De Stael Von Holstein (Migration)

[2017] AATA 948

De Stael Von Holstein (Migration) [2017] AATA 948 (8 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vincent Pierre De Stael Von Holstein

CASE NUMBER:  1618081

DIBP REFERENCE:  BCC2016/2453391

MEMBER:Rosa Gagliardi

DATE:8 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 08 June 2017 at 1:24pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Specified work in regional Australia for 88 days – Harvesting and agricultural work for various employers – Total period of work carried out – 38 hour week under Horticulture Award – Not equivalent to 88 days

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 417.211, r 1.03

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 October 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 24 July 2016. 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 it was considered that the applicant had not undertaken specified work in regional Australia for 88 days.

4. The applicant appeared before the Tribunal on 2 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 (whether on a full-time, part-time or casual basis) for a total period or periods equivalent to at least 3 months’ full-time work, as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015. ‘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. 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 (F2008L02264). 

8. Relevant to this case, the applicant has claimed that he undertook specified work (harvesting and agricultural work) as follows:

   ·Australian Fresh Salads Pty Ltd from 22 June 2016 to 23 July 2016 in the regional postcode area of 4671;

   ·FS Peacock from 8 March 2016 to 24 April 2016 in the 7175 regional postcode area;

   ·Bream Creek Vineyard from 3 March 2016 to 21 April 2016 in the 7175 regional postcode area; and

   ·G.A Dinc & Z Karacam from 23 May 2016 to 15 June 2016 in the 4670 regional postcode area. 

9. The supporting Form 1263 job description confirms the above work period.

10. Australian Fresh Salads has declared the applicant worked in the horticultural sphere for 31 days; with FS Peacock for 23 days; with Bream Creek Vineyard for 9 days; and for Dinc & Karacam for 28 days.  This would in theory mean the applicant worked for 91 days.

11. The Tribunal accepts that the applicant undertook specified work in regional Australia as that term is defined in IMMI 08/048.  The Tribunal, therefore finds that the applicant carried out the requisite specified work in regional Australia and that cl.417.211(5)(a) is satisfied.

    Issue in this case

12. The issue in this case is whether the total period of work carried out was at least, or equivalent to, 3 months full-time work. 

13. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.

14. The expression ‘3 months’ is not defined in the Regulations, however Departmental guidelines (PAM 3) suggest 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.

15. Under the Horticulture Award a week is comprised of 38 hours for a full-time employee. 

16. At the time of application, the applicant submitted very little to demonstrate that he had, from the hours worked, made up the relevant 88 hours.  Hence while he may have worked over 3 months, he was unable to show that the work he carried out equated to 88 days. 

17. The Tribunal provided the applicant with the opportunity to provide further evidence to demonstrate how he had made up the requisite 88 days over 3 months.  He has now provided payslips and the hours worked for the entire period he worked in Australia over March, April, May, June and July. 

18. The Tribunal has calculated on the basis of the new information submitted that the applicant has worked the equivalent of around 70.37 days.  The Tribunal has, for the purposes of this review attempted to apply a generous reading of the meaning of a “day” in terms of the hours worked per week, however, the maximum the Tribunal could, applying a beneficial view of the information submitted, is 70.37 days for the applicant.

19. The Tribunal has calculated that on a 38 hour week basis, comprised a working week as 7 days and that the working day would have comprised 5.4 hours.  In all the number of hours worked was calculated by the Tribunal at 380 hours.  On this analysis, divided by 5.4, 380 hours equals 70.37 and does not equate to 88 days as required.  Indeed the payslips submitted show that barring on one occasion, the applicant did not actually work a 38 hour week, although some came close.

20. As put to the applicant at hearing it was for him to make his case that he had worked for 88 days as required under the guidelines. 

21. The Tribunal appreciates that the applicant may be disappointed with this outcome but in being granted a Working Holiday visa it is incumbent upon the applicant to maintain 88 days if they wish to pursue a second Working Holiday visa. 

22. As the Tribunal is not satisfied that the applicant has completed at least 3 months of specified regional work, the Tribunal is not satisfied that the applicant meets cl.417.211(5)(b).  In turn, the applicant does not satisfy cl.417.211(5) as a whole. 

23. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Rosa Gagliardi

    
    

    Member