Aherne (Migration)

Aherne (Migration) [2023] AATA 2775 (4 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Colm Anthony Aherne
REPRESENTATIVE:  Mr Darren Good-Giles (MARN 0316870)
CASE NUMBER:  2213172
HOME AFFAIRS REFERENCE(S):          BCC2021/932539
MEMBER:Peter Papadopoulos
DATE:4 September 2023
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(6) of Schedule 2 to the Regulations.

Statement made on 04 September 2023 at 12:57pm
CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – ANZSIC Group 31 Heavy and Civil Engineering Construction – applicant has been remunerated for the specified work he has undertaken in regional postcodes – applicant did perform the kind of work specified in paragraph (b) of Item 4 of Table 1 in section 7 of LIN 20/182 – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.03, 1.15, Schedule 2, cl 417.211

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 August 2022 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 23 January 2022. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 417.211(6):
(6) If the applicant has held 2 subclass 417 visas in Australia, the Minister is satisfied that:
(a) the applicant has carried out a period or periods of specified Subclass 417 work; and
(b) the total period of that work is at least 6 months; and
(c) all of that work was carried out while the applicant held:
(i) the second Subclass 417 visa; or
(ii) a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa); and
(d) all of that work was carried out on or after 1 July 2019; and
(e) the applicant has been remunerated for that work in accordance with he relevant Australian legislation and awards
(f) the work was not carried out for an excluded employer.
On 31 August 2022, the delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(6) because he had not carried out a period of specified work during the period he held his second Subclass 417 visa.
The applicant appeared before the Tribunal on 1 September 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a 30 year old citizen of Ireland. He was granted his first Subclass 417 visa on 23 October 2019. He subsequently arrived in Australia on 29 January 2020 and his first Subclass 417 visa was then set to cease on 29 January 2021. He applied for his second Subclass 417 visa on 6 January 2021, which was granted on 5 March 2021 and set to cease on 29 January 2022.
The applicant applied for his third Subclass 417 visa on 23 January 2022. As stated above, the delegate refused to grant this visa on 31 August 2022, and this is the decision under review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has carried out at least 6 months of specified Subclass 417 work after 1 July 2019 whilst holding a specific visa.
Has the applicant carried out specified Subclass 417 work?
Clause 417.211(6) requires that, at the time of lodgment of the visa application, the applicant had carried out specified Subclass 417 work for a total period of at least 6 months. All of that work must have been carried out on or after 1 July 2019 and while the applicant held the second Subclass 417 visa or a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa). The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. Importantly, ‘specified Subclass 417 work’ is defined in reg 1.03 as work that was carried out in one or more specified areas of Australia and of one or more kinds specified by a legislative instrument made under reg 1.15FAA. The applicable instrument is Migration (LIN 20/182: Subclass 417 (Working Holiday) visa – Specified work and places) Instrument 2020 (LIN 20/182). Relevantly to this case where construction work is involved, Item 4 in Table 1 of section 7 of LIN 20/182 provides that following kinds of work meet the definition of ‘specified Subclass 417 work’:
(a)building construction;
(b)heavy and civil engineering construction;
(c)land development and site preparation services;
(d)building structure services;
(e)building installation services;
(f)building completion services.
Relevant material before the Department and summary of the delegate’s decision
In his application submitted to the Department, the applicant claimed to have been employed by RTM (AUS) Pty Ltd from 29 March 2021 to 7 October 2021 and performed ‘formwork carpentry’ duties in the 3672 regional postcode area during this relevant period. In support of this claim, the applicant provided to the Department:
·various pay advice slips from RTM (AUS) Pty Ltd;
·mobile telephone screenshot demonstrating superannuation contributions made by RTM (AUS) Pty Ltd;
·an extract of his Commonwealth Bank of Australia bank statement.
The delegate determined through an open search of the applicant’s work location in the town of Benalla in Victoria, that the claimed work was performed by the applicant at a ‘concrete precast factory’. The delegate formed the view that this work was not ‘specified Subclass 417 work’ as defined in LIN 20/182. However, the delegate’s decision is bereft of reasoning as to why the applicant’s work did not amount to ‘specified Subclass 417 work’.
Relevant material before the Tribunal
On 10 February 2023, the representative provided the following documents to the Tribunal:
·     a submission in which it was argued that the delegate’s decision was incorrect because:
‘Sch2Visa417 PAM states manufacturing materials used on construction site (such as concrete or steel) is ineligible work. Mr Aherne was not making concrete, he was constructing the formwork (carpentry) that allowed the pre cast factory to make concrete structures. This would fall under Migration (LIN 20/182 instrument Part Table as Construction work.’
·     an extract from the Department’s Procedures Advice Manual (PAM3) entitled ‘Types of specified work’
