Buchanan (Migration)

[2020] AATA 2710

Buchanan (Migration) [2020] AATA 2710 (19 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mark Buchanan

CASE NUMBER:  1806723

DIBP REFERENCE(S):  BCC2017/5014384 CLF2018/39815

MEMBER:Karen Synon

DATE:19 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

·cl.407.217(a)

Statement made on 19 June 2020 at 5:46pm

CATCHWORDS

MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – genuine temporary entrant – breach of condition of previous working holiday visa – not to work for any one employer for more than six months – work for two related companies – departmental policy exception for work in high-demand industries in northern Australia – different mining contractors and project sites – six-month period resets with each substantive and bridging visa – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 407.217(a), Schedule 8, condition 8547

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 23 February 2018 to refuse to grant the visa applicant a Training (Class GF) Subclass 407 visa under s.65 of the Migration Act 1958 (the Act).

2. The criteria for a Training (Class GF) Subclass 407 visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations

3. The visa applicant applied for the visa on 30 December 2017.  The delegate refused to grant the visa on the basis that cl.407.217(a) was not met because he found that the applicant breached condition 8547 on his previously granted Working Holiday Subclass 417 visa.

4. The applicant was represented in relation to the review by his registered migration agent.

5. On 13 May 2020 the Tribunal invited the applicant to a hearing to give evidence and present arguments on 2 June 2020.  On 25 May 2020 the applicant appointed a new representative and, on this basis, asked that the hearing be postponed.  The Tribunal agreed to this request and the hearing was rescheduled until 16 June 2020.

6. Relevantly on 10 June 2020 a detailed submission[1] and the following supporting documents were received.

   ·     Screen shots of the applicant’s visa history and movement records;

   ·     Australian Securities and Investment Commission (ASIC) records in relation to ‘Auger Australia’ which holds the business name ‘GYRO AUSTRALIA PTY LTD’;

   ·     The Overview of a paper (undated) published by the Australian Government, titled ‘Our North, Our Future; White Paper on Developing Northern Australia.  Excerpts highlighted are: ‘allowing backpackers to work for 12 months (instead of six) with a single northern employer’ and ‘allow working holiday maker visa holders to work for longer in northern Australia’;

   ·     A copy of the Department’s natural justice letter issued on 24 January 2018;

   ·     A copy of the applicant’s previous representative’s submission, made in response to the Department’s natural justice letter, in which she states “the visa applicant would also like to acknowledge that GYRO and AUGER are related companies and have the same ABN.  This is something that the visa applicant was not previously and personally aware of and as such he failed to notify the Department that he intended working for a related company which would have been a breach of the 6 months work limitation on his Working Holiday visa.  The visa applicant regrets this and requests the Department’s indulgence to waive the apparent breach of 6 months employment with one employer condition which he acknowledges’;

   ·     Extracts from the Department’s Integrated Client Services Environment (ICSE) database;

   ·     A copy of a document titled ‘Training Matrix Spatial Scientist Surveyor’;

   ·     A copy of the Department’s approval of the subclass 407 Nomination, in respect of the applicant, for the occupation of ‘Science Technicians nec’; and

   ·     The applicant’s Curriculum Vitae;

   [1] Considered below.

7. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour based on the material before it.  Therefore, the hearing scheduled for 16 June 2020 was cancelled.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is cl.407.217(a).

   Genuine intention to stay temporarily – cl.407.217

10. It is a common criterion for the grant of a Subclass 407 visa that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted: cl.407.217.  In assessing this, the Tribunal must have regard to the following:

    (a)if the applicant has held a substantive visa – whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and

    (b)whether the applicant intends to comply with the conditions to which the Subclass 407 visa would be subject; and

    (c)any other relevant matter.

11. In the present case, the applicant seeks the visa for the purpose of training as a ‘Spatial Scientist Surveyor’ with GYRO AUSTRALIA PTY LTD (‘Gyro’).

12. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa: cl.407.217(a).

