Lynch (Migration)

[2020] AATA 5790

Lynch (Migration) [2020] AATA 5790 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dane James Lynch

CASE NUMBER:  1926933

HOME AFFAIRS REFERENCE(S):          BCC2019/3820648

MEMBER:Hugh Sanderson

DATE:7 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 7 October 2020 at 1:15pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – period of work was 40 days – period of three months full time work requirement not met – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 417.111, 417.211

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 Home Affairs on 13 September 2019 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 1 August 2019. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5)(b) because the delegate was not satisfied that the applicant had worked for a minimum period of three months when he last held a Working Holiday visa.

   Background

4. The applicant is a citizen of Britain and is currently 25 years old. He first entered Australia holding a Subclass 417 Working Holiday visa on 25 October 2018. He departed Australia on 16 September 2019, returning on 24 September 2019.

5. In his application, the applicant stated that he had worked as a farm hand for Spiteri Farming Co from 12 March 2019 to 8 May 2019 (26 days) and as a banana cutter for Fada Pty Ltd from 13 May 2019 to 18 June 2019 (14 days).

6. The delegate who considered the application found that the applicant had only worked 40 days in regional Australia. As the minimum amount of time to work three months was 88 days, the delegate found that the applicant did not meet the criteria in cl.417.211(5)(b) and refused the application.

   Information to the Tribunal

7. The applicant provided a statement to the Tribunal claiming as follows:

   In February 2019, I made contact with John Friel, owner of the Walkabout Backpackers Hostel in Innisfail, Queensland to query about completing my regional work for my second year Working Holiday visa.

   John Friel advised me that he had positions available on banana farms in Innisfail. John Friel advised that there was limited work available on farms in Innisfail, with most farmers only having work available 2-3 days a week.

   John Friel and manager Samantha Ketchen claimed that due to the limited work in Innisfail, an agreement had been made allowing backpackers to complete their regional work for their second year Working Holiday visa without reaching the full 88 days, therefore attracting backpackers to the Innisfail area to assist local farmers. John Friel claimed this agreement was in place as without it, the farmers of Innisfail would not be able to attract backpackers to their region, resulting in the lack of workers and the lack of produce. Evidence of this can be seen in Annexture 1, with a message from Walkabout Backpackers Hostel manager, Samantha Ketchen, confirming this. Evidence is also seen in Annexture 2 from a review found on Google.

   According to owner John Friel and manager Samantha Ketchen, this agreement meant that a backpacker would be able to retrieve their second year Working Holiday visa without working their full 88 days, and could instead be sought by completing consecutive work over a three month period (approx. 13-14 weeks), regardless of the days completed. John Friel reported that there were conditions to this agreement, one being the individual needed to work all of the hours offered to them by their farmer, and the other condition being that the individual needed to work date to date over the three months (e.g. 1^st April to 1^st July).

   In March 2020, a fellow backpacker contacted Home Affairs for advice, and it was reportedly confirmed that a second year Working Holiday Visa could be granted under 88 days as long as three months of consecutive regional work was completed.

   I have completed over the recommended 14 weeks of regional work, with a total of 15 weeks from 8/3 to 21/6. Please refer to Annexture 3 - Annexture 26. I worked all of the available hours which were offered to me by my farmer, compliant with the condition mentioned above in paragraph 4.

   Walkabout Backpacker Hostel housed 120 backpackers at a time, all of whom did three months of regional work at 2-3 days per week and none completing their full 88 days. To my knowledge, all of these backpackers were granted their second year of their Working Holiday visa. Please refer to the Annexture 27 to Annexture 43 as further evidence.

   I also refer to Annexture 54 - Annexture 68, where a fellow backpacker completed her 3 months of consecutive regional work, although only totalling to 50 days. This individual had her application investigated by Immigration as seen in Annexture 44 - Annexture 53. This individual was still granted her second year of her Working Holiday visa after the investigation had been completed. Therefore, allowing me to believe that this agreement is in fact in place.

8. The applicant appeared before the Tribunal on 6 October 2020 to give evidence and present arguments.

9. The applicant confirmed that he had only worked the equivalent of 26 days for one employer and 14 days for a second employer. He confirmed that this was over a 15 week period.

10. The Tribunal noted that despite its best efforts, it could find no information from the Department which indicated that there was any special arrangement with various regions within Australia which meant that an applicant only needed to be employed for 14 weeks and not to do the equivalent of three months full-time work. Further, the Tribunal noted that as it is required to apply the relevant legislation and is not bound by any Departmental policy there was nothing in the legislation which would indicate that the applicant would meet the requirements for the grant of the visa based on his only working for 40 days.

11. The applicant confirmed that he believed he had been provided false information by the person who was organising his work and accommodation over this period. He said that he believed other people who had been staying at his accommodation had also only worked part time over a 15 week period and yet they had been granted a second Working Holiday visa. The applicant said that he was hoping to be able to apply for a skilled visa based on his work in the construction industry and that if his visa was refused this may make it impossible for him to do so onshore. The applicant acknowledged that he did not meet the criteria for the grant of the visa based on the poor advice he had received from other people.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant worked the required period when he first held a Working Holiday visa.

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

14. Clause 417.211(5) requires 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 Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘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 17/018.

15. The basis upon which the Department refused the visa application was that it was not satisfied the applicant had carried out work in regional Australia with the total period of the work carried out being at least three months. The applicant has acknowledged that he only worked total of 40 days in the Innisfail region packing bananas. The applicant claims that he was provided false information that, due to the particular circumstances of that region, he did not have to work full-time, but only needed to work a total period of 15 weeks part-time two or three days each week as required.

16. The Tribunal is required to apply the legislation. There is nothing in the legislation that provides that if a person is in a specific region they do not need to comply with the requirement that the total period of work carried out is at least three months. It appears the applicant was provided false information by people he was relying on. This does not, however, mean that the Tribunal can find that he meets the criteria for the grant of the visa.

17. As the applicant worked only two or three days each week over the 15 weeks while he was employed by two separate companies, he does not meet the requirement that the total period of the work carried out is at least three months. His total period of work was 40 days. Accordingly, he does not satisfy the requirements in cl.417.211(5)(2)(b).

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

    DECISION

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

    Hugh Sanderson

    
    

    Member