; bank statements covering the period of specified work; job descriptions; payslips, group certificates or tax returns; bus tickets, accommodation or general receipts in the applicant’s name; and employer references on official letterhead. The applicant was given 28 days to provide that information which was not received at the date of the delegate’s decision.

8. The expression, ‘3 months’ is not defined in the Regulations, however Departmental guidelines (PAM 3), while not binding, suggests that: 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year; the work should be the equivalent of full time work for that employer, that region and that industry, eg if standard practise in the industry is 2 weeks on and 2 weeks off, the applicant would be considered to have worked for 4 weeks in such a situation.[1]

   [1] PAM3: Sch2Visa417 at [21.2].

9. It is important to not, however, that, cl417.211 does not require the work to be done on a full time basis. The instrument for ‘specified work’ refers to ‘any type of work identified in the list below’ and does not explicitly require the work to be conducted on a full time basis.[2]

   [2] See the ‘sc 417 - SpecWork&RegAust’ tab of the MRD Legal Services Register of Instruments Miscellaneous and Other Visa Classes.

10. The requirement to carry out ‘at least 3 months’ specified work refers to the cumulative period of work carried out by the applicant and the work need not be completed in a continuous block.

11. In support of his review application the applicant provided the Tribunal with much of the information the Department had requested in its letter of 4 March 2015, including: a completed Form 1263, payslips, bank accounts records, job descriptions and contact details for the specified work he claims to have undertaken. The Tribunal has contacted all the employers specified by the applicant. All relevant ‘Specified work’ and ‘regional Australia’ specified by the applicant is detailed below.

12. Pironne Brothers. The applicant claims to have undertaken vegetable picking for 10 days between 8 September 2014 and 28 November 2014 at postcode 4807 for this employer. Pirrone Brothers confirmed to the Tribunal in writing that the applicant: worked for them at postcode 4807; was employed “picking vegetables”; worked on the following dates in 2014: 8 September, 9 September; 2 October, 5 November, 6 November, 7 November, 10 November, 11 November, 27 November, 28 November. Pirrone Brothers also submitted a PAYG slip to evidence this employment. The Tribunal finds that the applicant undertook 10 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for this employer, at a postcode within “regional Australia” as contemplated by that instrument and that it was undertaken while the applicant held his last WHV.

13. DM Jennings and Sons. The applicant claims to have undertaken “Strawberry picking/packing) for 4 days commencing on 5 January 2015 and ending on 10 January 2015, at postcode 7112 for this employer. DM Jennings and Sons confirmed to the Tribunal in writing that the applicant worked for “one pay week picking strawberries, commencing 5 January 2015 and ending on 10 January 2015. They did not specify the postcode at which the work was undertaken. They provided a PAYG certificate to evidence the work undertaken. Given the overwhelming consistency between the applicant’s evidence and the responses from his specified employers, detailed in the balance of this decision record, the Tribunal accepts that this work was undertaken at postcode 7112. The Tribunal finds that the applicant undertook 4 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for this employer, at a postcode within “regional Australia” as contemplated by that instrument and that it was undertaken while the applicant held his last WHV

14. BA, SP and TB Gribbs. The applicant claims to have undertaken 14 days of “apple summer pruning” here between 3 February 2015 and 24 February 2015, at postcode 7116. The employer informed the Tribunal in writing that the applicant was employed in “apples – summer pruning on 16 days in February 2015 (between 3 and 26 February 2015), at postcode 7116. While there is a discrepancy of 2 days, the Tribunal notes that the applicant’s employer provided exact dates on which the applicant worked in February 2015 and accepts that he worked 16 days. The Tribunal finds that the applicant undertook 16 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for this employer, at a postcode within “regional Australia” as contemplated by that instrument and that it was undertaken while the applicant held his last WHV.

15. Lawblew Pty Ltd. The applicant claims to have undertaken 35 days of “mango picking” at postcode 4809 for this employer between 20 November and 30 December 2014. This was confirmed to the Tribunal in writing by the employer. The only discrepancy was that the employer identified the applicant ceasing work on 31 December rather than 30 December 2014. A PAYG certificate was provided by the employer evidence the work undertaken. The Tribunal finds that the applicant undertook 35 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for this employer, at a postcode within “regional Australia” as contemplated by that instrument and that it was undertaken while the applicant held his last WHV

16. LaPhoenix Enterprises. The applicant claims to have undertaken 17 days work as a “pallet stacker” at postcode 4809 between 13 September 2014 and 23 October 2014. Despite multiple attempts to contact the employer by email and telephone, the Tribunal was unable to make contact with the applicant’s employer. However, the applicant submitted to the Tribunal payslips from the employer, as well as bank records identifying pay being deposited into his account by this employer. The dates of those deposits correspond to the period the applicant claims to have undertaken the work. Based on that evidence and the overall consistency between the applicant’s evidence generally, and the responses of his employers detailed in the balance of this decision record, the Tribunal accepts that the applicant undertook the work claimed. The Tribunal finds that the applicant undertook 17 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for this employer, at a postcode within “regional Australia” as contemplated by that instrument and that it was undertaken while the applicant held his last WHV.

17. Calvert Bros.  The applicant claims to have undertaken 11 days of “apple thinning” work at postcode 7109 for this employer. The employer confirmed in wrirtng that the applicant worked for him between 12 January 2015 and 4 February 2015. He did not confirm the location or nature of the work undertaken, or the number of days worked. He did, however, provide a PAYG certificate evidencing the applicant’s work. Given the overall consistency between the applicant’s evidence generally and the responses of his employers detailed in the balance of this decision record, the Tribunal accepts that the applicant undertook the work claimed. The Tribunal finds that the applicant undertook 11 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for this employer, at a postcode within “regional Australia” as contemplated by that instrument and that it was undertaken while the applicant held his last WHV.

18. On the basis of the above, the Tribunal finds that, at the time of application for the visa the subject of this review, the applicant had carried out a cumulative period of 93 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for the above employers, at postcodes within “regional Australia” as contemplated by that instrument.

19. 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

20. 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.

    Suhad Kamand

    
    

    Member