Portes (Migration)

[2022] AATA 1635

Portes (Migration) [2022] AATA 1635 (25 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shana Yasmine Portes

CASE NUMBER:  2112547

HOME AFFAIRS REFERENCE:               BCC2020/1806464

MEMBER:Rosa Gagliardi

DATE:25 March 2022

PLACE OF DECISION:  Australian Capital Territory

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 25 March 2022 at 1:56pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – applicant has directly been involved in maintaining animals for the purposes of selling them or their bodily produce –evidence provided regarding specified regional work– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 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 6 September 2021 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 June 2020. 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 (Cth) (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)(a) because it was considered that the applicant had not carried out a period or periods of specified work in regional Australia as the holder of her initial Working Holiday visa.

4. The applicant appeared before the Tribunal on 22 March 2022 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(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.

   cl.417.211(5)
   417.211
   …..
   (5) If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:
   (a) the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa; and
   (b) the total period of work carried out is at least 3 months; and
   (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

7. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose in sub-item 1225(5) of Schedule 1.  A list of specified work definitions are found in Legislative Instrument LIN 20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work.

8. In her application for her second Working Holiday visa, the applicant declared she had undertaken specified work with “Universal Stables (ABN: 67402935565)” from 12 January 2020 to 23 May 2020 in the regional postcode area 4307.

9. LIN 20/20/103 defines specified work as plant and animal cultivation, fishing and pearling, tree farming and felling, mining, construction and bushfire recovery work.  The applicant has advised in the application that her duties were “groom and stable hand” which is supported by the Employer Verification that states the type of work as ‘Groom for Show Horses’. 

10. The relevant section of the Legislative Instrument states:

    3 Plant and animal cultivation
    ….
    (f) maintaining animals for the purposes of selling them or their bodily produce, including natural increase;
    (g) immediate processing of animal products including sharing, butchery, packing and tanning, and not including secondary processing;…

11. The decision at primary review considered “Given the employer, while it is noted prepares horses for sale for their owners, neither maintains animals for the purpose of selling them or for the immediate processing of animal products, I find the work completed does not meet the definition of specified work.  Therefore, I am not satisfied that the applicant has carried out a period or periods of specified work”.

12. This approach would indicate that the legislative instrument intended that the business for whom the visa holder worked, had to sell horses directly in an open market.  Having regard to Universal Stables Website it refers to the preparation and maintenance of horses to assist owners sell their horses.[1]  The Department, therefore, read down the instrument narrowly to involve a business having a significant or exclusively direct selling dimension.  The Tribunal considers that such a reading is not made clear in the instrument – the Tribunal has not been able to find an indication that sales must be done directly to market and finds such an interpretation unfairly restrictive. 

    [1] Universal Stables, accessed on 25 March 2022.

13. Even if the Tribunal were to take the approach of the Department, at hearing the applicant argued that Universal Stables did sell horses after they were rehabilitated, for example, and that this activity was a major source of income for the business.  Essentially, the stables would purchase run down ex-racing horses at a low price and would condition them to on-sell for a profit. 

14. The Tribunal has also taken into account that consistent with the applicant’s evidence, her employer, the Director of Universal Stables, has provided a letter, dated 1 December 2021, stating that the applicant had been employed at the stables between 12 January 2020, and between 25 May 2020 and 15 March 2021.  The Director also set out the applicant’s tasks and responsibilities as:

    -    Daily feeding, checking water and rugging as required

    -    Handling of young stock, broodmares & stallions

    -    Monitoring horses for nutritional and medical reasons (inc. but not limited to breading

    -    Helping to show horses for sale to clients (Tribunal emphasis)

    -    Cleaning boxes and yards as well as keeping the barn and stables tidy and clean

    -    General farm maintenance (such as fencing maintenance, putting out round bales).

15. The Director of Universal Stables also wrote, “Considering that most mares won’t immediately show signs of a regular reproductive cycle, we try to increase their fecundity potentials by providing the adequate environment, diet and living condition to them”.  As such, consistent with the applicant’s claims at hearing, the business of Universal Stables is involved in natural increase (the difference between the number of births compared to deaths within any certain period).  The applicant stated that she prepared broodmares and created optimal conditions to ensure prospects of breeding for the racing industry were maximised.

16. Having considered the evidence as whole, the Tribunal considers that the applicant has directly been involved in maintaining animals for the purposes of selling them or their bodily produce, including natural increase, and therefore the applicant meets cl.417.211(5)(a). 

17. The Tribunal has also had regard to whether the applicant meets cl.417.211(5)(b), being whether the total period of the work carried out is at least 3 months; and cl.417.211(5)(c), whether the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.  As the applicant worked at Universal Stables from

    
    

    12 January 2020 to 25 May 2020, being for over 3 months, she also meets the requirements of cl.417.211(5)(b).  In terms of appropriate remuneration with relevant Australian legislation and awards, the evidence would point to that being the case.  As such the applicant also meets cl.417.211(5)(c).

18. Therefore, the applicant satisfies cl.417.211(5).

    Conclusion

19. 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

20. 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.

    Rosa Gagliardi

    
    

    Member