Walsh (Migration)

[2020] AATA 3871

Walsh (Migration) [2020] AATA 3871 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aiden WALSH

CASE NUMBER:  1934766

HOME AFFAIRS REFERENCE(S):          BCC2019/4072035

MEMBER:Nathan Goetz

DATE:17 September 2020

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)(a) of Schedule 2 to the Regulations.

Statement made on 17 September 2020 at 4:36pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – no further information about job tasks provided to department – letter from employer provided to tribunal – job tasks fall within specification – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 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 16 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. On 21 November 2019 the delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221. This clause requires certain criteria to be satisfied at the time of decision.  Relevant to this case is cl.417.211(5)(a). This requires that the applicant carry out a period or periods of specified work in regional Australia as the visa holder.

4. On 9 December 2019 the applicant applied to the Tribunal for a review of the refusal decision.

5. Under s.360(1) of the Act, the Tribunal must invite the applicant to appear at the Tribunal to give evidence and present arguments in relation to the decision under review. However, s.360(2) allows the Tribunal to not invite the applicant to appear if the Tribunal is able to decide the review in the applicant’s favour on the basis of the material it has.

6. The Tribunal has decided that it can determine that review in the applicant’s favour.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant carried out ‘specified work’ in regional Australia?

7. 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: Working Holiday Visa – Specified Work and Regional Australia.

8. As made clear in the delegate decision, the delegate was not satisfied that the applicant met cl.417.211(5)(a). As a result of this, the applicant was unable to satisfy cl.417.211(5) and this meant that he could not satisfy cl.417.221. The decision notes the following:

9. The applicant declared that they undertook specified work with Pines Veterinary Clinic Pty Ltd ABN 29083169902 from 1 April 2019 to 19 July 2019 in the 2575 regional postcode.

10. In their application, the applicant indicated the industry type as ‘Agriculture, Forestry and Fishing’, the sub-group’ as ‘other’ and described their duties as ‘stable hand.’

11. The applicant submitted the following evidence in support of their visa application:

    ·Copy of passport bio-data page

    ·17 electronic payment screenshots from Silver Pines Vet

    ·2 identical PAYG payment summaries for the year ending 30 June 2019

    ·10 Payslips from Silver Pines

    ·2 ANZ Bank electronic proof of account balances

12. The delegate noted that the relevant part of IMMI 17/018 that deals with animals is 2(f) as follows:

    ‘Maintaining animals for the purpose of selling them or their bodily produce, including natural increase:’

13. The delegate considered all the information and evidence provided by the applicant and found that the employment was in respect of an animal hospital providing equine medicine and surgery for horses. As no evidence had been supplied that showed the employer maintains animals for the purpose of selling them or their bodily produce, including natural increase, the delegate was not satisfied that the work completed fell within the definition of specified work as prescribed in IMMI 17/018.

14. Upon a search of the department file, it appears that the delegate had requested more information from the applicant about his duties and none was provided.

15. When the applicant lodged his review application with the Tribunal, he provided a number of documents. For the purpose of this decision, the relevant document is that of Dr John Crowley dated 24 November 2019.

16. The letter from Dr Crowley details that the applicant worked for Silver Pines Veterinary Clinic and Chevaux Bloodstock from 1 April 2019 until 19 July 2019 at Woodlands, NSW 2575. The applicant’s duties involved thoroughbred horse husbandry, grooming, feeding and stable management, exercising and working horses in preparation for yearling and ready to race sales, and for sale after racing. The letter indicated that Dr Crowley is a veterinary surgeon and a director of Chevaux Bloodstock Pty Ltd ABN 65607567304 and Silver Pines Veterinary Clinic Pty Ltd ABC 29083169902.

    FINDINGS AND REASONS

17. The letter from Dr Crowley makes it clear that the applicant engaged in working that could reasonably be considered ‘maintaining animals for the purpose of selling them’. There is no reason for the Tribunal to doubt the truthfulness of the letter’s contents.

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

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)(a) of Schedule 2 to the Regulations.

    Nathan Goetz

    
    

    Member