·     a letter from Mr Ainsley Bannan, Rocktown Site Superintendent - Benalla Precast, Rocktown dated 9 February 2023, in which it was stated that Mr Aherne had been employed by RTM (AUS) as a carpenter from 29 March 2021 to 19 February 2022 and that during this period performed the following formwork carpentry duties in Benalla, Victoria (postcode 3672):
o    Reading and drawing plans
o    Cutting materials with hand and power tools
o    Mark and line out formwork
o    Erect and disable formwork
o    Erect and dismantle jump form formwork
o    Erect and dismantle slip form formwork
o    Constructing formwork for concrete slabs
o    Ensuring Health & Safety regulations are followed on site especially with the use of power tools
·videos of the applicant at work at the Benalla precast factory;
·various documents relating to the applicant’s payment of wages and superannuation entitlements for his work during the relevant period.
Oral evidence at hearing, analysis and findings
At hearing, the Tribunal explored with the applicant the location and duration of his work in regional Australia between 30 January 2021 and 29 January 2022. During this period, he was the holder of a visa prescribed by cl 417.211(6)(c). The applicant and his representative confirmed that the relevant work performed during this period for assessment purposes was the applicant’s formwork carpentry work at the Benalla Precast factory between 29 March 2021 and 7 October 2021. After some discussion with the Tribunal, the applicant confirmed that his work at the precast factory in Benalla did not involve the erection and dismantling of slip form formwork. The Tribunal accepts this. Nevertheless, based upon the applicant’s persuasive oral testimony about the nature and scope of his work activities at the Benalla precast factory, the Tribunal is satisfied that the application did perform all other duties specified in Mr Bannan’s reference letter.
Asked to particularise work he performed and the nature of business activity where the work was performed in Benalla, the applicant explained that the business was primarily involved in major infrastructure construction projects and that he largely worked in conjunction with others in order to produce concrete slab components for single-use. His work required him to read drawings and plans and then make formwork (using timber and plywood) that would be used in the production of those slabs. Concrete was poured into the framework shutter mould and once dry, the shutters would be stripped and the concrete slabs would dry and then be transported from Benalla for use in the construction of bridge parapets as part of the West Gate Tunnel Project in Melbourne, Victoria. He explained that these concrete components varied in size but many were up to six metres in length and two metres in width. He further explained that these concrete components could not be made on-site in Melbourne due to various infrastructure project considerations including safety and cost. The Tribunal accepts this evidence.
Having articulated the kind of work undertaken by the applicant and the primary business activity in relation to where such work was performed, the Tribunal then engaged with the applicant and his representative for the purpose of hearing evidence and argument in relation to how that work amounted to any of the following eligible kinds of work specified within the construction work category in LIN 20/182:
(a)building construction;
(b)heavy and civil engineering construction;
(c)land development and site preparation services;
(d)building structure services;
(e)building installation services;
(f)building completion services.
While these kinds of work are not defined in LIN 20/182, Departmental policy guidance provides that the broader work category of ‘Construction work’ is further defined in the 2006 version of the Australian New Zealand Standard Industrial Classification (ANZSIC). The policy guidance also provides that decision-makers should refer to ANZSIC when considering the eligibility of work undertaken in the construction industry. On this basis, and after some discussion, the Tribunal drew to the applicant’s attention its concern that the work performed by the applicant at the factory in Benalla was not a kind of work that amounted to:
·     ‘building construction’ because his work was not undertaken in relation to the construction, alteration, addition or renovation of houses or other residential buildings, or in organising or managing these activities – as described in ANZSIC Subdivision 30 Building Construction;
·     ‘land development and site preparation services’ because his work was not undertaken in relation to either the subdividing of land into lots and servicing of such land (such as excavation work for the installation of roads and utility lines) for subsequent sale or earthmoving work – as described in ANZSIC Group 321 Land Development and Site Preparation Services;
·     ‘building installation services’ because his work was not undertaken in relation to the provision of construction-related services involving plumbing, electrical, air conditioning or heating, fire and security alarm installation or other building installations services such the installation of lifts and elevators – as described in ANZSIC Group 323 Building Installation Services.
The applicant and his representative acknowledged the Tribunal’s concern in this regard and accepted that the applicant did not perform any of these kinds of work during the relevant period. On this basis, the Tribunal finds that the applicant did not perform the kind of work specified in paragraphs (a), (c) and (e) of Item 4 of Table 1 in section 7 of LIN 20/182.
