1512147 (Migration)

[2016] AATA 3358

1512147 (Migration) [2016] AATA 3358 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jack Dennett

CASE NUMBER:  1512147

DIBP REFERENCE(S):  CLF2015/57429

MEMBER:Linda Symons

DATE:2 March 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 02 March 2016 at 12:24pm

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 28 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 to the Department of Immigration and Border Protection (the Department) for the visa on 16 August 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 she was not satisfied that the work undertaken by the applicant was specified work as defined.  

4. The applicant appeared before the Tribunal on 2 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Matthew Sherwood.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether the applicant meets the requirements of cl.417.411(5).

   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 IMMI 08/048.

8. The records of the Department indicate that the applicant was previously granted a subclass 417 Working Holiday visa on 18 July 2014 and that this visa was valid until 5 October 2015. He has provided to the Department the following documents in relation to work undertaken by him during the validity of this visa:

   ·Form 1263 – Working Holiday visa: Employment verification. This form indicates that he was employed by Paradise Landscaping NT Pty Ltd from 20 April 2015 to 12 August 2015 as a landscaper.

   ·Commonwealth Bank statements in the applicant’s name covering the specified period and showing regular deposits into his bank account of wages from Paradise Landscaping NT Pty Ltd.

   ·Payslips from Paradise Landscaping NT Pty Ltd.

   ·A PAYG Payment Summary for the period 20 April 2015 to 30 June 2015 issued by Paradise Landscaping NT Pty Ltd.

   ·A Job description which indicated that he worked as a landscaper working with a landscaping crew performing manual labour work.

9. On 9 February 2016, the Tribunal received a letter and some supporting documents from the applicant. He stated that his friend and colleague, Craig Barr, worked with him on the same landscaping crew, performed the same duties and worked the same hours. He stated that Craig Barr was granted a second Working Holiday visa but he was not. He provided the Tribunal with a copy of the operator’s manual setting out the standard operating procedure for wood chippers. This document was issued by Paradise Landscaping NT Pty Ltd. He stated that this document was given to him when he first starting working at Paradise Landscaping NT Pty Ltd. He stated that a wood chipper is a piece of machinery used for turning wood into mulch during the tree felling process. He provided the Tribunal with a copy of a photograph of a wood chipper.

10. At the hearing, the applicant gave evidence that he worked as a landscape labourer at Paradise Landscaping from 20 April 2015 until the last Friday in August 2015. He stated that he worked full time. He stated that he worked for 9 to 10 hours a day from Monday to Friday and a half day on Saturday. He stated that Paradise Landscaping had a contract with the Royal Australian Air Force and he was part of a team what was involved in clearing land in a forested area for defence housing. He stated that the team was required to fell the trees and feed them into a chipper onsite. He stated that the chipper converted the trees into mulch and fed it into a truck which they then transported to the place where the mulch was processed. When asked whether he undertook any other duties, he stated that he also did some work putting in top soil, temporary irrigation and planting. He stated that he primarily worked on felling trees. 

11. The Landscape Project Manager from Paradise Landscaping, Matthew Sherwood, also gave evidence at the hearing. His evidence was consistent with the evidence given by the applicant.

12. Based on the evidence before it, the Tribunal is satisfied that the applicant worked at Paradise Landscaping NT Pty Ltd from 20 April 2015 to 20 August 2015. The Tribunal is satisfied that the work carried out by the applicant was specified work as described in IMMI 08/048 Item 3(c) - Tree farming and felling.

13. The Tribunal is satisfied that the applicant carried out the work at postcode 0828 (Knuckley Lagoon (Darwin)) and that it was therefore carried out in regional Australia as specified in IMMI 08/048.

14. In view of the above, the Tribunal is satisfied that, at the time of 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. Accordingly, the Tribunal finds that the applicant satisfies the requirements of cl.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.

    Linda Symons
    Member