Telfer (Migration)

[2017] AATA 266

Telfer (Migration) [2017] AATA 266 (15 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zachary James Telfer

CASE NUMBER:  1619252

DIBP REFERENCE(S):  BCC2016/2686054

MEMBER:K. Chapman

DATE:15 February 2017

PLACE OF DECISION:  Brisbane

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 15 February 2017 at 2:27pm

CATCHWORDS

Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – cl.417.211 – Three months specified work in regional Australia – Harvesting and packing fruit – Collaborative arrangements between several farms – Financial records

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 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 Immigration on 7 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, Mr Zachary Telfer, applied for the visa on 14 August 2016. He is a citizen of Canada. 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 they were not satisfied he completed 3 months of specified work in regional Australia. On 16 November 2016 the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application. The applicant appeared before the Tribunal on 15 February 2017 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant completed 3 months of specified work in regional Australia. The Tribunal observes this is a matter where the applicant submitted limited documentary evidence in support of his visa application to the Department of Immigration and then furnished the Tribunal with more extensive evidence that was unavailable to the primary decision maker.

   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 instrument relevant to the applicant’s circumstances is IMMI 16/041.

7. The applicant gave oral evidence to the Tribunal submitting that he had worked as a fruit picker of strawberry crops in the vicinity of Wamuran in Queensland (postcode 4512) from 9 March to 24 April 2016 and 5 June to 18 August 2016 (noting he only submitted in his visa application that he worked until early August 2016 as he did not have evidence of the later period at that time). He indicated he worked for several farms which had collaborative arrangements during these periods including ‘Strawberry Sue’, ‘Berry Patch Marketing’ and ‘Sommer Fruits’. The applicant told the Tribunal that he worked in excess of 3 months in a full time capacity between March and August 2016, was paid award wages for this work and resided in a guest house at Wamuran. The Tribunal had the benefit of observing the applicant as he gave his oral evidence and has determined he was a credible witness who provided a truthful account of his work history.  

8. The Tribunal had before it a large volume of documentary material submitted by the applicant in support of his contention that he performed 3 months of specified work in regional Australia during the period March to August 2016. The submitted Form 1263 was signed by the respective representatives from ‘Strawberry Sue’, ‘Berry Patch Marketing’ and ‘Sommer Fruits’ indicating the applicant had worked for the necessary period. Pay slips, bank statements and a 2015/16 income tax return confirmed the applicant was in receipt of wages during the relevant times and paid taxation upon those earnings. The applicant assisted the Tribunal by directing it to the appropriate transactions in the bank statements that demonstrated his earnings in respect of fruit picking employment. A letter dated 12 November 2016 from Mr Wim Vermain confirmed the applicant resided in a guest house at Wamuran between March and August 2016, with two letters from co-workers also before the Tribunal confirming the applicant’s work history. Numerous photographs depicting the applicant engaged in work at the Strawberry farms were also before the Tribunal. After careful consideration, the Tribunal accepts the veracity of the aforementioned evidence.

9. The Tribunal finds that the performance of harvesting and packing of fruit in Wamuran, Queensland constitutes specified work in regional Australia for the purposes of the applicable instrument. The Tribunal is satisfied the applicant performed such work on a full time basis for a period greater than 3 months, whilst being remunerated in accordance with the appropriate Australian legislation and awards. The Tribunal is further satisfied the applicant held a Subclass 417 Working Holiday visa whilst performing the aforementioned specified work. Therefore, the applicant satisfies cl.417.211(5) of Schedule 2 to the Regulations.

10. 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

11. 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.

    K. Chapman

    
    

    Member