13. The primary decision records that the applicant breached condition 8547 which was attached to his previous 417 Working Holiday visa.  This was based on a submission the applicant’s previous representative made to the Department in which she conceded that the applicant had worked for two related companies, with the same Australian Business Number (ABN) being GYRO and AUGER and this was a breach of condition 8547.

14. A review of the Department records reveals that the following conditions were applied to the applicant’s previously held visas:

    ·Working Holiday   TZ-417 granted 25 Dec 2015 until 13 Jan 2017 – Conditions 8547 and 8548

    ·Bridging Visa A     granted 3 Nov 2016 valid until 30 Nov 2016 – Condition 8547

    ·Bridging Visa B     granted 30 Nov 2016 valid until 1 June 2017     Condition 8547

    ·Working Holiday   TZ-417  granted 17 July 2017 until 25 July 2018 – Conditions 8547 and 8548

    ·Bridging Visa A     granted 30 Dec 2017 valid until 16 Oct 2018 – Condition 8547

    ·Bridging Visa B     granted 16 Oct 2018 valid until 27 May 2019 – Condition 8547

    ·Bridging Visa B     granted 27 May 2019 and ongoing– Condition 8547

15. Relevantly Condition 8547 provides:

    The holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.

16. The Department’s policy instruction[2] relevantly sets out the following advice to its decision makers:

    [2]Policy and Operational documents – All Stacks – 17/05/2020 – Policy – Migration – Schedules – [Sch8/8547] Schedule 8 – Condition 8547 6-month work limitation and Instruction- 3.1- Working Holiday Maker visa program and condition 8547.

    The purpose of the WHM visa program is to foster people-to-people links between Australia and partner countries by allowing young people to have an extended holiday in each other’s country during which they may undertake short-term employment. Work in most cases is limited by condition 8547 to a maximum of six months with any one employer. Permission to work longer than six months with one employer is given only in limited circumstances…This [policy instruction] gives guidance in relation to compliance with condition 8547 and in relation to considering requests from WHMs for permission to work longer than six months with any one employer.

    3.2. Employment in compliance with condition 8547

    Policy intends that WHMs should be allowed to undertake short-term work while holidaying in and travelling around Australia for up to 12 months, rather than take up long‑term employment. This policy is implemented through the imposition of condition 8547.

    Condition 8547 is taken to mean that the sum of any periods of employment with the same employer operating in Australia is not to exceed six calendar months.

    Note: Persons granted a second WHM visa may return to work for a further six months for an employer with whom they worked on their first visa…

    Meaning of “six (6) months”

    For condition 8547, the calculation of six months’ work starts from the day the visa holder starts work or begins training for a specific role.  The six‑month period is based on the length of time that has passed since employment began, not how many hours or days have been worked.

    If the visa holder is not in an ongoing employment relationship, this period need not be continuous.  A visa holder may, for example, be employed for three months, followed by a two‑month period of travel (during which time there is no ongoing employment arrangement), and return to the same employer for a further three months.

    However, breaks between periods of work in circumstances where the employment arrangement is ongoing – for example, where paid or unpaid leave was granted – count toward the six‑month total.

    Visa holders wanting to determine whether they are in an employment relationship under the general law should be advised to seek independent advice.

    Condition 8547 applies to all work, regardless of whether it is full-time, part-time, casual, shift or voluntary

    Meaning of “one employer”

    For the purpose of condition 8547, the term “employer” means the business or organisation for which the visa holder is directly working – that is, the end user.

    Generally, separate businesses (for example, with different Australian Business Numbers (ABNs)) may be considered different employers for the purpose of condition 8547.

    oIn circumstances where there has been a change of name or of underlying ownership, working for a business for longer than six months would generally be considered a continuation of employment with the same employer.

    oHowever, if a new company has been created – for example, with a new ABN – the new company would be a new employer, even if the duties for the new company are similar to those performed for the old company. Working for the new company with a new ABN for six months would not be considered a breach of condition 8547.

