1509409 (Migration)

[2015] AATA 3584

1509409 (Migration) [2015] AATA 3584 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Jihyung Lee

CASE NUMBER:  1509409

DIBP REFERENCE(S):  BCC2015/1340729 CLF2015/47652

MEMBER:Rachel Homan

DATE:29 October 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 criterion for a Subclass 417 (Working Holiday) visa:

·cl.417.211(5) of Schedule 2 to the Regulations.

Statement made on 29 October 2015 at 3:49pm

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 24 June 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 8 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). 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 applicant had been in Australia as the holder of a Subclass 417 visa, and the delegate was not satisfied that the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.

4. The applicant appeared before the Tribunal on 29 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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 has carried out specified work in regional Australia for a total period of at least 3 months.

   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 IMMI08/48 (F2008L02264).

8. Relevantly to this case, areas in Queensland with the postcodes 4522 to 4899 are specified as ‘regional Australia’. ‘Specified work’ includes any type of work identified in a list which relevantly includes:

   “(a) plant and animal cultivation

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

9. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration. Whilst the construction of that definition is a question of law, the question of whether a visa holder’s activities fall within the definition is a question of fact to be determined by the Minister (or the Tribunal on review).[1] The definition provided in r.1.03 may include an activity for which an individual visa holder is not remunerated. It is sufficient that it ‘be an activity that normally attracts remuneration’.[2]

   [1] Al Ferdous v MIAC [2011] FCA 1070 (Stone J, 20 September 2011) at [25], where her Honour observed that ‘involved in that finding [that the applicant’s activity was capable of being work within the meaning of the definition and was in fact work] is a conclusion of law in the construction of the definition and a question of fact in finding that the appellant’s actions were work within the definition as construed’.

   [2] Braun v MILGEA (1991) 33 FCR 152 at 156 (French J, 10 December 1991). Braun considered the definition in then r.2, in which work was also defined ‘as an activity that, in Australia, normally attracts remuneration’.

10. The expression, ‘3 months’ is not defined in the Regulations; however Departmental guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. Further, these guidelines specify that the work should be the equivalent of full time work for that employer, that region and that industry. The Tribunal notes, however, that cl.417.211 does not on its face require the work to be done on a full time basis. Further, the instrument for ‘specified work’ refers only 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.

11. The visa applicant is a 27-year-old South Korean national who entered Australia as the holder of a subclass 417 Working Holiday visa, which was valid for one year, on 16 October 2014. The applicant briefly departed Australia on 3 March 2015 and returned on 11 March 2015.

12. In her visa application, the applicant declared that she had undertaken specified work in regional Australia for a total of three months. The applicant claimed that this work mainly occurred in the agriculture, forestry and fishing industry. The applicant declared that she had approved evidence that she had undertaken specified work in regional Australia for a total of three months.

13. On 19 May 2015, the Department asked the applicant to provide evidence of the specified work she had completed. On 21 June 2015, the applicant submitted a completed Form 1263, payslips, a bank statement, completed bank authorisation and job descriptions.

14. According to information provided in her Form 1263, the applicant was employed picking capsicum for KS Contractors for 40 days between 8 December 2014 and 18 January 2015 in postcode 4670 (Bundaberg, Queensland). The applicant was then employed in the same postcode by AHW Global Pty Ltd doing fruit picking for 42 days between 19 January 2015 and 1 March 2015. The applicant was again employed in postcode 4670, picking lemons, for 13 days for DSH Labour Pty Ltd between 17 March 2015 and 29 March 2015.

15. The applicant submitted payslips from the three employers covering the periods specified above. The payslips do not show the hours worked by the applicant but indicate that she was paid by the ‘bin’ or the volume of fruits or vegetables harvested. The applicant also submitted a Commonwealth Bank statement for the period 3 December 2014 to 31 December 2014, which showed payments made on 22 December 2014 and 30 December 2014 by KS Contractors. The applicant did not provide bank statements for the period January to March 2015 but did authorise the Department to obtain information from her bank.

