1516548 (Migration)

[2016] AATA 3223

1516548 (Migration) [2016] AATA 3223 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Romain Richard Anne

CASE NUMBER:  1516548

DIBP REFERENCE(S):  BCC2015/2718769 CLF2015/78491

MEMBER:Jane Bishop

DATE:8 February 2016

PLACE OF DECISION:  Brisbane

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 February 2016 at 10:05am

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 12 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 17 September 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant had carried out specified work in regional Australia for at least 3 months prior to making the application under review.

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

1. 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.

2. The applicable instrument is IMMI 08/048 Working holiday visa - definitions of 'specified work' and 'regional Australia' (item 1225(5)).

3. IMMI08/048 defines ‘regional Australia’ as including the areas in postcodes listed in the Schedule to the instrument, which relevantly includes New South Wales’ postcodes 2420 to 2490.

4. In his visa application the applicant stated that he had performed specified work (vegetable picking, farm labouring and construction) for 3 months prior to the application.

5. The Department wrote to the applicant on 17 September 2015 providing details of the type of evidence he was required to submit and allowing him 28 days from receipt of the letter to provide that evidence. The applicant provided the requested evidence on 4 October 2015. On 12 November 2015 the delegate refused the application.

10.  On the Department’s file there is a Form 1263 signed by three employers. Matthew Jamieson indicated the applicant worked picking vegetables and construction for Sunforest in postcode 2479 for the period 6 February 2015 to 22 April 2015. He indicated that the applicant worked 63 actual days. In an attachment to the Form 1263 the applicant indicated that he worked between four and six hours per day between six and five days a week. Gareth Devenish indicated the applicant worked doing landscape construction for Organictreeoh in postcode 2483 for the period 23 April 2015 to 23 May 2015. He indicated that the applicant worked 27 actual days. In an attachment to the Form 1263 the applicant indicated that he worked between four and six hours per day six days a week.  Lyanne Compton indicated that the applicant worked clearing bush and digging trenches for Mevlana in postcode 2481 for the period 15 June 2015 to 15 July 2015. She indicated that the applicant worked 22 actual days. In an attachment to the Form 1263 the applicant indicated that he worked between four and five hours per day five days a week.

11.  The Tribunal is satisfied that the applicant performed specified work referred to in the instrument and that work was carried out in postcode 2479 and 2481, which is located in regional Australia as defined in the relevant instrument.

12.  Under the Department’s policy in the relevant Procedures Advice Manual (PAM3), three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year. One full day of work is defined as having worked the minimum number of hours considered a standard day by the particular industry in which the applicant is employed. Generally, the Australian working week is 35 to 40 hours, consisting of 7 to 8 hours of work each day. Individual employers can not set a smaller period of time than the industry standard to satisfy the specified work requirement. In the present case the delegate refused the visa application because the applicant had not worked the general standard work day - seven to eight hours - for the agriculture industry.

13.  The applicant indicated that he worked 122 days from 6 February 2015 to 15 July 2015 for between four and six hours per day. His bank statements indicated that he was in the area from January 2015 to June 2015.

14.  Clause 417.211 does not on its face require the work to be done on a full time basis. Likewise 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. In the view of the Tribunal requiring the applicant to work on a full-time basis goes beyond the requirements of the legislation. That being so the Tribunal finds that the applicant has worked 88 days as indicated in the 1263 Forms.

15.  The Department movement records indicate that the work was carried out at a time when the applicant was the holder of a Class TZ-417 ‘working holiday’ visa, as defined in cl.417.111 and that the applicant entered Australia as the holder of that visa.

16.  The Tribunal therefore finds therefore that the applicant satisfies cl.417.211(5). 

17.  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

18.  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.

Jane Bishop
Member