1514590 (Migration)

[2016] AATA 3496

1514590 (Migration) [2016] AATA 3496 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Louisa Trad

CASE NUMBER:  1514590

DIBP REFERENCE(S): BCC2015/2351134 BCC2015/71447

MEMBER:Tony Caravella

DATE:8 March 2016

PLACE OF DECISION:  Perth

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 08 March 2016 at 11:49am

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 15 October 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 14 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(5).

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 carried out specified work in regional Australia for at least three months as the holder of a working holiday visa.

4. On 3 March 2016, the Tribunal received the following documents from the applicant’s migration agent:

   ·a written submission by the applicant’s agent in which the agent submits the applicant was involved in planting and growing fresh herbs and vegetables on the island where she was working during the period of her first working holiday visa.  It also submits that due to an administrative error, the relevant payslips were incorrect where they referred to the applicant working as a ”casual marine hostess”;

   ·a letter from the resort manager for Koala Adventure Island which submits the applicant was employed in growing fresh herbs and vegetables on the island, and refers to the applicant also having responsibility picking coconuts from “100’s of coconut trees”.  The letter states amongst other things that the payslips were incorrect in certain respects, including in respect of stating that she earned $137 per hour;

   ·a copy of a letter dated 7 November 2015 from Koala Adventure Island stating the applicant was employed from 9 March 2015 to 22 July 2015 in the role of farming in planting vegetables and herbs;

   ·a PAYG payment summary in respect of the applicants work; and

   ·payslips issued to the applicant by Adventure Island Whitsunday.

5. The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent. The applicant’s representative did not attend the hearing.

7. At the hearing, the applicant said that use of the word “gardening” in her application for the second working holiday visa, was not a good choice of word.  She said she was involved in propagating, planting out, watering, checking plant growth, weeding and removal of insects and bugs, and picking the grown herbs and vegetables as well as collecting coconuts.

8. In respect of the reference to being employed as a casual marine hostess, she told the Tribunal that she was never employed in that role. She said she did go out on the boats operated by the resort, but that occurred on three occasions only, and that this occurred in her own time on weekends.  She claimed that she did not work on the boat on those or on any other occasion.

9. She told the Tribunal that she was actually employed at South Mole Island in the Whitsunday Islands.  She described how there were different categories of workers, including crew members, and WWOOFers (Willing Workers On Organic Farms).  She told the Tribunal that she obtained the job after staying on the resort as a backpacker.  She said while staying there is a backpacker she spoke to the resort manager, Maria Candido, and asked her for a job.  She said she was told she could initially work on a trial basis as a volunteer, and that if that was successful she would then be employed.  She said the resort manager understood the nature of the specified work she had to undertake in order to qualify for a second working holiday visa.  She told the Tribunal that she commenced work on 9 March 2015 on a trial basis until being put on as a temporary employee at the end of March 2015. 

10. The applicant told the Tribunal that she worked Monday to Friday starting at 7 in the morning and finishing around 4 PM each day.  She said she had no experience in this kind of work but that the resort manager, and another girl, Lindsay, who was about to leave the island trained her in the job and in the use of tools.

11. The applicant said that there are four garden areas.  She said one was located in front of the kitchen and they grew lemongrass, basil and other herbs there.  The second area was at the back of the kitchen where they grew basil, parsley, and spring onions.  The third section was next to the owner’s house and they grew lettuce, tomatoes, ginger and chillies there. A fourth area was at the back of the resort near the golf course.  She said that while she worked there they built this section up by composting and they planted spring onions and tomatoes there.

12. She described the routine of work was that they would start at 7 AM and their work would be to remove bugs and insects from the seedlings and plants.  This would be done by hand.  She said they would have a break around 10 AM and they would propagate, and tend to the vegetables and herbs and pick the produce.  She said that the vegetables and herbs would be used in preparing food to feed between 30 to 40 people.

13. She described the work routine was that after lunch they would use a wheelbarrow to collect coconuts that had fallen from the coconut trees.  She said they would then open the coconuts and collect the milk which would be used for cooking.  She said a lot of the work also involved clearing palm fronds that had fallen from the coconut and other trees from the golf course, and they would have to regularly water the vegetables and herbs in the afternoon.

14. The Tribunal put it to the applicant that upon initially reading the material she had provided, it appeared that the area under cultivation was not a large one and it had some concern as to whether she was fully employed in cultivating the herbs and vegetables.  She told the Tribunal that her work did engage her full-time and in particular the propagating of seedlings and then transplanting, watering, tending, and then picking the vegetables and herbs, and the other described tasks.  She said she was responsible for the planning and rotation of planting, and that the specified work took up all her time.  She told the Tribunal that when they did not produce enough to feed the guests, when there were large numbers of them, the vegetables and herbs they grew were supplemented by purchased produce.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant meets the requirements specified in cl.417.211(5) of Schedule 2 to the Regulations.

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

17. 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 Working holiday visa - definitions of 'specified work' and 'regional Australia' (item 1225(5)).

18. Having regard to the evidence before the Tribunal, it finds that the applicant was granted her first Subclass 417 Working Holiday visa on 11 March 2014, and that she entered Australia as the holder of that visa on 18 November 2014.  Having regard to the evidence before it, the Tribunal also finds that the applicant was employed by Koala Adventure Island during the period 9 March 2015 to 22 July 2015, that is during the time she was the holder of her first working holiday Subclass 417 visa.  The Tribunal finds this period of time spans a period of some 3 months and 19 days.  The Tribunal finds that the work was conducted within the postcode 4802 which includes the Whitsunday Island.  The Tribunal finds that IMMI 08/048 prescribes this postcode area as being an area that is ‘regional Australia’. 

19. The Tribunal considered the nature of the work performed by the applicant while she was employed by Koala Adventure Island.  It also considered that paragraph 3 of IMMI 08/48 prescribes that ‘specified work’ can include any type of work in:

    (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

20. Having regard to the credible and consistent evidence provided by the applicant at the Tribunal hearing, and in the documents submitted to the Tribunal, the Tribunal accepts that while working in the position, her primary responsibilities were to propagate and plant herbs and vegetables.  It also finds that she was employed in the general maintenance of the crops and in the harvesting of the herbs and vegetables they grew, and the collection of the coconuts.  The Tribunal therefore finds that the applicant carried out ‘specified work’ consistent with the work prescribed in paragraph 3(a) of IMMI 08/048.

21. Having regard to the forgoing, the Tribunal finds 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.  She therefore satisfies cl.417.211(5). 

22. 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

23. 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.

    Tony Caravella

    
    

    Member