16. At the time she applied for review, the applicant submitted duplicates of the same documents submitted to the Department, as well as a Commonwealth Bank statement for the period 1 January 2015 to 30 June 2015. The additional bank statement shows payments made by KS Contractors on 5 January, 12 January, 17 January and 28 January 2015. The statement also shows payments made by AWH Global on 2 February, 10 February, 16 February, 23 February and 3 March 2015. In addition, deposits with the transaction reference “wage” from an unknown source appear on 29 March 2015 and 3 April 2015. The bank statement also shows multiple other transactions in and around the Bundaberg area up until May 2015.

17. At the Tribunal hearing, the applicant provided oral evidence regarding her employers, dates of employment and the nature of her work that was consistent with her documentary evidence. The applicant claimed that she found work in Bundaberg through her roommate in Sydney who had previously worked for the same employers. The applicant told Tribunal that during her stay in Bundaberg she lived at a caravan park.

18. The applicant described a typical working day for KS Contractors, picking capsicums, as starting at 5 AM. The applicant stated that she was given a large basket which she filled with capsicums then returned to a truck waiting nearby. The applicant had an individual tag number which was recorded and she would be handed a new basket to fill. The applicant stated that during a good shift she was able to fill 20 baskets, but worked in a group of 10 people and they were each paid a proportion of the total volume of capsicums picked by the group. Other people in the group were able to pick a considerably larger volume of capsicums than the applicant. The applicant provided evidence consistent with the payslips before the Tribunal that she was paid one dollar per basket filled. The applicant stated that she worked 7 to 8 hours a day and worked five days a week during the period she was employed by KS Contractors, with weekends off.

19. The applicant told Tribunal that she was then employed picking lemons for AHW Global. The applicant told the Tribunal that she would carry a kangaroo bag, which she would fill with lemons. She would climb a ladder and measure the lemons by placing them in a ring. If the lemons were smaller than the ring they were not ready to be picked. The lemons were then harvested using scissors. When the applicant’s kangaroo bag was full, she would return the lemons to a “mega bin” into which the lemons were released. The applicant gave evidence that she was paid $100 per mega bin. The applicant told the Tribunal that she worked in a group of four people and together they were able to fill 4 to 5 bins per day. The applicant told the Tribunal that she worked five days per week during the period in which she was employed by AWH Global.

20. The applicant told the Tribunal that between 3 March 2015 and 11 March 2015, she visited South Korea and Japan. Upon her return to Australia, she returned to Bundaberg and continued to work picking lemons for a new employer, DSH Labour. The applicant stated that she worked with DSH Labour for 13 days and the work processes were much the same as with AWH Global.

21. The applicant also submitted to the Tribunal a 2014/2015 Australian Tax Return which provides details of four employers and indicates that the occupation in which the applicant earned most of her income during the period was “Farm hand/ worker – fruit or nut picker”. The gross payments made by three of the employers are consistent with the payslips before the Tribunal.

22. On the basis of the bank statements before it, the Tribunal is satisfied that the applicant was physically present in a location specified as ‘regional Australia’ for at least three months. The bank statements, payslips and tax return, taken together with the applicant’s detailed oral evidence, satisfy the Tribunal that the applicant was employed whilst in that location doing fruit and vegetable harvesting which, the Tribunal is satisfied, constitutes ‘specified work’. The Tribunal is satisfied that during the three month period the applicant was employed in Bundaberg she generally worked 5 days per week on weekdays and had weekends off. The Tribunal is further satisfied that the applicant was the holder of a Working Holiday visa throughout this period.

23. For the above reasons, the Tribunal is satisfied that the applicant had, at the time she made the present visa application, carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa. Therefore, the applicant satisfies cl.417.211(5). 

24. 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

25. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 417 (Working Holiday) visa:

    ·cl.417.211(5) of Schedule 2 to the Regulations.

    Rachel Homan

    
    

    Member