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1408783 [2014] MRTA  1690  (29 July 2014)

Last Updated: 11 August 2014

1408783  [2014] MRTA 1690  (29 July 2014)

DECISION RECORD

APPLICANT: Mr Omar Khaliss

MRT CASE NUMBER: 1408783

DIBP REFERENCE(S): CLF2014/72950

TRIBUNAL MEMBER: Wan Shum

DATE: 29 July 2014

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 29 July 2014 at 9:28am
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 8 May 2014 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) Subclass 417 (Working Holiday) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied for the Subclass 417 (Working Holiday) visa on 3 March 2014. 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), which requires that, at the time of the visa application, an applicant who is in Australia as the holder of a working holiday visa had carried out specified work in regional Australia for at least 3 months.
3. The delegate was not satisfied the applicant had undertaken specified work in regional Australia for at least 3 months and refused to grant the Working Holiday visa. The applicant has applied for review of that decision.
4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

ISSUE FOR CONSIDERATION

5. The applicant, a national of Italy, was granted a Subclass 417 Working Holiday visa on 2 December 2012 and entered Australia on 19 April 2013, which meant that the cease date of the visa was 19 April 2014. The applicant applied for a second Working Holiday visa on 4 April 2014 and claimed that he had undertaken work in regional Australia for a total of 3 months. The issue in this review is whether the Tribunal is satisfied that the applicant, who was in Australia as the holder of a working holiday visa, ‘has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa’ as required by cl.417.211(5). ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111; subitem 1225(5) of Schedule 1 to the Regulations. The applicable instrument is IMMI 08/048.
6. On the visa application form, the applicant claimed that he had undertaken specified work in regional Australia in the Agriculture, Forestry and Fishing industry. It was indicated on the form that the applicant had undertaken specified work for an employer, with the Australian Business Number (ABN) of 41099870121, located in the postcode 3500 with the start date of 6 June 2013 and ending on 18 September 2013.
7. The delegate’s decision record indicates that the officer sought further information regarding the employment but was not provided with bank statements or evidence of travel. The delegate considered that the evidence was insufficient to verify the applicant’s claim of specified work.
8. When lodging the application for review, the applicant supplied a completed Form 1263 indicating that he was employed by Attila San to do farm work. The business name was given as San and Son and the address was 875 Benetook Avenue, Mildura, 3500. The total number of actual days worked entered on the form was 89. It appears that the form was signed by Attila San. According to the ABN Lookup website, the trading name is San & Sons Pty Ltd. On the form, the applicant’s start date is given as 6 June 2013 with an end date of 18 September 2013. On Attachment 2 ‘Job Description’, it was indicated that the applicant did pruning work and worked 6 days a week for 7 hours a day.
9. It was further indicated on Attachment 2 ‘Job Description’ that the applicant was working as a WWOOFer. This is a voluntary program, otherwise known as Willing Workers on Organic Farms. According to the WWOOF Australia website:[1]

WWOOFing in Australia is NOT Paid Employment. WWOOFing is VOLUNTARY work in exchange for learning something about Organic Growing, the people and the country you are visiting. To learn about their Host's growing techniques or lifestyle, WWOOF volunteers or WWOOFers do 4 to 6 hours voluntary work each day to cover their bed and board. Often this will be simple farm work, but it can also include environmental work such as tree planting ...

10. Based on the evidence before the Tribunal, which includes oral evidence given by the applicant at the hearing, the Tribunal accepts that the applicant travelled to Mildura in early June 2013 for the purposes of looking for specified work after being unable to secure work in Cairns, Queensland. This is consistent with transactions on his bank account statements that he has provided for the period he claims to have been undertaking specified work. Other than those transactions, in the period in which he claims to have been undertaking the necessary work, there appears one payment at Woolworths on 10 June 2013 and two ATM cash withdrawals which occurred in July 2013. Both withdrawals were in Mildura. Despite completing Attachment 2 indicating that he was working as a WWOOFer, the applicant was not undertaking the WWOOF program, and his employer is not a WWOOF host. It appears that the applicant considered that he was undertaking WWOOF work as he was not paid but worked for food and board. He advised at the hearing that he only found out later that it was possible to purchase a WWOOF guide. Mr San described the arrangement to the Tribunal as WWOOFing-type work. The Tribunal accepts that the applicant struggled to find paid work in Mildura and eventually worked for food and board for Mr San, pruning, trimming and training grapevines on a farm which, according to Mr San, is located at Benetook Avenue, Mildura, Victoria.
11. Given the nature of the claimed work, there is no evidence of pay or a tax return to support the applicant’s claim to have worked for Mr San for the necessary period. However, his evidence at the hearing was consistent with the evidence of Mr San which was provided to the Tribunal after the hearing over the phone and by email. Mr San has advised the Tribunal that the applicant worked 5 to 6 days per week from 6 June to 18 September 2013 for a total of 89 days. The Tribunal has confirmed the email address and mobile number belong to Mr Attila, or Tony, San based on various internet sources, including the Yellow Pages and the Facebook account of his other business, Mildura Central Backpackers.[2] In the circumstances, the Tribunal is prepared to accept that the applicant has completed three months of pruning, trimming and training grapevines for San & Sons Pty Limited.

Specified work and carried out in regional Australia

12. The Tribunal has considered whether the work carried out by the applicant constitutes specified work for the purposes of cl.417.211(5), and considers that the work listed under Item 3(a) in IMMI 08/048 of relevance in this case, as extracted below:

SPECIFY, for the purposes of subitem 1225(5) of Schedule 1 to the Regulations, specified work to be any type of work identified in the list below:

(a) plant and animal cultivation
(i) the harvesting and/or packing of fruit and vegetable crops
(ii) pruning and trimming vines and trees
(iii) general maintenance crop work
(iv) cultivating or propagating plants, fungi or their products or parts
(v) immediate processing of plant products
(vi) maintaining animals for the purpose of selling them or their bodily produce, including natural increase
(vii) immediate processing of animal products including shearing, butchery, packing and tanning
(viii) manufacturing dairy produce from raw material

13. On the evidence before it, the Tribunal is satisfied the work carried out by the applicant for Mr San of San & Sons Pty Limited comes within plant and animal cultivation, in particular under item (3)(a)(ii). The Tribunal is satisfied that the work was carried out in Mildura, postcode 3500, which is regional Australia according to the relevant instrument.
14. Overall, the Tribunal is satisfied that the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a working holiday visa. The Tribunal finds that the applicant meets 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.
      

Wan Shum
Member

[1] http://www.wwoof.com.au/wwoofers/visa-info (accessed 22 July 2014).
[2] Both websites accessed on 28 July 2014.