1510377 (Migration)

[2015] AATA 3932

1510377 (Migration) [2015] AATA 3932 (22 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms HAILEY HEBEBRAND

CASE NUMBER:  1510377

DIBP REFERENCE(S):  BCC2015/1159473

MEMBER:Suhad Kamand

DATE:22 December 2015

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 22 December 2015 at 3:00pm

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 14 July 2015 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

2. The applicant applied for the visa on 20 April 2015. 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) which requires, where an applicant is or has previously been in Australia as the holder of a working holiday visa, the Minister to be satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied that the applicant had completed the prescribed period of specified work.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. It is not in dispute that, at the time of application for the visa the subject of this review, the applicant was in Australia as the holder of a Working Holiday subclass 417 visa which was granted on 13 January 2014 and ceased on 1 June 2015. The applicant entered Australia as the holder of that visa on 1 June 2014.

   Has the applicant carried out the requisite specified work in regional Australia?

5. Clause 417.211 requires, amongst other things, 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 Working Holiday visa. ‘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 08/048.

6. The issue in this case is whether the Tribunal is satisfied, on the evidence before it that, at the time of application (ie 20 April 2015), 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.

7. The applicant identified having undertaken specified work as follows:

   a.Boshak (ABN 95050758453, commencing on 16 June 2014 and ending on 20 July 2014, in postcode 6568;

   b.MAS Accommodation (ABN 72737550827) Commencing on 5 January 2015 and ending on 30 March 2015 in postcode 4455;

   c.MAS Projects Pty Ltd (ABN 38164479869) commencing on 8 April 2015 and ending on 20 April 2015 in postcode 4428.

8. The applicant also submitted a completed Form 1263 Form, job, descriptions, bank authority, bank statements and payslips to evidence the work she claims to have undertaken.

9. The job descriptions for MAS Accommodation and MAS Projects describes the work completed as “camp attendant”, “cleaning of camp” and “land maintenance”. The MAS Projects job description also includes kitchen hand duties.

10. The delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that, on 2 June 2015, a delegate of the department contacted MAS Projects employee Naomi Hodgson who gave information that: the applicant commenced work with them in the first week of January 2015 and was still employed with them; her role included administration and co-ordination of the camps in the ‘camp manager” role; kitchen hand and cleaning tasks were also included in her job.

11. In response to a letter from the department indicating that the above work may not be considered “specified work” as defined by the relevant instrument, the applicant’s Registered Migration Agent (RMA) submitted, in writing, on 30 June 215, that: the work completed was “Mining Support Services” work; the tasks undertaken by the applicant were key to mining operations including occupational health and safety; the applicant was performing duties of a camp manager due to her experience; there is no reference in the Regulations or the Act that Mining Support Services should be interpreted by reference to ANZSIC[1], as suggested in the Department’s letter; an MRT decision on a similar matter takes a broader approach.

    [1] The Australian New Zealand Standard Industrial Classification

12. Relevant to this matter instrument  IMMI 08/048 identifies specified work to be “any type of work identified in the list below”, that list including, in respect of mining: 

    (i)      coal mining
    (ii)      oil and gas extraction
    (iii)      metal ore mining
    (iv)      construction material mining
    (v)      other non-metallic mineral mining and quarrying
    (vi)      exploration
    (vii)      mining support services

13. The delegate correctly notes, in the decision record, that the Department’s Procedures Advice Manual (PAM) states the following:

    The agricultural work activities defined by the specified work legislative instrument can be interpreted literally. This applies to plant and animal cultivation, fishing and pearling and tree farming and felling. The broader activity categories relating to construction and mining are further defined in the 2006 version of the Australian New Zealand Standard Industrial Classification (ANZSIC). This source should be referred to when considering eligibility of work undertaken in the construction and mining industries. The 2006 ANZSIC can be found at work eligibility determinations that can't be made either through general reading of the legislative instrument (for plant and animal cultivation, fishing and pearling and tree farming and felling) or by consulting ANZSIC should be emailed to WHM Policy Enquiries for clarification.

