1603388 (Migration)

[2016] AATA 3935

1603388 (Migration) [2016] AATA 3935 (31 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julio Cesar INGRATTA

CASE NUMBER:  1603388

DIBP REFERENCE(S):  BCC2015/3338590 CLF2016/20076

MEMBER:Tony Caravella

DATE:31 May 2016

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 31 May 2016 at 12:33pm

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 2 March 2016 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 12 November 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).

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 provided sufficient evidence to verify that he had completed 3 months specified work in regional Australia.  

4. On 14 March 2016, the applicant applied to this Tribunal for a review of the delegate’s decision.

5. On 20 May 2016, the Tribunal received a detailed written submission from the applicant’s agent.  This includes:

   ·    A five-page written submission setting out the relevant law and the applicant’s claims and relevant conclusions;

   ·    A copy of a Form 1263, being a Working Holiday visa: Employment verification and job description;

   ·    Relevant bank statements and a bank authority;

   ·    A letter signed by the applicant’s employer, Mark Craig, and payslips indicating the applicant was employed by M & A Formwork in the period 15 June 2015 to 9 December 2015;

   ·    A letter signed by the applicant’s employer, specifying the locations where the specified work was carried out by the applicant.

6. The applicant appeared before the Tribunal on 30 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from Mr Mark Craig.  The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

7. The applicant was represented in relation to the review by his registered migration agent.  The applicant’s agent also attended the hearing.

8. After briefly explaining the procedural aspects of the hearing, and explaining its understanding of the delegate’s reasons for refusing to grant the second Working Holiday visa, the Tribunal invited the applicant to give his evidence and to make his submissions. 

9. The applicant began by saying that he believed that he has complied with the requirements for the grant of a second Working Holiday visa.  He said he had worked in what he understood was ‘regional Australia’.  He also said that he had calculated that he had worked for over 88 days, in fact he claimed he had calculated that he had worked for 96 days in regional Australia.   

10. The Tribunal referred to the documentary evidence which had been submitted prior to the hearing and which included a letter from M & A Formwork indicating the applicant had worked on three building sites in Dawesville, Mandurah, and Silver Sands, respectively, from 15 June 2015 to 4 December 2015.  It asked the applicant to describe these sites and the work he undertook there.  He said that at the time he was living relatively nearby to the sites; specifically he lived in Rockingham.  He said he moved to Doubleview shortly before his employment ended.  He said his housemate introduced him to the employer, Mark Craig of M & A Formwork and that is how he got the job.  He said that Mark Craig was prepared to train him  to do form work because he was not otherwise experienced in this sort of work. 

11. The applicant said that one of the sites was a large shopping centre while the other two were residential constructions.  He said that M & A Formwork is a small team comprising Mark Craig, Mark’s 16-year-old son, and the applicant.  He said that this is why it took more time to complete the work on the sites.  He told the Tribunal that he has since resumed employment with M & A Formwork.

12. The Tribunal referred the applicant to the copies of the payslips which he had submitted prior to the hearing and that these did not show exactly the number of days he worked but rather the number of hours.  The Tribunal put it to the applicant that the payslips only covered the period from 2 July 2015 to 9 December 2015 rather than from 15 June 2015 as he had claimed.  The Tribunal put it to the applicant that based on its calculation of a day comprising 8 hours, the total days reflected in the payslips amounts to 78 days work.  The applicant then drew the Tribunal’s attention to a copy of a PAYG payment summary which was also included in the pre-hearing submissions and which indicates payments were made for employment from 15 June 2015 to 30 June 2015.  The applicant submitted that this period should be added to the days reflected in the payslips.  The applicant also submitted that there were days when they would go to a site but would not be able to work a full eight hours but that this should still be counted as a day.  He gave, by way of example, days when they were delayed in their formwork tasks because bricklayers, plumbers, or electricians were on site, or days when they had to correct bricklayers’ errors.  He said on several other days they would go to the site with the truck to deliver materials for formwork and they might not be able to actually work because of other trades being on site.  He said their usual working day started at 7.00am through to 3.00pm, but it was not uncommon to work shorter days.

