1516939 (Migration)

[2016] AATA 4335

1516939 (Migration) [2016] AATA 4335 (5 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HARRISON OLIVER SQUIRE

CASE NUMBER:  1516939

DIBP REFERENCE(S):  BCC2015/2576280 CLF2015/80379

MEMBER:Tania Flood

DATE:5 September 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 05 September 2016 at 2:36pm

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 25 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 4 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. 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 provided evidence that verified he had completed three months of specified full-time work in regional Australia.  

4. On 22 August 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.

   APPLICABLE LAW

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 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 Queensland postcodes 4307 to 4499 and 4522 to 4899.  ‘Specified work’ includes:

   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, Department 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 cl417.211 does not on its face require 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant was granted a working holiday (subclass 417) visa on 6 June 2014 and entered Australia on 9 September 2014.  His visa ceased on 7 October 2015.

10. On 4 September 2015 the applicant applied for a further working holiday visa.  He claimed that he had satisfied the requirements for a further visa as he had carried out specified work in regional Australia for Williment Family Trust and Oakes and Sons.

11. In the decision record the delegate stated that he was not satisfied that the applicant had completed three months specified work in regional Australia because he did not provide the evidence which was requested of him on 28 September 2015.

12. The applicant provided the following documents to the Tribunal:

    ·A letter dated 8 December 2015 with attached pay summary from Williment Family Trust indicating the applicant worked 505 hours in the period from November 2014 to February 2015.

    ·An email dated 2 September 2016 which provides his job title and description of duties with Williment Family Trust; his job title and description of duties with Oakes and Sons and advice he worked a minimum of 4 days per week and 8 hours per day for Oakes and Sons.  Attached to this email is a letter from Oakes and Sons which confirms the applicant was employed by Oakes and Sons from 24 June 2015 to 3 September 2015 as a farm worker.

    FINDINGS

13. The issue in this case is whether the applicant has satisfied the requirement that he has carried out specified work in regional Australia for a total period of three months whilst the holder of a working holiday (subclass 417) visa.

14. On the basis of the evidence before it, the Tribunal accepts the applicant has completed work which meets the definition of ‘specified work’ in locations which are specified as ‘regional Australia’, whilst in Australia as the holder of a working holiday visa.  The remaining issue for the Tribunal to consider is whether the applicant has completed ‘a total period of at least 3 months’ of such work.

15. The legislation is silent as to how ‘a total period of at least 3 months’ is to be calculated and there is some ambiguity as to how work undertaken on a casual or part time basis should be assessed.  The Tribunal has had regard to the Department’s policy on this issue.  The Tribunal also notes that the visa criterion in issue has been amended in relation to visa applications made on, or after 1 December 2015, to specify that the total period of work carried out, whether on a full-time, part-time or casual basis must be or be the equivalent of at least three months of full-time work.

16. The words ‘a total period’, suggest that it was intended that discrete periods of work could be considered cumulatively and, if they added up to ‘a total period of three months’, the visa criterion would be met.  In this context, the Tribunal takes the view that it must have been intended that the reference to ‘a total of three months’ mean the equivalent of a total period of three months full-time work.

17. In considering what three months full-time work entails, the Tribunal understands that the duration of a working day in the agricultural industry generally may vary from day to day and will be dictated by a range of factors including weather conditions.  As such, the Tribunal accepts that a typical working day in this industry may not always be 7 to 8 hours as in other industries.  The Tribunal further accepts that the pattern of work may also be dependent on a range of factors including environmental factors.  The Tribunal is satisfied, therefore that the requisite period should be calculated flexibly with this mind.

18. The information before the Tribunal indicates that the applicant was employed over a total of approximately six months from 1 November 2014 to 17 February 2015 and 24 June 2015 to 3 September 2015 at his two employers. 

19. The information before the Tribunal from Williment Family Trust indicates that the applicant worked a total of 505 hours over a period of 15 weeks, earning a gross amount of $8,997.

20. The information before the Tribunal from Oakes and Sons and the applicant indicates that he worked for a total of 10 weeks working approximately 8 hours per day, 4 days per week (320 hours in total).  PAYG payment summaries for this period indicate the applicant received gross payments of $7,750 for this work.

21. The Tribunal is satisfied that the evidence before it indicates the applicant has worked a total of approximately 825 hours over a six month period.

22. A standard 35 hour full time working week which is typical in many industries in Australia would equate to around 455 hours of work over three months.  The Tribunal is therefore satisfied the applicant has worked a total of at least three months.

23. On this basis, the Tribunal is satisfied that the applicant carried out specified work in regional Australia for a period of at least 3 months as the holder of a Working Holiday visa and the requirements of c.417.211 are met.

    DECISION

24. 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.

    Tania Flood

    
    

    Member