1516939 (Migration)

This matter concerned an application for a Working Holiday (subclass 417) visa, brought before the Tribunal by an applicant who had previously held such a visa. The applicant claimed to have satisfied the requirements for a further visa by undertaking specified work in regional Australia for two employers, Williment Family Trust and Oakes and Sons. The delegate had refused the application, being unsatisfied that the applicant had completed three months of specified work in regional Australia due to a lack of requested evidence.

The central legal issue before the Tribunal was whether the applicant had fulfilled the requirement of carrying out specified work in regional Australia for a total period of at least three months while holding a subclass 417 visa. This involved determining the meaning of "work" as defined in the Regulations, and how to calculate "a total period of at least 3 months," particularly in circumstances where work might have been undertaken on a casual or part-time basis.

The Tribunal considered the definition of "work" as an activity that normally attracts remuneration in Australia. It also had regard to Departmental guidelines suggesting that three months is equivalent to 88 days and that the work should be the equivalent of full-time work. However, the Tribunal noted that the visa criterion itself did not explicitly require work to be conducted on a full-time basis. Based on the evidence provided, including pay summaries and letters from employers, the Tribunal was satisfied that the applicant had completed work meeting the definition of "specified work" in regional Australia while holding the relevant visa. Crucially, the Tribunal found that the applicant had completed work for a period of at least three months, applying the available evidence and considering the Department's policy and the wording of the visa criterion.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant met the criteria under cl.417.211(5) of Schedule 2 to the Regulations.