1507287 (Migration)

[2016] AATA 3526

1507287 (Migration) [2016] AATA 3526 (11 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wadiee Jabrane RAMDANI

CASE NUMBER:  1507287

DIBP REFERENCE(S):  BCC2015/846029

MEMBER:Jane Bishop

DATE:11 March 2016

PLACE OF DECISION:  Brisbane

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 11 MARCH 2016 AT 1:44PM

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 May 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 he had completed three months specified work in regional Australia.

4. The applicant appeared before the Tribunal on 11 March 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

1. 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.

2. The applicable instrument is IMMI 08/048 Working holiday visa - definitions of 'specified work' and 'regional Australia' (item 1225(5)).

10.  Relevantly, the types of specified work referred to in the instrument include:

a)      plant and animal cultivation

(i)      the harvesting and/or packing of fruit and vegetable crops

(ii)      pruning and trimming vines and trees

(iii)      general maintenance crop work

(iv)      cultivating or propagating plants, fungi or their products or parts

(v)      immediate processing of plant products

11.  IMMI08/048 defines ‘regional Australia’ as including the areas in postcodes listed in the Schedule to the instrument, which relevantly includes Queensland’s 4522 to 4899.

12.  In his visa application the applicant stated that he had performed specified work between 19 November 2014 and 14 March 2015 (a period of 116 days). The Department wrote to the applicant on 23 March 2015 providing details of the type of evidence he was required to submit and allowing him 28 days from receipt of the letter to provide that evidence. No response was received and the delegate refused the application.

13.  On the Tribunal’s file there is part of a Form 1263 signed by Mike Grant. Mike Grant indicated the applicant worked propagating plants in postcode 4570 for the period 19 November 2014 to 14 March 2015. He indicated that the applicant worked 88 actual days. In a signed letter from Mike Grant dated 18 December 2015 he states that the applicant undertook weeding, watering, cutting and potting.

14.  During the hearing the applicant said that he worked five to six days a week from seven in the morning until three or four in the afternoon. He would have an hour off for lunch. He said some friends came to Australia during December 2014 and he took about two weeks off to go travelling with them. He and his friends went to the Sunshine Coast and New South Wales (NSW).

15.  The Tribunal asked the applicant why his bank statements had transactions in NSW during the period he said he was working on the farm. The applicant responded that he has a close friend in NSW that would put money into his bank account from time to time. He said he would sometimes put money into her bank. The Tribunal asked the applicant why it could not find a listing for the nursery that he worked for on Google. The applicant responded that he did not know. He said people would come down a small road and ring a bell on the gate to purchase plants. He said the farm manager would load up his van and go to Brisbane once a week to sell plants at the markets. During the hearing the Tribunal asked the applicant to locate the business on a satellite image and explain what the structures were. The applicant was able to do both.

16.  The applicant told the Tribunal that he was not paid for his work but received accommodation and food in exchange for his labour. The applicant indicated that the arrangement was part of the WWOOF[1] scheme.

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

17.  This definition of ‘work’ in r.1.03 of the Regulations states that work means an activity that, in Australia, normally attracts remuneration. 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.

18.  The Tribunal is satisfied that the applicant performed specified work of at least 88 days referred to in the instrument and that work was carried out in postcode 4570 which is located in regional Australia as defined in the relevant instrument.

19.  The Department movement records indicate that the work was carried out at a time when the applicant was the holder of a Class TZ-417 ‘working holiday’ visa, as defined in cl.417.111 and that the applicant entered Australia as the holder of that visa.

20.  The Tribunal therefore finds therefore that the applicant satisfies cl.417.211(5). 

21.  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

22.  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.

Jane Bishop

Member