    A visa holder may be employed by the same labour hire company or contractor for more than six months but may not provide services to the same end user for more than six months.  For example, a visa holder may be employed by a State/Territory Department of Education or Department of Health for more than six months but may not provide services to the same school or health care facility for more than six months.

    A visa holder may also be employed by the same end user for a combined total of more than six months, provided the work is undertaken in different locations and work in any one location does not exceed six months (see Circumstances in which WHMs are taken to have permission to work longer than six months with one employer).

    It would be considered a breach of condition 8547 for a visa holder to stay with the same end user longer than six months by using different employment agencies, business affiliates or sub-contracting arrangements or by changing roles within the organisation.

    Meaning of “employment”

    A visa holder is considered to be “employed” if they are undertaking work, which is defined in regulation 1.03 as “activity that, in Australia, normally attracts remuneration”….

    For the purpose of condition 8547, workplace training is considered to be employment, not study or training, and will count towards the six‑month limit…

    Circumstances in which WHMs are taken to have permission to work longer than six months with one employer

    Government initiatives aimed at addressing labour shortages allow WHMs to work longer than six months with one employer in certain regions and industries.  As a matter of government policy, WHMs who work in the following circumstances are taken to have permission to work longer than six months with one employer and do not need to request it.

    ·Work in certain high-demand industries in Northern Australia only

    This measure was introduced under the Australian Government’s 2015 White Paper on Developing Northern Australia.

    ·Work in different locations, where work in any one location does not exceed six months

    This measure was announced by the Treasurer in September 2016, with the introduction of more flexible arrangements to support WHMs and industry.

    ·Plant and animal cultivation work anywhere in Australia

    This was part of a package of measures announced in November 2018 to support regional and rural economies

17. Department policy also notes, in relation to bridging visas[3]:

    Six-month employment limitation starts again

    A former WHM who becomes the holder of a WA-010 Bridging A visa (BVA) (or WB-020 Bridging B visa (BVB)) that is subject to condition 8547 must comply with the employment limitation as described above.

    However, as the condition is attached to individual visas, the six‑month employment limitation commences again when the bridging visa comes into effect.  This means that a person who worked for an employer for up to six months while holding a WHM visa may work for that same employer for up to another six months on their bridging visa.

    [3]Policy and Operational documents - All Stacks – 17/05/2020 – Policy – Migration Regulations – Schedules – [Sch8/8547] Schedule 8 – Condition 8547 – 6-month work limitation at 3.4.

18. The applicant’s representative has relevantly submitted that there are 3 aspects of above Department’s policy which, if applied, lead to a conclusion that the applicant did not breach condition 8547.  These are:

Condition 8527 and bridging visas

Policy outlines that a former working holiday visa holder who becomes the holder of a Bridging A visa (BVA) or Bridging B visa (BVB), that is subject to condition 8547 must comply with the employment limitation as described above.

However, as the condition is attached to individual visas, the 6 month employment limitation commences again when the bridging visa comes into effect.  This means that a person who worked for an employer for up to 6 months while holding the working holiday visa may work for that same employer for up to another 6 months on each of their bridging visas.

There is no breach of condition 8547 between the period of 14 Jan 2017 and 30 Dec 2017 in consideration of the timeline above and the re-set of the 6-month limitation upon each new visa grant.

Work in high demand industry in Northern Australia

Government initiatives aimed at addressing labour shortages allow Working Holiday Makers to work longer than six months with one employer in certain regions and industries.  As a matter of government policy, WHMs who work in the following circumstances are taken to have permission to work longer than six months with one employer and do not need to request it.

These circumstances include work in certain industries in northern Australia.  The Australian New Zealand Standard Industrial Classification is referred to for classifications of “specified work” under the mining division.  It is noted that “ class 1090 - other mining support services” includes primary activities such as directional drilling.

