1512944 (Migration)

[2016] AATA 3635

1512944 (Migration) [2016] AATA 3635 (1 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wing Yin Tang

CASE NUMBER:  1512944

DIBP REFERENCE(S):  CLF2015/60505

MEMBER:Rachel Homan

DATE:1 April 2016

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

Statement made on 01 April 2016 at 2:28pm

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 September 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 11 July 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 18 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Applicable law

6. 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).

7. Relevantly to this case, ‘regional Australia’ includes New South Wales postcodes 2787 to 2898. ‘Specified work’ includes:

   (a) plant and animal cultivation

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

   (ii) pruning and trimming vines and trees

   (iii) general maintenance crop work

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

   (v) immediate processing of plant products

   (vi) maintaining animals for the purpose of selling them or their bodily produce, including natural increase
   (vii) immediate processing of animal products including shearing, butchery, packing and tanning

   (viii) manufacturing dairy produce from raw material

8. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration. 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.

   Claims and evidence

9. The applicant is a 23-year-old Hong Kong SAR passport holder, who arrived in Australia on 6 August 2014 as the holder of a subclass 417 visa. The applicant’s first Subclass 417 visa expired on 6 August 2015 and she has remained in Australia as the holder of a bridging visa since lodging the present application.

10. In her visa application form, the applicant indicated that she had undertaken specified work in regional Australia for a total of three months mainly 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 the requisite period. The applicant specified that she had been employed in New South Wales postcode 2800 between 8 March 2015 and 29 June 2015.

11. Shortly after lodging the visa application with the Department, the applicant was requested to provide additional evidence of the work declared in her visa application. In response, the applicant submitted a completed Form 1263, in which she claimed to have been employed by Angus Manpower Pty Ltd in Orange, NSW, picking grapes for 44 days between 8 March 2015 and 30 April 2015. The applicant also claimed to have been employed by the same business, in the same location picking oranges for 50 days between 1 May 2015 and 29 June 2015. The applicant claimed to have worked 4-6 days per week on a casual basis for 2-5 hours per day.

12. In support of her claims, the applicant submitted a tax invoice for travel by train and coach on 8 March 2015 to Orange NSW. The applicant also submitted payslips from Angus Manpower Pty Ltd covering the period 3 March 2015 to 29 June 2015, as well as Commonwealth Bank statements covering the same period. The applicant also submitted a copy of a PAYG summary from Angus Manpower Pty Ltd, showing the applicant received a gross payment of $4,338 in the 2014-2015 financial year.

13. The delegate accepted that the evidence submitted to the Department appeared genuine and supported the applicant’s claims. The delegate found, however, that the applicant had claimed to have worked only 2 to 5 hours per day. The majority of the payslips were for small amounts, which was consistent with the applicant’s claim to have worked short days. Applying departmental policy, the delegate found that none of the work completed by the applicant met the Australian industry standard work day. The delegate concluded that the applicant had not completed the required 88 days of specified work.

14. At the time she applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision. No further documentary evidence was provided prior to the Tribunal hearing.

15. At the Tribunal hearing, the applicant confirmed that she had undertaken work picking grapes and oranges in various locations around Orange between March and the end of June 2015. The applicant told the Tribunal that she found the work after responding to an online advertisement. The applicant said that she lived in share houses in Orange and Narromine during the relevant period with around 7 other persons who were doing the same type of work.

16. The applicant gave evidence that she would be told the day before whether she was required to work the following day. On each working day, she and the other workers would be picked up by their employer and driven to different farms for work. Their start time would vary from day to day and would range from 6am to noon. The applicant estimated that she generally worked 3 to 5 days per week and on average worked 4 hour shifts. The start time and duration of the work was often dependent on weather conditions.

17. The applicant said she did not have to complete a timesheet or other record of the days or hours she worked. The applicant’s evidence was that she was paid based on the number of trays she filled with fruit. The applicant had some difficulty recollecting how long it took to fill a tray, but estimated that it was ‘a couple of minutes’ for a tray of grapes and longer for a tray of oranges, perhaps 25 to 30 minutes.

