1507720 (Migration)

[2015] AATA 3931

1507720 (Migration) [2015] AATA 3931 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ciaran Seamus Murphy

CASE NUMBER:  1507720

DIBP REFERENCE(S):  BCC2015/1362677 CLF2015/34407

MEMBER:Chris Thwaites

DATE:18 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 18 December 2015 at 1:25pm

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 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 12 May 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. On 19 May 2015 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 thee months of specified work in regional Australia.

4. On 5 June 2015 the applicant applied to the Tribunal for review of that decision.

5. On 29 November 2015 the applicant provided a number of payslips from PW Day Nominees P/L in support of his application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has before it the Department’s file relating to the applicant and the Tribunal’s file relating to the review application. The Tribunal has also had regard to the decision record and the evidence in support provided to the Tribunal by the applicant.

7. The applicant appeared before the Tribunal on 11 December 2015 to give evidence and present arguments. At the conclusion of the hearing the Tribunal granted the applicant’s request to allow him until 15 December 2015 to provide pay advices / pay slips for the work he did on a dairy farm in Katunga in regional Victoria.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   FINDINGS AND REASONS

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

9. Clause 417.211(5) requires that if the applicant is in Australia as the holder of a subclass 417 visa at the time of the visa application, the applicant has 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.

10. At the hearing the applicant told the Tribunal that he was a citizen of Ireland and confirmed he first arrived in Australia on 13 May 2014 as the holder of a subclass 417 working holiday visa. 

11. During the hearing the Tribunal discussed with the applicant the requirement to have carried out specified work in regional Australia for a total period of at least 3 months. The Tribunal noted that while the term “for a total period of at least 3 months” is not legislatively defined, departmental policy suggests 3 months should be taken to mean a period of 88 days.

12. In relation to the work the applicant had undertaken in regional Australia during the relevant period, the applicant told the Tribunal that he had undertaken work on a dairy farm in Katunga in the post code area 3640 for four days prior to being recruited to work for Days Fuel and Fertilisers Pty Ltd undertaking harvesting and crop work, initially for fourteen days in Nyngan, and then in Oakland in the postcode area 2646 from 4 October 2014 until he left work on 23 December 2014 to travel to Ireland for Christmas.

13. The applicant told the Tribunal there had been some confusion about his pay and payslip with his employer Days Fuel and Fertilisers Pty Ltd, and that the pay slips he was able to provide were not a complete record of the days he had worked as they did not cover the 14 day period in Nyngan. The applicant also told the Tribunal he had worked more hours than was represented on the payslips, often working 100 hours a week.

14. On questioning the applicant confirmed he left work on 23 December 2014 to travel to Ireland for Christmas and then returned to Australia on 31 January 2015. The applicant told the Tribunal he did not return to work on the farm after he returned to Australia and prior to making his second working visa application, as he believed he had completed the requirement for regional work. The Tribunal noted the payslips provided by the applicant indicated he was paid for three weeks after he left Australia on 23 December. The applicant suggested this may have been a way to pay him for the hours he had previously worked and had not been paid for.

15. The Tribunal accepts the applicant has faced difficulties in obtained a complete record of his salary payments for the work he undertook. The Tribunal notes the applicant has not provided any documents in relation to his work on the dairy farm in Katunga, despite being provided with time after the hearing in which to do so. While the applicant advised the Tribunal on 16 December 2015 that he would provide an email that day, the Tribunal has not received any further documents from the applicant. Nevertheless, the Tribunal found the applicant to be an honest and credible witness, whose oral evidence was consistent with departmental records and was partially supported by the documents submitted to the Tribunal, and the Tribunal accepts the applicant’s oral evidence that he undertook four days of work on a dairy farm in Katunga.  

16. The Tribunal has taken into consideration the character references the applicant submitted during the hearing, and his oral evidence that he wishes to remain in Australia with his girlfriend and develop his business in the community he now lives in. The Tribunal accepts the applicant has told the truth about the work he undertook in regional Australia, and on the basis of the evidence before it the Tribunal makes the following findings:

    ·The applicant arrived in Australia on 13 May 2014 as the holder of a Working Holiday (Temporary) (Class TZ) subclass 417 visa granted to him on 1 May 2014 and which ceased on 13 May 2015;

    ·The applicant was the holder of a subclass 417 visa at the time he applied for his second Working Holiday (Temporary) (Class TZ) subclass 417 visa on 12 May 2015;

    ·Prior to making his second subclass 417 visa application the applicant worked on a dairy farm in Katunga in postcode area 3640 for four days before he was recruited to work for Days Fuel and Fertilisers Pty Ltd undertaking harvesting and crop work, initially for fourteen days in Nyngan, and then in Oakland in the postcode area 2646 from 4 October 2014 until he left work on 23 December 2014 to travel to Ireland for Christmas;

    ·The Tribunal finds the work carried out by the applicant falls within “plant and animal cultivation” and is “specified work” for the purposes of Instrument IMMI 08/048, and was carried out within the areas covered by the postcodes listed in the Schedule to Instrument IMMI 08/048.

17. The Tribunal must also determine whether the work carried out by the applicant was for a total period of at least 3 months. As noted above, the term “for a total period of at least 3 months” is not legislatively defined, and departmental policy suggests 3 months should be taken to mean a period of 88 days, being the shortest possible combination of months in a calendar year. That policy also indicates the work should be the equivalent to full time work for the particular employer in that region and industry and provides examples of how that policy could apply to particular fact scenarios. Such policy does not have the force of legislation, but is nevertheless a useful guide to assist decision makers in applying the law consistently.

18. While the Tribunal accepts the applicant undertook the specified work in regional Australia in good faith, and often worked very long hours, and believed he had completed the requirements for his second working holiday visa, unfortunately the Tribunal has no discretion in relation to this requirement, and on the evidence before it, the Tribunal finds that the applicant carried out 85 days of specified work in regional Australia prior to his first working holiday visa ceasing.

19. The Tribunal finds that although the applicant did undertake 85 days of specified work in regional Australia, he has not carried out at least 3 months of specified work in regional Australia as required by cl.417.211(5).

    Conclusion

20. On the evidence before it, the Tribunal finds the applicant does not satisfy the requirements of cl.417.211(5).

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Chris Thwaites
    Member  18 December 2015