1510781 (Migration)

[2016] AATA 3052

1510781 (Migration) [2016] AATA 3052 (12 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Stacey Hurst

CASE NUMBER:  1510781

DIBP REFERENCE(S):  BCC2015/1807520

MEMBER:Suhad Kamand

DATE:12 January 2016

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 12 January 2016 at 10:15am

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 6 August 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 24 June 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 11 April 2014 and ceased on 20 July 2015. The applicant entered Australia as the holder of that visa on 20 July 2014.

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

5. 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.

6. The issue in this case is whether the Tribunal is satisfied, on the evidence before it that, at the time of application (ie 24 June 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 applicant declared that she had undertaken specified work with Appleton Pastoral Company from 2 February 2015 until 25 May 2015 at postcode 4724. However, by the date of the delegate’s decision she had not responded to the department’s request for further, verifying information regarding that work.

8. In support of her application for this Tribunal’s review the applicant provided additional information comprising the following: a completed form 1263 detailing her employment while holding her previous Subclass 417 visa; a letter from Anna Appleton confirming the applicant’s work; a letter detailing why she failed to respond to the Department’s request for additional information.

9. Of relevance to the issues under review, the applicant’s Form 1363 indicates that she worked as a station hand from 20 January 2015 until 17 July 2015 for the Appleton Pastoral Company at the Islay Plains Station in Alpha, Queensland, postcode 4724. The actual number of days worked is given as 101.

10. The letter from Anna Appleton, dated 30 July 2015, confirms the applicant’s employment at the Islay Plains Station from 20 January 2015 until 17 July 2015, offering that the applicant’s “primary role was general station duties, which included the daily care of station animals (working dogs, horses, milking cows etc) and all aspects of general stock work (ie mustering, drafting, trucking cattle). In return for her work Stacy is provided with full board and keep”.[1]

    [1] Folio 26, Tribunal file 1510781

11. In her letter to the Tribunal the applicant explained that she had missed the Department’s request for further information which was sent to her by email as mobile phone and internet reception in the rural area of Queensland in which she was residing was restricted.

12. The Tribunal contacted Anna Appleton of Appleton Pastoral Company by email to verify the work undertaken by the applicant. Ms Appleton confirmed the details referred to in paragraph 10 above. In addition, she confirmed that the applicant was employed on a full-time basis between the dates given and that, while she was not paid, she was remunerated by being provided with full bard and keep, including accommodation, electricity, all meals, phone and internet access and vehicle use, including fuel.

13. Based on the evidence before it the Tribunal is satisfied that, at the time of application on 24 June 2015, the applicant had worked on a full time basis as a station hand at Appleton Pastoral Company, located at Islay Plains Station, from 20 January 2015. The Tribunal accepts that the work falls within the nature of specified work as contemplated by clauses 3(a)(vi) – (viii) of instrument Immi 08/048. The Tribunal accepts that the work was undertaken at postcode 4724, a postcode identified as regional within the relevant instrument.

14. Accordingly, based on the evidence before it and the considerations and findings above, above, the Tribunal finds that, at the time of application the applicant had carried out specified work within regional Australia for a total period of at least 3 months as the holder of a Working Holiday Visa as required by clause 417.211(5).

15. 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

16. 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