In Western Australia all areas north of the tropic of Capricorn are included in the definition of “northern Australia”

The Applicant was employed by one entity, Gyro Australia Pty Ltd T/A Auger Australia (“Gyro”).  However he was placed on different client mining site locations throughout the period of employment from Jan 2016 to date.

Most notably, the Applicant was engaged on surveying & drilling projects in the Pilbara (WA 6721), Marble Bar (WA 6760), Telfer (6762) and West Musgrave (0872), with these post codes falling under the northern Australia exemption.  Project timing outlined [below]:

17 to 28 Jun 2016	Pilbara Minerals	WA 6721
31 Oct to 6th Nov 2017	Pilbara Minerals	WA 6721
07 to 25 Nov 2017	Creasy Group Nullagine	WA 6758
09 to 26 Mar 2017	Nacap Wodgina	WA 6760
22 to 28 May 2018	Metals X – Nifty Mine Site	WA 6762
20 Aug to 03 Sep 2018 (Ongoing)	Cassini Resources West Musgrave	WA 0872
29  Nov to 20 Dec 2018	De Grey Minerals Port Hedland	WA 6721
05 to 19 Jan 2019	Nacap Wodgina	WA 6760
08 to 17 Mar 2020	Element 25 Kumarina	WA 6642
22 Mar to 05 Apr 2020	Yandal Resources Wiluna	WA 6646

This was the exemption was alluded to in the submission provided by the Applicant’s migration agent at the time of response to the request for information...Unfortunately there appears to be a miscommunication in this statement and it was requested that “the breach was waived under these circumstances”, when it should have been stated an exemption already applies.  There was no need to request a waiver for this period as according to policy the Applicant was a taken to have permission in these circumstances and in fact there was no breach due to the location of each project worked on and the individual visas held.

The Applicant first entered Australia 13 Jan 2016, the exemption outlined above was introduced under the Australian Government’s 2015 White Paper on Developing Northern Australia…The exemption was in place for the duration of the applicant’s time in Australia and should have been considered and applied accordingly in assessing compliance with condition 8547.

Work in high demand industry in Northern Australia

Under the initiative outlined above, the Treasurer also announced a further exemption in September 2016, outlining that:

A visa holder may also be employed by the same end user for a combined total of more than six months, provided work is undertaken in different locations and work in any one location does not exceed six months.  Again WHMs are taken to have permission in this instance and a request for permission is not required.

The submission summarised the applicant’s employment with Gyro and the different projects and locations he worked on since commencing in January 2016 as follows:

Dates	Contractor/Project Site	Location
16 Jan 2016 – Ongoing	Paddington Gold	Goldfields WA 6430
16 Jan 2016 – Ongoing (Callouts)	Sandfire Resources – DeGrussa Copper Mine (underground work)	Meekatharra WA 6642
16 Jan 2016 – Ongoing	Evolution Mining – Frogs Leg Mine Kalgoorlie (underground work)	Mount Burges WA 6429
16 Jan 2016 – Ongoing	KCGM  - Super Pit – Boulder	Fimiston WA 6432
16 Jan 2016 – Ongoing	Cassini Resources – West Musgrave Project	West Musgrave WA 0872
22nd to 28th May 2018	Metals X – Nifty Copper Mine (underground work)	Telfar WA 6762
07 to 13 Jun 2019 Drilling 08 to 11 Oct 2018; Surveying	Galaxy Resources – Ravensthorpe project	Ravensthrope WA 6346
11 July 2018 – Ongoing	St Ives – Gold fields (multiple)	Widgiemooltha WA 6443
16 Jan 2016 – Ongoing	Bardoc Gold – Bardoc Gold Project	Eastern Goldfields WA 643
16 Jan 2016 – Ongoing	Dacian Gold – Mt Morgans Project	Laverton WA 6440
16 Jan 2016 – Ongoing	St Barbara’s Mining – Gwalia Mine Site	Leonora WA 6438
16 Jan 2016 – Ongoing	Northern Star – Kundana Project	Eastern Goldfields
14 Aug 2019 – Ongoing	FMG	Pilbara
14 Aug 2019 – Ongoing	Gold Road	Goldfields
7 Oct 2019 – Ongoing	Ora Banda Mining	Eastern Goldfields
29th Nov to 20th Dec 201 (sic)	De Grey Mining	Pilbara region

