1516127 (Migration)

[2016] AATA 4255

1516127 (Migration) [2016] AATA 4255 (12 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jake Steven Manning

CASE NUMBER:  1516127

DIBP REFERENCE(S):  CLF2015/76040

MEMBER:Rachel Homan

DATE:12 August 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 12 August 2016 at 11:17am

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 6 November 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 27 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 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. On 25 July 2016, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to submit additional evidence that he had carried out specified work in regional Australia for a period of at least 3 months. The applicant submitted additional evidence to the Tribunal and, as a consequence, 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 IMMI16/041 (F2016L00757).

7. Relevantly to this case, postcode 2880 is specified as ‘regional Australia’ and specified work includes:

   Plant and animal cultivation:

   A. the harvesting and/or packing of fruit and vegetable crops;

   B. pruning and trimming vines and trees;

   C. general maintenance crop work;

   D. cultivating or propagating plants, fungi or their products or parts;

   E. immediate processing of plant products;

   F. maintaining animals for the purposes of selling them or their bodily produce, including natural increase;
   G. immediate processing of animal products including shearing, butchery, packing and tanning;

   H. 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 is a 20-year-old British citizen. The applicant arrived in Australia as the holder of a subclass 417 working holiday visa on 3 September 2014. The applicant’s first working holiday visa ceased on 3 September 2015.

10. In his visa application, the applicant declared that he had undertaken specified work mainly in the agriculture, forestry and fishing industry in postcode 2880 between 15 May 2015 and 26 August 2015. The applicant provided a residential address in Tibooburra NSW, 2880

11. According to the delegate’s decision, the Department wrote to the applicant on 14 September 2015 requesting that the applicant supply additional evidence of the specified work he claimed to have completed. The applicant was provided with 28 days to supply the information. On 11 October 2015, the applicant provided a Form 1263 and a job description form. An officer of the Department attempted to telephone the applicant’s claimed employer using the phone number provided in the Form 1263. The employer did not answer the phone and employment verification was unable to be made. The delegate noted that the applicant had failed to provide evidence to demonstrate that he had travelled to, resided or worked in postcode 2880 for the duration of the declared specified work.

12. The Form 1263 supplied by the applicant is signed by the applicant’s employer, Geoffrey Dennis Davis. According to the form, the applicant was employed between 15 May 2015 and 26 August 2015 by GD Davis at the Brindiwilpa Station at Tibooburra. The type of work was described as “livestock production”.

13. The job description form states that the applicant worked 5 to 7 days per week for 8 to 9 hours per day. The applicant’s job title was “farmhand”. The applicant’s specific duties were drafting cattle, concreting fences and stays, checking water tanks, pulling down fences, general construction and metal work. The applicant claimed that he lived on the farm in shearers’ quarters.

14. At the time he applied for review, the applicant submitted to the Tribunal a number of photographs, some of which are of the applicant himself, apparently taken in a rural location or farm dating between May and August 2015. The applicant also submitted payslips dated 5 September 2015 and 29 May 2015 and ANZ bank lodgement receipts showing deposits into the applicant’s account by GD Davis corresponding to the same dates. A PAYG summary  for the period 1 July 2015 to 30 September 2015 signed by the applicant’s employer on 30 September 2015 shows gross payments to the applicant in that period in the amount of $2975. The payslips indicate that the applicant was paid a daily rate of $70 per day, from which expenses such as coca cola, tobacco and alcohol were deducted.

15. In response to the Tribunal’s s.359(2) letter, the applicant submitted additional photographs; journal entries reflecting on his time in Tibooburra; a description of the duties the applicant performed at Brindiwilpa Station; proof of purchase of train tickets from Sydney to Dubbo and Dubbo to Broken Hill for travel on 14 May 2015; and bank transaction records for the period 12 May 2015 to 29 August 2015 showing withdrawals and purchases in locations in and around Tibooburra during the period the applicant claims to have undertaken specified work as well as periodic deposits from “GD Davis” totalling $3244.55.

16. When the payment made on 5 September 2015 is added to the payments evidenced in the bank transaction records, it appears that the applicant was paid a total of $4544.55 by GD Davis. It is not possible to extrapolate from the evidence precisely how many days the applicant worked given that expenses were deducted from his $70 daily rate before being paid. The Tribunal is satisfied, however, that the applicant was paid for the equivalent of at least 65 days, which over a 3 month period equates to working 5 days per week.

17. 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’ between 14 May 2015 and at least 29 August 2015. The Tribunal is satisfied on the evidence referred to above that the applicant was employed whilst in that location doing work that was directly related to the maintenance of animals for the purposes of selling them or their bodily produce, which, the Tribunal is satisfied, constitutes ‘specified work’. The Tribunal is satisfied that for at least a three month period the applicant was employed doing such work on a full-time basis. The Tribunal is further satisfied that the applicant was the holder of a Working Holiday visa throughout this period.

18. For the above reasons, the Tribunal is satisfied that the applicant had, at the time he 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). 

19. 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

20. 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.

    Rachel Homan

    
    

    Member