In relation to ‘building structure services’ which is described in ANZSIC Category 322 Building Structure Services, the representative presented an argument at hearing that the applicant’s work amounted to ‘concreting services’ because the business he worked for was engaged in ‘concreting work, concrete pouring or other concrete work on construction projects’. While the Tribunal acknowledges that the applicant was involved in the manufacture of concrete slabs off-site due to the needs of a major infrastructure project, this can be distinguished from the class of on-site construction activities specified within ANZSIC Subcategory 3221 Concreting Services that solely contemplate on-site construction work e.g. concrete footpath construction, concrete foundation construction, concrete kerb and guttering construction, concrete pumping, concrete work on construction projects and the repair of kerbs, gutters or other concrete structural products. Furthermore, the applicant and his representative did not provide any persuasive argument or evidence to otherwise demonstrate that the work performed by the applicant was of a kind otherwise outlined in relation to any of the primary business activities specified in ANZSIC Category 322 Building Structure Services. Accordingly, the Tribunal finds that the applicant did not perform the kind of work specified in paragraph (d) of Item 4 of Table 1 in section 7 of LIN 20/182.
In relation to ‘building completion services’ which is described in ANZSIC Category 324 Building Completion Services, the representative presented an argument at hearing that the applicant’s work amounted to ‘carpentry services’ as contemplated within ANZSIC Class 3242 Carpentry Services:
3242 Carpentry Services
This class consists of units mainly engaged in carpentry work or the fixing of wooden formwork on construction projects.
Primary activities
·Carpentry work on construction projects
·Joinery work on construction projects (on-site fabrication only)
·Roof truss, wooden, fixing
·Wooden flooring installation
·Wooden formwork erection
·Wooden kitchen cabinet installation
·Wooden roof truss installation
Exclusions/References
Units mainly engaged in manufacturing prefabricated, wooden built-in cabinets, cupboards or shop fronts and their installation (except on-site fabrication) are included in Class 1492 Wooden Structural Fitting and Component Manufacturing.
The representative maintained the applicant’s work constituted ‘carpentry work on construction projects’ and ‘wooden formwork erection’. While the Tribunal accepts that the work performed required the applicant to draw upon his carpentry skills, the business unit for which the applicant worked was not mainly engaged in carpentry work or the fixing of wooden formwork on construction projects. More importantly, the Tribunal maintains that this ANZSIC category relates to businesses primarily involved in permanent form work carpentry required for building completion and finishing rather than those engaged in temporary wooden formwork that would be dismantled and not remain as a fixed component of the constructed or built item. Furthermore, there was no persuasive argument or evidence before the Tribunal to support a claim that applicant was involved in a kind of work in a business engaged in other subcategories of construction work specified in ANZSIC 324 Building Completion Services. Accordingly, the Tribunal finds that the applicant did not perform the kind of work specified in paragraph (f) of Item 4 of Table 1 in section 7 of LIN 20/182.
However, in relation to ‘heavy and civil engineering construction’ which is described in ANZSIC Group 31 Heavy and Civil Engineering Construction, the Tribunal accepts that the applicant’s work was performed in connection with a business mainly engaged in the construction of bridges (including construction from prefabricated components) and elevated highway construction. In particular, the Tribunal finds that the primary activity of the business for whom the applicant worked was bridge construction (including construction from prefabricated components) and elevated highway construction. This finding is supported by the applicant’s persuasive evidence that the work he performed was as part of a larger construction business activity in connection with the West Gate Tunnel Project in Victoria. The Tribunal acknowledges that, according ANZSIC, businesses mainly engaged in ‘special trade construction of component parts of roads or bridges e.g. in construction of kerbs or gutters only or in installing electrical wiring for traffic lights are generally included in the appropriate classes of Subdivision 32 Construction Services’ are excluded from consideration: see ANZSIC Subcategory 3101 Road and Bridge Construction. That said, this exclusion is general in its application and the Tribunal finds that it does not encompass business units involved in the construction of larger prefabricated concrete components that can only be constructed off-site given the safety and other requirements of larger infrastructure project delivery. In this case, the applicant’s formwork carpentry was an integral activity that needed to be performed to enable the completion of the business’ primary activity of bridge construction, which in this instance allows for construction of bridges from prefabricated components and does not require the construction process to be solely performed on-site where the bridge will be built. On this basis, the Tribunal finds that the applicant did perform the kind of work specified in paragraph (b) of Item 4 of Table 1 in section 7 of LIN 20/182.
Having considered the available material, the Tribunal also finds that the applicant was remunerated for his work by RTM (AUS) Pty Ltd in accordance with the relevant Australian legislation and awards and that the work was not carried out for an excluded employer.
Given the findings above, the applicant meets cl 417.211(6).
Accordingly, 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
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(6) of Schedule 2 to the Regulations.
Peter Papadopoulos

Member

[2023] AATA 2775

4 September 2023

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