1. While the Tribunal notes that it is not bound to apply Department policy, in the circumstances of this case, it sees no reason to depart from it.  Therefore, while not elevating policy to the level of the legislation and because ambiguity exits in relation to the issue of whether Condition 8547 applies in a consecutive and cumulative way, the Tribunal has determined that it is appropriate and logical to favour a beneficial construction to this criterion.  For this reason it accepts that Condition 8547, which was applied to each of the applicant’s working holiday and bridging visas, resets with each grant.  Therefore while the Tribunal agrees that the applicant worked for the same company with the same ABN for almost 2 years at the time of the primary decision, it does not agree that, for this reason, he consequently breached Condition 8547.

2. The Tribunal has determined that for the same reasons, it is also appropriate to have regard to the other policy provisions in relation to work in Northern Australia and work in different locations for the same employer.

3. In relation to the policy exemption for work performed in Northern Australia, the Tribunal has referred to the full report of the Federal Government Titled ‘Our North, Our Future: White Paper on Developing Northern Australia’[4] which at page 146 defines Northern Australia as anywhere above the Tropic of Capricorn.  It lists the main centres in Northern Australia as: Port Hedland; Mount Isa; Alice Springs; Rockhampton; Townsville; Cairns; Broome; and Darwin.

   [4]<>

   The Department’s website[5] provides clarification relevantly advising:

   [5]< in certain industries in northern Australia only

   You do not need to ask our permission to work longer than six months with one employer in Northern Australia if you work in the following industries:

   ·    Aged Care and Disability Services

   ·    Fishing and pearling

   ·    Tree farming and felling

   ·    Construction

   ·    Mining

   ·    Tourism and Hospitality

4. Mining[6] is described as:

   ·coal mining

   ·oil and gas extraction

   ·metal ore mining

   ·construction material mining

   ·non-metallic mineral mining and quarrying exploration

   ·mining support services

   [6] Ibid.

5. In considering whether the applicant did perform work in the designated area of Northern Australia, the Tribunal has referred to the postcodes identified in the submission: 0872, 6346, 6429, 6430, 6432, 6438, 6440, 6443, 6642, 6646, 6721, 6760, 6758, 6762 and 6872.

6. The applicable postcodes for designated areas north of the Tropic of Capricorn in Western Australia are:[7] 0872, 6537,6642, 6646, 6701, 6705, 6707, 6710 to 6714, 6716, 6718, 6720 to 6722, 6725 to 6726, 6728, 6740, 6743, 6751, 6753 to 6754, 6758, 6760, 6762, 6765 and 6770.

   [7]Ibid.

7. Therefore the work the applicant performed in postcodes 6346, 6429, 6430, 6432, 6438, 6440, 6443 do not fall under the Northern Australia exemption.  This work relates to the following periods:

   ·  16 January 2016 and ongoing in postcodes: 6430 6429, 6432, 6440, and 6483; and

   ·  11 July 2018 and ongoing in postcode 6442.

8. However the Tribunal notes that each of these periods of work were subsequent to the further policy provision, introduced with effect from September 2016, that ‘a visa holder may also be employed by the same end user for a combined total of more than six months, provided the work is undertaken in different locations and work in any one location does not exceed six months’.

9. It follows that the Tribunal is satisfied that the applicant did not breach Condition 8547 which was attached to each of his previously held Working Holiday and bridging visas.

10. As there is no information available to the Tribunal that the applicant did not comply with condition 8548, it follows that the Tribunal is satisfied the applicant meets cl.407.217(a).

11. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION:

12. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

    ·cl.407.217(a)

    Karen Synon
    Member