1510945 (Migration)

[2015] AATA 3461

1510945 (Migration) [2015] AATA 3461 (7 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Seonhee Lee

CASE NUMBER:  1510945

DIBP REFERENCE(S):  BCC2015/1767181 CLF2015/53201

MEMBER:Michelle Grau

DATE:7 October 2015

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 07 October 2015 at 10:17am

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 4 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).

2. The applicant applied for the visa on 20 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.

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 the applicant had undertaken specified work as defined in Legislative Instrument IMMI08/048.

4. The applicant appeared before the Tribunal on 7 October 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant’s work in a regional area is of the kind specified in IMMI08/048.

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

8. 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.

9. In her application, the applicant claimed she was a helper and performed gardening and weeding at Parson Bay Retreat in Tasmania in return for accommodation and food. She worked 6 days a week for 5 hours a day between 21 March 2015 and 17 June 2015.

10. The applicant’s employment letter stated the applicant performed many and varied tasks in the gardens (weeding and planting), grounds and also in composting and the care of the chickens.

    3 months work

11. The Regulations define work in r.1.03 as follows:

    work means an activity that, in Australia, normally attracts remuneration.

12. Whilst the construction of that definition is a question of law, the question of whether a person’s activities fall within the definition is a question of fact to be determined by the Tribunal. The Courts have made it clear that the definition includes activities for which a person is not remunerated, as long as it is ‘an activity that normally attracts remuneration’: see Braun v MILGEA (1991) 33 FCR 152 at 156 (French J, 10 December 1991).

13. The Tribunal notes that the department’s policy in the relevant Procedures Advice Manual (PAM3) states:

    Under policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year. One full day of work is defined as having worked the minimum number of hours considered a standard day by the particular industry in which the applicant is employed. Generally, the Australian working week is 35 to 40 hours, consisting of 7 to 8 hours of work each day. Individual employers can not set a smaller period of time than the industry standard to satisfy the specified work requirement.

14. Further, while the policy notes 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’.

15. The Tribunal notes that while the applicant was not remunerated for her work, she was provided accommodation and food in return  and the work that she was doing is clearly within the definition of ‘work’ contained in the Regulations as it involves ‘an activity that normally attracts remuneration’ in the sense discussed by French J in Braun (supra).

16. Based on the documentary and oral evidence from the applicant and employer the tribunal accepts the applicant worked 30 hours a week between the period 21 March 2015 and 17 June 2015, which is a period of 89 days.

17. The expression, ‘3 months’ is not defined in the Regulations; however the Tribunal notes that 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. The Tribunal is not bound to follow DIAC policy, however as regards this issue it appears to provide an appropriate measure of an inexact term.

18. It is important to note the policy, in so far as it requires an applicant to have worked on a full time basis, appears to go beyond the requirements of the legislation as 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.

19. Accordingly, the Tribunal finds that the tasks performed by the applicant at Parsons Bay Retreat constituted ‘work’ for the purposes of the Regulations, and that she performed those tasks for three months during the period from 21 March 2015 and 17 June 2015.

    Specified work

20. The tribunal has had regard to the relevant instrument which specifies the type of work required to be undertaken. The tribunal notes it relevantly refers to:

    (a) plant and animal cultivation

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

    …(vi) maintaining animals for the purpose of selling them or their bodily produce, including natural increase

21. On 6 October the applicant’s agent provided submissions and a further letter which elaborated on the applicant’s work duties. These included planting, weeding, crop maintenance, harvest of produce such as Kale, broccoli, pumpkins, potatoes, garlic and salad mix. She was also involved in care and maintenance of chickens, including feeding, cleaning the pans and collecting eggs for consumption.

22. The applicant elaborated at hearing on the tasks performed and hours and period worked. The tribunal accepts her evidence and the documentary evidence provided by her employer. The tribunal finds the applicant was engaged in cultivating plants and crops and maintaining animals for the purpose of selling their bodily produce.

23. Given this evidence, the Tribunal is satisfied that the applicant’s work meets the description of plant cultivation work in IMMI 08/088, specifically (a) (iv) and (vi) above.

    Work in regional Australia

24. The tribunal accepts the applicant carried out work in Tasmania, which according to the relevant instrument is in regional Australia.

25. Accordingly, the Tribunal finds that the applicant has carried out work in Australia as the holder of a subclass 417(working holiday) visa, that the work was ‘specified work’ as set out in the relevant instrument, and that the location of the work was in regional Australia as defined in the relevant instrument.

26. 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

27. 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.

    Michelle Grau

    
    

    Member