1513630 (Migration)

[2016] AATA 3360

1513630 (Migration) [2016] AATA 3360 (1 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Shani Klara Pronkhorst

CASE NUMBER:  1513630

DIBP REFERENCE(S):  BCC2015/1566287 CLF2015/63881

MEMBER:Melissa McAdam

DATE:1 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 01 March 2016 at 11:34am

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 18 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 1 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 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. In conducting the review, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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?

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 the “Entire Territory” of the Northern Territory and ‘specified work’ includes plant and animal cultivation, specifically:

   (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.

9. The applicant in this case is a 26 year old dual national of Israel and the Netherlands, who arrived in Australia as the holder of a subclass 417 Working Holiday visa on 13 June 2014.

10. In the present application for a second Working Holiday visa, the applicant claimed to have 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 of having undertaken specified work in regional Australia for a total of three months. The applicant stated that she undertook specified work at Ringwood Station, near Alice Springs in the Northern Territory, between 4 March 2015 and 1 June 2015.

11. On 4 June 2015, the Department wrote to the applicant requesting evidence of her employment in Australia. The applicant was requested to provide the evidence within 28 days. On 15 July 2015 the applicant submitted a job description form and a letter from the Commonwealth Bank confirming the applicant’s Bank Account details. She did not provide a requested Bank Statement.

12. On or about 18 September 2015 the applicant submitted copies of her two payslips from her employer at Ringwood Station to the Department. These payslips show that the applicant was paid for seven units of work in the period 1 March 2015 to 22 May 2015 earning $3,836.00 gross with a net payment of $3,500; and that she was paid for four units of work in the period 5 May 2015 to 2 June 2015 earning $2,192 gross with a net payment of $2,000. Her employment status is described in both payslips as “Full Time”.

13. In her job description form the applicant described her job title as ‘Station hand’ and her specific duties as ‘cleaning, cooking, feeding animals, gardening’. According to case notes on the Department’s file the Department contacted the applicant’s employer at Ringwood station to confirm the applicant’s employment information.  In an email entitled “Employer email” from a ‘ringwoodstation’ email address it is written that the applicant worked for K G Kimlin Ringwood Station from 4 March to 1 June 2015; that she was employed full time; that her duties included cleaning, feeding the animals (hens and poddy calves) and cooking the evening meal; that she was not charged for food and board; and that she was paid by EFT into her bank account.

14. On 8 October 2015 the applicant submitted copies of her Bank Statement to the Tribunal which record a deposit on 20 April 2015 of $3,500 paid in by direct credit from ‘KGKimliCamp’ and another deposit on 3 June 2015 of $2,000 paid in by direct credit from ‘KGKimliCamp’.

15. On the basis of the evidence before it the Tribunal is satisfied that the applicant was physically present in a location specified as regional Australia for a period totalling at least three months whilst the holder of a Working Holiday visa. The Tribunal is further satisfied that the applicant was employed on equivalent to a full-time basis whilst in this location during the period, doing ‘work’ which involved maintaining animals for the purpose of selling them or their bodily produce; and cultivating or propagating plants, fungi or their products or parts.

16. The Tribunal is satisfied that this work constituted ‘specified work’.

17. 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). 

18. 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

19. 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.

    Melissa McAdam

    
    

    Member