1516627 (Migration)

[2016] AATA 3528

1516627 (Migration) [2016] AATA 3528 (10 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Manon Daux

CASE NUMBER:  1516627

DIBP REFERENCE(S):  BCC2015/2774673

MEMBER:Nicola Findson

DATE:10 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 10 March 2016 at 2:07pm

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 23 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, who is a 20 year old French national, applied for the visa on 23 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5), because the delegate found that the applicant had not provided any evidence  that she had carried out specified work in regional Australia for a total period of at least 3 months as a holder of a Working Holiday visa.

4. In support of this review application, the applicant has provided the Tribunal with additional information.  Based on that further information, and for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. At the time of application for the visa the subject of this review, the applicant was in Australia as the holder of a Working Holiday subclass 417 visa, which was granted on 4 August 2014 and ceased on 1 October 2015.  The applicant entered Australia as the holder of that visa on 1 October 2014.

6. The issue in this case is whether the Tribunal is satisfied, on the evidence before it, that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa.

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

7. 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.

8. 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.  Departmental policy also instructs that the work should be the equivalent of full time work for that employer, that region and that industry.

9. The delegate was not satisfied that the applicant had completed the prescribed period of specified work because the applicant had not, at the time of the delegate’s decision, provided relevant information requested by the delegate.  Specifically, on 22 October 2015, the Department asked the applicant to provide further evidence of having completed specified work while holding her prior Working Holiday visa, including:  Employment Verification Form 1263; bank statements covering the period of specified work; job description; payslips, group certificates or tax returns; bus tickets, accommodation or general receipts in the applicant’s name; and employer references on official letterhead.  The applicant was given 28 days to provide that information, which was not received at the date of the delegate’s decision.

10. The applicant has provided the Tribunal with much of the information that the Department had requested in its letter of 22 October 2015, including a completed Form 1263, group certificate and an employer reference on official letterhead for the specified work she claims to have undertaken. 

11. The applicant claims to have worked as a “stud hand” at Yarradale Stud (ABN: 48651271938), a thoroughbred racehorse breeding facility located at Gidgegannup, Western Australia, postcode 6083, between 10 December 2014 and 5 June 2015. The applicant claims that during this period she worked on a full time basis, from Monday through to Sunday, with 3 days off every 2 weeks.  The applicant claims that she worked about 8 hours each week day and 4 hours on weekends and public holidays.  The applicant, on her evidence worked 136 days with this employer.  This employment was confirmed in writing by the employer.  A PAYG certificate was also provided by the employer evidencing the work undertaken by the applicant.  

12. In addition to the work undertaken at Yarradale Stud, the applicant claims to have carried out  25 days of “apple thinning” work between 10 November 2014 and 8 December 2014 for Mr John Hearman, at Donnybrook, Western Australia, postcode 6239.  An internet search verifies that Mr Hearman is an apple grower in Donnybrook.  Additionally, he signed the form 1263 attesting that the applicant had worked for him for 25 days.

13. Subsection 360(2) of the Act provides that if, in the course of reviewing the material before it, the Tribunal comes to a conclusion that the review may be decided in the applicant’s favour without a hearing, then the Tribunal does not have an obligation to invite the applicant to appear before it.  In this case, after examining all the evidence before it, the Tribunal considered it should decide the review in favour of the applicant.  The Tribunal therefore, decided not to conduct a hearing in this case.

14. The Tribunal accepts the evidence provided by the applicant, and confirmed by both of the employers, and finds that the applicant undertook at least 3 months of “specified work” as contemplated by Immi 08/048 paragraph  3(a) for these employers; at postcodes within “regional Australia” as contemplated by that instrument; and that it was undertaken while the applicant held her last Working Holiday visa.

15. Therefore, the applicant satisfies cl.417.211(5).

16. 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

17. 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.

    Nicola Findson

    
    

    Member