13. The Tribunal referred to one of the payslips for the period 8 to 14 October, which indicates he worked and was paid for 47 hours.  It asked the applicant whether this represented 5 days’ work.  He said that on that week he worked a Saturday as well as from Monday to Friday.  He indicated that was at least one Saturday when he worked a full day, but there might have been the other odd Saturday when they worked part of the day.

14. The Tribunal spoke to Mark Craig by telephone.  He confirmed that he employed the applicant for the period he has claimed and which Mr Craig had confirmed in his letter and through the payslips.  He confirmed the location of the building sites and referred to one being a large shopping centre and medical centre.  He referred to the applicant being a good worker with good character. 

15. The applicant told the Tribunal that he had calculated that he worked for 96 days on the basis of some of the days worked, for the reasons stated including other trades being on site, having been shorter than 8 hours.  He said that Mark Craig had also confirmed to him that he had worked 96 days.  

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether the applicant meets the prescribed requirements specified in cl.417.211(5) of Schedule 2 to the Regulations.

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

18. Clause 417.211 requires, among 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 Working holiday visa - definitions of 'specified work' and 'regional Australia' (item 1225(5)). Paragraph 3(e) of IMMI 08/048 specifies as ‘specified work’ for the purposes of subitem 1225(5) of Schedule 1 to the Regulations, the following construction work:

    (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

19. As indicated above, on 20 May 2016, the Tribunal received a detailed written submission from the applicant’s migration agent.  This included a number of attachments, including a completed Form 1263 Working Holiday visa: Employment verification.  Also included with the submission are several letters from Mark Craig on a letterhead of M&A Formwork, payslips issued by that employer for the period 15 June 2015 to 9 December 2015, and various bank statements in respect of the visa applicant.  A letter dated 12 May 2016 from M&A Formwork states the applicant was employed on a casual basis as a formworker from 15 June 2015 to 5 December 2015.  The later states the “project locations” to be:

    ·4 Tower Street, Dawesville, WA, 6211;

    ·1&2 Vivaldi Drive, Mandurah, WA, 6210; and

    ·135 Ormsby Terrace, Silver Sands, WA, 6210

20. The Tribunal found the applicant gave clear and open answers to its questions, and found his claims to be consistent with the evidence of his employer Mark Craig.  It finds both witnesses to be credible.

21. The Tribunal finds by reference to IMMI 08/048, and by reference to the evidence of the applicant and Mr Craig, that the applicant performed ‘specified work’ by carrying out formwork duties on the construction sites nominated. 

22. Having regard to the postcodes of the nominated construction sites, the Tribunal finds that these fall within ‘regional Australia’ as that term is defined in IMMI 08/048.

23. In respect of the period the applicant has worked for M&A Formwork, the Tribunal accepts the applicant’s and his employer’s submissions, and the PAYG Statement, that he began working for this employer on 15 June 2015 and finished in the pay period ending 9 December 2015.  The Tribunal accepts the applicant’s and the employer’s submission that there were a number of days when they did not work a full day because of the interference of other trades on the relevant sites, or for other reasons.  The Tribunal accepts that this would be a normal scenario in this occupation and not inconsistent with the industry standards in an industry which relies on the various trades working cooperatively with other trades and in the proper sequence.  It accepts the applicant’s submission, corroborated by evidence of payments into his bank account from the employer.  

24. The Tribunal considered all of the evidence, including the sworn oral evidence of the applicant and his employer, the copies of the payslips, the PAYG statement, and copies of the applicant’s bank statements.  It also considered the explanation of the applicant and his employer as to how he worked additional days, albeit that some were shorter than 8 hours, and also worked at least one Saturday.  On this basis the Tribunal finds the applicant performed specified work in regional Australia while the holder of his first Working holiday visa for a period in the order of 96 days, and thereby more than 3 months, with the nominated employer.  

25. Therefore, the applicant satisfies cl.417.211(5). 

26. 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

27. 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.

    Tony Caravella

    
    

    Member