Clazie (Migration)

[2018] AATA 2228

Clazie (Migration) [2018] AATA 2228 (11 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Clazie

CASE NUMBER:  1714801

DIBP REFERENCE(S):  Bcc2017/2067043

MEMBER:Linda Symons

DATE:11 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 11 May 2018 at 4:27pm

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday (Temporary)) – Requirement for “specified work” to be undertaken in “regional Australia” – Applicant employed by a company based in regional Australia – Work undertaken partially overseas and partially in regional Australia – Work conducted in regional Australia less than 3 months full-time – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5), 417.221

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 21 June 2017 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 11 June 2017. 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.417.221.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because he did not continue to satisfy the criteria in cl.417.211(5). On 10 July 2017, he applied to the Tribunal for a review of that decision.  

4. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether the applicant satisfies the requirements of cl.417.221.

7. Clause 417.221(1) requires that the applicant satisfies the criteria in subclauses (2) to (7). The relevant clauses provide as follows:

   Clause 417.221(2):

   The applicant:

   (a)  continues to satisfy the criteria in paragraph 417.211(2)(c) and subclauses 417.211(4) and (5); and

   (b)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013, 4014, 4019 and 4020.

   Clause 417.211(2):

   The applicant:

   (b)  has turned 18 but has not turned 31; and

   (c)  holds a working holiday eligible passport.

   Clause 417.211(4):

   The Minister is satisfied that the applicant:

   (a)  seeks to remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia; and

   (b)  has sufficient money for:

   (i)  the fare to the applicant's intended overseas destination on leaving Australia; and

   (ii)  personal support for the purposes of a working holiday; and

   (c)  has a reasonable prospect of obtaining employment in Australia; and

   (d)  will not be accompanied by dependent children during his or her stay in          Australia.

   Clause 417.211(5):

   If the applicant is, or has previously been, in Australia as the holder of a   Subclass 417 visa, the Minister is satisfied that:

   (a)  the applicant has carried out (whether on a full-time, part-time or casual          basis) a period or periods of specified work in regional Australia as the holder         of the visa; and

   (b)  the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

   (c)  the applicant has been remunerated for the work in accordance with    relevant Australian legislation and awards. 

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

8. Clause 417.211(5) requires, among other things, that at the time of the visa application, the applicant had carried out specified work in regional Australia (whether on a full-time, part-time or casual basis) for a total period or periods equivalent to at least 3 months’ full-time work, as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015. ‘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 16/087.

9. In his application for this visa, the applicant stated that he undertook specified work from 27 February 2017 to 15 June 2017 at postcode 0822. The records of the Department of Home Affairs (the Department) indicate that he departed Australia on 27 February 2017 and re-entered Australia on 24 March 2017, departed Australia on 3 April 2017 and re-entered Australia on 28 April 2017 and departed Australia on 14 May 2017 and re-entered Australia on 10 June 2017. Based on this, the delegate found that the maximum number of days he could have worked in regional Australia was 25 days which was less that the 88 days minimum requirement.

10. The applicant gave evidence to the Tribunal that he was employed as an electrician by Jetstream Electrical Pty Ltd, a Darwin based company, from 27 February 2017 to 29 June 2017. He stated that in the course of his employment with this company he worked on a housing estate in Dili, Timor Leste, as well as for a lighting show in Darwin and at the Court House in Darwin. His evidence of when he worked in Dili is consistent with the records of the Department in relation to when he departed Australia and re-entered Australia. He stated that he worked full time; usually five days a week and sometimes five and a half days a week. He stated that he was paid weekly at the rate of $25.00 per hour.

11. The applicant has provided to the Tribunal a number of supporting documents including payslips from Jetstream Electrical Pty Ltd from 2 March 2017 to 29 June 2017, a Group Certificate for the financial year ending 30 June 2017 and confirmation of flights between Darwin and Dili. These confirmations indicate that he was booked on the following flights:

    Flight TL513 from Dili to Darwin on 24 March 2017

    Flight TL510 from Darwin to Dili on 3 April 2017

    Flight TL 513 from Dili to Darwin on 28 April 2017

    Flight TL510 from Darwin to Dili on 8 May 2017

    Flight TL513 from Dili to Darwin on 10 June 2017

12. During the hearing, the Tribunal discussed with the applicant the requirement that he must have carried out specified work in regional Australia whilst the holder of his s.417 Working Holiday visa. He stated that his employer at Jetstream Electrical Pty Ltd assured him that the work he undertook in Dili met the requirements for his 417 Working Holiday visa. He requested and was granted further time to provide additional evidence to indicate that he satisfied the requirements of cl.417.211(5).

13. Following the hearing, the Tribunal received an undated letter from Mr Matt Stillman, Project Manager, at Jetstream Electrical Pty Ltd. He stated that the applicant had been employed there as an electrician from 27 February 2017 to 28 June 2017. He stated that he was employed in Australia, under an Australian contract and paid into an Australian bank account. He stated that Jetstream Electrical Pty Ltd was working under an Australian contract for a private Australian developer in Dili. He stated that Jetstream Electrical Pty Ltd has employed many backpackers on 417 Working Holiday visas and is registered for sponsorship of 457 visa holders. He stated that he never thought the applicant’s work in Dili would be an issue for his 417 Working Holiday visa as they were working under an Australian contract. 

14. It is clear from cl.417.211(5) that the intention of the legislation is that the work undertaken, whilst the holder of a 417 Working Holiday visa, must be undertaken in regional Australia. Legislative Instrument IMMI 16/087 defines regional Australia as follows:

    2. Specify for the purposes of subitem 1225(5) of Schedule 1 to the Regulations:

    (a)       that a location or State or Territory area postcode listed in the Schedule to             this Instrument is a place in regional Australia.

15. The Schedule of postcodes includes the entire Northern Territory. The location where the work was undertaken is therefore what is relevant. The fact that the applicant was employed in Australia, under an Australian contract and paid into an Australian bank account is immaterial. The Tribunal is accordingly only able to consider the work he undertook in Darwin whilst employed by Jetstream Electrical Pty Ltd. The evidence before the Tribunal indicates that he was in Australia during the following periods whilst employed by Jetstream Electrical Pty Ltd:

    24 March 2017 to 3 April 2017

    28 April 2017 to 14 May 2017

    10 June 2017 to 28 June 2017

16. The maximum number of days the applicant could have worked in regional Australia (Darwin) during these periods is 44 days. The Tribunal is therefore not satisfied that, whilst the holder of a 417 Working Holiday visa, he undertook specified work in regional Australia for a total period of, or equivalent to, at least 3 months full time work. The Tribunal finds that he did not satisfy the requirements of cl.417.211(5) at the time of application.

17. As the applicant did not satisfy the requirements of cl.417.211(5) at the time of application, he does not continue to do so at the time of decision. Therefore, he does not satisfy the requirements of cl.417.221(2) and is unable to satisfy the requirements of cl.417.221 in its entirety.  

18. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Linda Symons

    
    

    Member