1510855 (Migration)

[2015] AATA 3651

1510855 (Migration) [2015] AATA 3651 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jamie Edward Chapman

CASE NUMBER:  1510855

DIBP REFERENCE(S):  CLF2015/56077

MEMBER:Rachel Homan

DATE:16 November 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 16 November 2015 at 12:42pm

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 20 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).

2. The applicant applied for the visa on 8 July 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the applicant had been in Australia as the holder of a Subclass 417 visa, and the delegate was not 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 that visa.

4. On 30 October 2015, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to submit additional evidence that he had carried out specified work in regional Australia for a period of at least 3 months. The applicant submitted additional evidence to the Tribunal and, as a consequence, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant has carried out specified work in regional Australia for a total period of at least 3 months.

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

6. 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 IMMI08/48 (F2008L02264).

7. Relevantly to this case, the entire Northern Territory is specified as ‘regional Australia’ and specified work includes:

   (e) construction

   (i) residential building construction

   (ii) non-residential building construction

   (iii) heavy and civil engineering construction

   (iv) land development and site preparation services

   (v) building structure services

   (vi) building installation services

   (vii) building completion services

   (viii) other construction services

8. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration. The expression, ‘3 months’ is not defined in the Regulations; however Departmental guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. Further, these guidelines specify that the work should be the equivalent of full time work for that employer, that region and that industry. The Tribunal notes, however, that cl.417.211 does not on its face require the work to be done on a full time basis. Further, the instrument for ‘specified work’ refers only to ‘any type of work identified in the list below’ and does not explicitly require the work to be conducted on a full time basis.

9. The applicant is a 26-year-old British national who arrived in Australia as the holder of a Working Holiday visa on 12 July 2014. Apart from a period of approximately one month in December 2014 and two weeks in June 2015, the applicant remained in Australia as the holder of that visa until it expired on 12 July 2015.

10. In his visa application form, the applicant declared that he had undertaken specified work in regional Australia for a total of three months, predominantly in the construction industry. The applicant further declared that he had approved evidence of having undertaken specified work in regional Australia for a total of three months. The applicant declared that between 29 October 2014 and 12 February 2015 he had been employed as a painter and decorator in postcode 0821.

11. The delegate refused the visa on the basis that the applicant had left Australia on 23 December 2014 and re-entered Australia on 22 January 2015. Based on this information, the applicant could only have completed 78 days of specified work, which was less than the 88 day minimum requirement under policy. The decision record also noted that no further evidence in support of the applicant’s specified work claim had been provided.

12. At the time he applied for review, the applicant submitted a completed Form 1263, in which he stated that between 29 October 2014 and 12 February 2015 he worked as a painter for 60 days for Bill Warren Painting Services in postcode 0821. Between 30 March 2015 and 20 May 2015, the applicant claimed he worked for 51 days as a painter for WTD Constructions Pty Ltd in postcode 0828.

13. In response to the Tribunal’s s.359(2) letter, the applicant submitted a letter from WTD Constructions confirming the applicant’s employment as a subcontractor between 26 March 2015 and 20 May 2015 in Darwin and other remote locations in the Northern Territory. The letter contains a screen dump showing payments made to the applicant on 8 April, 22 April, 6 May and 20 May 2015. Also submitted was a letter from Bill Warren Painting Services confirming that the applicant was employed between 29 October 2014 and 12 February 2015 as a full-time painter. The applicant has also provided tax invoices and timesheets for the hours the applicant worked for Bill Warren.

14. The applicant has additionally provided to the Tribunal bank transaction records for the period 27 October 2014 to 9 May 2015, which show regular transactions in and out of the applicant’s bank account occurring in Darwin during that period, including payments from the two employers identified above.

15. On the basis of the bank statements before it, the Tribunal is satisfied that the applicant was physically present in a location specified as ‘regional Australia’ between 29 October 2014 and 9 May 2015. The Tribunal is satisfied on the other evidence referred to above that the applicant was employed whilst in that location doing painting and construction services which, the Tribunal is satisfied, constitutes ‘specified work’. The Tribunal is satisfied that for at least a three month period the applicant was employed doing such work in the Northern Territory on a full-time basis. The Tribunal is further satisfied that the applicant was the holder of a Working Holiday visa throughout this period.

16. For the above reasons, the Tribunal is satisfied that the applicant had, at the time he made the present visa 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. Therefore, the applicant satisfies cl.417.211(5). 

17. 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

18. 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.

    Rachel Homan

    
    

    Member