14. However, the PAM offers useful policy guidance only, and cannot be rigidly applied. The Tribunal is mindful that ANZSIC, while providing some guidance, is not referred to in the relevant legislation as a reference point by which “specific work”, or “mining support services” must be assessed. It is simply one relevant factor to be taken into account.  The Tribunal considers that the reference to “mining support services” in the relevant instrument is broad and cannot be read down by reference to the ANZSIC.

15. Also relevant is the additional evidence submitted to this Tribunal by the applicant in support of her review application. Specifically, she submitted a statutory declaration from Trish Donnelly, the Director of  MAS Accommodation and MAS Projects who, in that declaration, states: the applicant was employed by MAS Accommodation as a camp attendant between 5 January 2015 and 30 March 2015 and at MAS Projects as a Camp Manager since 8 April 2015; Naomi Hodgson, who the Department contacted to confirm the applicant’s work, is an administrative officer not a Director; while the applicant did perform duties including administration and coordination of mining camps and camp manager, and undertook some kitchen hand work and cleaning accommodation blocks when required, this is an incomplete description of the applicant’s work in the applicant only performed those tasks on rare occasions amounting to less than 5% of her overall duties; the applicant’s full range of duties comprised:

    a.Design, develop and implement quality assurance systems for a mining sector accommodation provider;

    b.Design, develop and implement environmental and land management plans for a mining sector accommodation provider;

    c.Workplace Health and Safety delivery and auditing of a mining sector accommodation provider;

    d.In depth knowledge of current mining sector workplace health and safety, quality assurance and equal opportunity employment best practice guidelines and delivery of premium service under these guidelines;

    e.direct supervision and management of staff of a mining sector accommodation provider and monitoring of workplace health and safety practices and quality assurance practices of these staff;

    f.IT training and support services for new mining sector clients;

    g.IT training and support services from you and mining sector accommodation provider; and

    h.roster planning, staff scheduling and implementation.

16. The Tribunal accepts that the applicant performed the above work in her time at MAS Accommodation and MAS Projects. In the Tribunal’s view, the reference to “mining support services” is broad enough to encompass the activities described above and the Tribunal is satisfied that, in her employment at MAS Projects and MAS Accommodation between 5 January 2015 and 30 March 2015, and between 8 April 2015 and 20 April 2015, the applicant was undertaking specified work in the nature of mining support services as contemplated by clause (d)(vii) of Immi 08/048. The Tribunal is satisfied that she undertook this work for a cumulative period of 69 days while holding her previous WHV. The Tribunal also finds that this work was undertaken in postcodes identified as regional within the relevant instrument.

17. The Tribunal is also satisfied that the applicant undertook work as a camp hand at Boshack, undertaking duties including gardening, maintenance, feeding looking after animals and light construction duties. The Tribunal accepts the applicant’s evidence that she was not paid for that work, but was provided with accommodation and food under a WWOOFING arrangement. The Tribunal independently verified with Boshack that the visa applicant was employed there at Boshack from 16 to 22 June 2014, 30 June to 5 July 2014 and 13 to 20 July 2014, a total of 21 days. The Tribunal is satisfied on the evidence before it that the visa applicant undertook the work claimed at Boshack. While the visa applicant was not remunerated for the work, she was provided with food and board for undertaking an activity that, in Australia, normally attracts remuneration. The Tribunal is satisfied that the activities undertaken by the applicant at Boshack amount to ‘work” as contemplated by regulation 1.03 of the Regulations, and “specified work” as contemplated by paragraphs 3(a) and 3(e) of the relevant instrument. The Tribunal finds that the work was undertaken at a postcode (6568) designated as “regional Australia” in the relevant instrument.

18. Based on all the evidence before it and the considerations above, the Tribunal finds that the applicant undertook 90 days of “specified work” as contemplated by Immi 08/048 paragraph 3(a) for the above employers, at postcodes within “regional Australia” as contemplated by that instrument. Accordingly, the Tribunal finds that the applicant had, at the time of application, carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday Visa as required by clause 417.211(5).

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.

    Suhad Kamand

    
    

    Member