Minwegen (Migration)

[2017] AATA 442

Minwegen (Migration) [2017] AATA 442 (9 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alexandra Minwegen

CASE NUMBER:  1619474

DIBP REFERENCE(S):  BCC2016/2846318

MEMBER:Meena Sripathy

DATE:9 March 2017

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 09 March 2017 at 1:46pm

CATCHWORDS

Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – cl.417.211 – Three months specified work in regional Australia – Propagating plants – General beach restoration work – Miscellaneous housekeeping at island resort – Storm recovery – Light construction and repair duties

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)
Migration Regulation 1994, Schedule 2 cl 417.211(5)

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 November 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 27 August 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211 because the delegate was not satisfied that the work completed by the applicant is specified work as defined by the Minister in the Legislative instrument IMMI16/087.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa 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.

   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.

7. ‘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 Working Holiday Visa – Definitions of Specified Work and Regional Australia, IMMI 16/041 commencing on 1 July 2016 and applicable to visa applications made between 1 July 2016 and 19 September 2016.  The Tribunal observes the delegate incorrectly referred to IMMI 16/087 as the relevant instrument, which in fact applies to applications made on or after 16 September 2016.  The only differences between the two instruments, however, appears to be inclusion of several additional postcodes in Western Australia, and so there appears to be no material impact of this error in the current case.

8. In her application for the visa the applicant declared she undertook specified work at Great Keppel Island Hideaway Pty Ltd (ABN 55163815601) from 12 October to 2 November 2015 and from 6 June to 28 August 2016 in the 4700 post code area.   She provided to the Department evidence in support including a Completed Form 1263 Employment Verification Form; completed Specified Work Questionnaire; PAYG tax summary ; bank statements and payslips.

9. The applicant provided the following further evidence to the Tribunal:

   ·Statement from Kelly Harris, Group Manager, Great Keppel island Hideaway confirming that the applicant worked 6 hours a day, 6 days a week from 6 June to 28 August 2016 propagating plants and general beach restoration work, as well as miscellaneous housekeeping and dish washing for 2 hours a week.

   ·Payslips and PAYG payment Summary in respect of that work

   ·Email from Patrick Leclerc of Work n Holiday Pty Ltd who facilitated the applicant’s employment with Great Keppel Island in 2015 and 2016.  He advised the work included storm recovery and general maintenance duties (painting cabins, light construction and repair duties, levelling and landscaping duties) and she worked 35-40 hours a week. 

   ·Copies of her bank statements covering the period of claimed work.

10. The Tribunal has had regard to department policy which provides examples of eligible specified work, including:  landscaping the grounds of a construction/house site, painting the interior/ exterior of new buildings and conservation and environmental restoration work.  While mindful that departmental policy is not binding on the Tribunal, it takes into consideration the inclusion of these examples in its determination of whether the work completed by the applicant comes within the meaning of ‘specified work’ as defined in the relevant instrument.

11. Before the Tribunal the applicant has provided further evidence from her employer describing the work she completed as ‘propagating plants and general beach restoration work’.  Evidence was also provided from the organisation who facilitated her employment, Work n Holiday Pty Ltd stating that the work involved storm recovery and general maintenance duties (painting cabins, light construction and repair duties, levelling and landscaping duties).

12. Having considered the evidence now before it, and the examples included in departmental policy mentioned above, the Tribunal accepts that the work declared by the applicant is capable of coming within the ‘plant and animal cultivation’ and ‘construction’ categories specified in the relevant instrument, and the postcode 4700 declared is included as a specified postcode. 

13. The Tribunal accepts on the evidence of the payslips and PAYG payment summaries that the applicant undertook the equivalent of at least three months (or 88 days) full time work.  It is satisfied on the applicant’s written evidence and supporting letter from the employer that the work was full time and the bank statements submitted shows withdrawals of funds in the vicinity of the claimed employment. 

14. Departmental records before the Tribunal indicate that she arrived in Australia on 1 October 2015 on a subclass 417 visa which was valid until 1 October 2016.   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 and therefore she satisfies cl.417.211(5).   

15. 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

16. 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