18. The Tribunal discussed with the applicant the Department’s policy on how the three month work requirement should be calculated but noted that the Tribunal was not bound by such policy in interpreting and applying the legislation. The Tribunal put to the applicant that based on her evidence, she did not appear to meet the policy requirements, but noted that the Tribunal would have to consider for itself what the visa criteria required. The applicant indicated that she had nothing to say in relation to how the criteria should be applied or interpreted. The Tribunal noted that the applicant had received assistance from a solicitor and registered migration agent who had not appeared at the Tribunal hearing or made written submissions. The Tribunal agreed to wait until after 29 March 2016 to enable the applicant to make further submissions should she wish to do so after consulting her representative.

19. As at the time of this decision, no further evidence or submissions have been provided to the Tribunal.

    Findings

20. On the basis of the evidence before it, the Tribunal accepts that the applicant has completed work which meets the definition of ‘specified work’ in locations which are specified as ‘regional Australia’, whilst in Australia as the holder of a working holiday visa. The remaining issue for the Tribunal to consider is whether the applicant has completed ‘a total period of at least 3 months’ of such work.

21. The legislation is silent as to how ‘a total period of at least 3 months’ is to be calculated and there is some ambiguity as to how work undertaken on a casual or part time basis should be assessed. The Tribunal has had regard to the Department’s policy on this issue. The Tribunal also notes that the visa criterion in issue has been amended in relation to visa applications made on, or after 1 December 2015, to specify that the total period of work carried out, whether on a full-time, part-time or casual basis, must be or be the equivalent of at least three months of full-time work.

22. The words, ‘a total period’, suggest that it was intended that discrete periods of work could be considered cumulatively and, if they added up to ‘a total period of three months’, the visa criterion would be met. In this context, the Tribunal takes the view that it must have been intended that the reference to “a total period of three months” mean the equivalent of a total period of three months full-time work.

23. In considering what three months full-time work entails, the Tribunal accepts that the duration of a working day in fruit harvesting or the agricultural industry generally may vary from day to day and will be dictated by a range of factors including weather conditions and, in the applicant’s case, the condition of the fruit to be harvested. As such, the Tribunal accepts that a typical working day in this industry may not always be 7 to 8 hours as in other industries. The Tribunal further accepts that the pattern of work may also be dependent on environmental factors. The Tribunal accepts, therefore, that the requisite period should be calculated flexibly and that a period of less than 35 hours may constitute a full working week in the industry in question. 

24. The applicant’s evidence at hearing was that she worked an average of 4 hours per day, 3 to 5 days per week over a period of 17 weeks. This equates to somewhere between 204 and 340 hours of work.

25. The payslips submitted with the visa application indicate that between 3 March 2015 and 4 May 2015, the applicant filled 1702.5 trays of grapes. Working on the basis that it took 5 to 10 minutes to fill a tray of grapes, this equated to approximately 142 to 284 hours of work over 9 weeks. Between 28 April 2015 and 29 June 2015, the applicant filled 65 trays of oranges. Working on the basis that it took 30 minutes to fill a tray, this equated to approximately 32.5 hours of work over 9 weeks. Taking the most generous estimation of time, the applicant completed approximately 316.5 hours of specified work in regional Australia.

26. A 35 hour full-time working week which would be typical of many industries in Australia would equate to around 455 hours of work over three months. The roughly 316.5 hours which the evidence suggests the applicant worked is considerably lower. Even making the allowances referred to above, the Tribunal is not satisfied that 316.5 hours is the equivalent of 3 months’ work in fruit harvesting or the agricultural industry. On this basis, the Tribunal is not satisfied that the applicant carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

27. The Tribunal is not satisfied that the requirements of cl.417.211 are met. As a result, the applicant does not meet the criteria for the grant of the visa.

    DECISION

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

    Rachel Homan

    
    

    Member