1512732 (Migration)

[2015] AATA 3654

1512732 (Migration) [2015] AATA 3654 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Goggin

CASE NUMBER:  1512732

DIBP REFERENCE(S):  BCC2015/2390843 CLF2015/58649

MEMBER:Nicola Findson

DATE:18 November 2015

PLACE OF DECISION:  Perth

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 18 November 2015 at 10:07am

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 1 September 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 18 August 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).

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 carried out specified work in regional Australia for a total period of at least 3 months as a holder of a Working Holiday visa.

4. The applicant appeared before the Tribunal on 11 November 2015, to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has undertaken 3 months of specified work in regional Australia as a holder of a Working Holiday visa.

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

7. 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.

8. The applicant gave evidence that he has worked as a carpenter whilst holding a working holiday visa.  The nature of that work falls within the general heading of “construction” in the relevant instrument.

9. The applicant also gave evidence that he worked for at least 3 building companies while he was living in Darwin from the end of August 2014 until July 2015.  Those companies were CBD Ceilings (ABN: 64425632341), KDF Roofing (ABN: 17421711076), and DJM Contractors (ABN: 77163274673).  Each of these companies is based and undertakes construction work in and around Darwin, postcode area 0800.  The Northern Territory in its entirety is a regional area for the purposes of the relevant instrument.

10. Between 5 November 2014 and 4 February 2015, but excluding the period of 6 December 2014 to 14 January 2015 (during which time the applicant departed Australia and returned to Ireland to spend the festive season) the applicant was employed, on a full time basis, by CBD Ceilings.  The applicant gave evidence that he worked between 8.5 and 10 hours a day, at least 6 days a week during this period.  The applicant was engaged for a period of 53 days with this employer.  This employment was included in the applicant’s visa application.

11. The applicant was also employed by KDF Roofing Pty Ltd, on a full time basis, for a period of 30 days.  The applicant gave evidence that he worked 6 days a week, for at least 8.5 hours a day, between 29 September and 28 October 2014.  During his time with this company, he carried out repairs to houses and helped build a big tin shed. 

12. Further, the applicant was employed by DJM Contractors, on a full time basis, for a period of 42 days.  Between 12 February and 25 March 2015, he worked on a big office fit out for the Paspaley Group in the centre of Darwin.  The applicant indicated to the Tribunal that he worked 6 days a week, and between 8 to 14 hours a day in order to finish this project. 

13. The applicant indicated to the Tribunal that he did not include details of his employment with KDF Roofing or DJM Contractors in his visa application because he did not have the ABN numbers for these companies at the time he lodged his application, and, in any event, he (mistakenly) thought the work he had done for CBD Ceilings would suffice.

14. Bank statements provided to the Tribunal by the applicant support regular salary deposits from each of the abovementioned building companies for the relevant periods of employment specified by the applicant.

15. The Tribunal finds that the applicant has previously been in Australia as the holder of a Working Holiday visa.  The Tribunal finds on the basis of evidence before it, including evidence that was not previously available to the delegate at the time of decision, that the applicant has carried out specified work for the minimum 3 month period; that he undertook the work in a regional area; and that he was the holder of the Working Holiday visa at that time.  Therefore, the applicant satisfies cl.417.211(5).

16. 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

17. 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.

    Nicola Findson

    
    

    Member