1604249 (Migration)

[2016] AATA 4718

1604249 (Migration) [2016] AATA 4718 (28 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jonathan Pomerleau

CASE NUMBER:  1604249

DIBP REFERENCE(S):  BCC2015/3003505 CLF2016/20757

MEMBER:Meena Sripathy

DATE:28 November 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 28 November 2016 at 4:57pm

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 11 February 2016 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 14 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 delegate was not satisfied on the evidence provided that he had completed 3 months specified work in regional Australia.

4. The applicant appeared before the Tribunal by telephone on 28 November 2016 to give evidence and present arguments.

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, among 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

7. In his application for the visa the applicant declared he undertook specified work with Tara Bendeich from 14 July 2015 to 11 October 2015 in the 4802 postcode area. He claimed he worked as a farmhand, in exchange for accommodation and meals. He indicated he worked 4 hour days, 5 days a week. 

8. Applying departmental policy, the delegate was not satisfied that this constituted full time work, on the basis that policy indicates one full day of work consists of 7-8 hours of work each day. 

9. The Tribunal observes that guidelines provided in the Procedure Advice Manual (PAM) suggest a 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, and that Generally, the Australian working week is 35 to 40 hours, consisting of 7 to 8 hours of work each day; it also states In calculating the period of time for which the applicant has undertaken specified work, the type of employment relationship the applicant may have with their employer, including full/part time employment, casual employment or voluntary employment, is not as important as whether the relevant industry considers the period of work completed to be equivalent to full time work for that industry. …If the employer is satisfied that the applicant has undertaken the equivalent of full time work for that industry for the specified period, the visa decision maker may be satisfied that the applicant has undertaken full time work for the specified period.[1] While the Tribunal is not bound to apply Department policy, it is appropriate to have regard to it. 

   [1] >

   In his arguments to the Tribunal the applicant pointed out that the WWOOF website indicates that WWOOFing involves the exchange of 4-6 hours work per day for meals and accommodation[2] and on this basis he believed that he had engaged in the equivalent of full time work for that industry. He submitted that information on the Department’s website and forms did not make it clear that he had to do 38-40 hours per week to meet the requirements. The applicant gave evidence of the nature of work performed and hours he worked.  He reiterated that he worked around 4 hours a day, understanding this to be acceptable for the required purpose. The Tribunal appreciates that the applicant has been consistent and candid in his evidence about this matter and has not exaggerated or sought to change his evidence, and on this basis it finds him to be an honest and credible witness. He also emphasised that he did not just stay in this regional area for the purposes of meeting the specified work requirement, but has lived and worked here for the past two years and would like to stay on, and potentially apply for a further visa.

   [2] >

   Having considered the evidence and arguments, the Tribunal accepts that the work declared by the applicant comes within the ‘plant and animal cultivation’ category specified in the relevant instrument, and the postcode 4802 declared is included as a specified postcode. Having considered the applicant’s arguments regarding the industry standard in the context of WWOOFing, together with guidelines provided in departmental policy, the Tribunal is prepared to accept in this case that the applicant undertook the equivalent of three months full time work. It is satisfied on the basis of his oral evidence and arguments regarding whether he completed the equivalent of full time work, together with the Employment verification form and letter from the employer, receipts and correspondence and statutory declarations from friends and associates support his claims that he undertook the declared work and place him in the vicinity of the declared work in the relevant period. As his work was undertaken prior to 1 December 2015, it did not have to be paid work. 

10. Departmental records before the Tribunal indicate that he arrived in Australia on 1 November 2014 on a subclass 417 visa which was valid until 1 November 2015.  Therefore on the evidence before it, the Tribunal accepts the applicant 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). 

11. 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

12. 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.

    Meena Sripathy

    
    

    Member