Creagh (Migration)

[2020] AATA 3793

Creagh (Migration) [2020] AATA 3793 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sean Creagh

CASE NUMBER:  1924797

HOME AFFAIRS REFERENCE(S):          BCC2019/3171969

MEMBER:Justine Clarke

DATE:10 September 2020

PLACE OF DECISION:  Melbourne

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 10 September 2020 at 4:34pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia for three months – work duties can be described as ‘construction’ or ‘mining support services’ – days and hours worked – remuneration – other backpackers who did the same work had visas granted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211

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 Home Affairs on 28 August 2019 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. On 24 June 2019, the applicant applied for the visa. 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), which was extracted in the primary decision.

3. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5)(a) and (b). With respect to cl.417.211(5)(a), the applicant did not consider that the work carried out by the applicant for Douglas Partners Pty Ltd was ‘specified work’ as defined by the Minister in IMMI 17/018. With respect to cl.417.211(5)(b), the delegate was not satisfied that the total period of work carried out for other employers—being Wadda Farms Pty Ltd; RMC Farming Enterprises; and Drake International—was, or was equivalent to, at least 3 months full-time work. The delegate made no findings with respect to cl.417.211(5)(c).    

4. On 4 September 2019, the applicant applied to the Tribunal for review of the primary decision. The applicant has not been represented in this review.

5. The Tribunal notes that the applicant has provided further documentary evidence to the Tribunal, than what was provided to the Department, in support of the review.

6. On 9 September 2020, the applicant appeared before the Tribunal, by telephone from Sydney, to give evidence and present arguments. The Tribunal also received oral evidence from Ms Clare Whelan, also by telephone, from Darwin.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether, at the time the application was made for the visa on 24 June 2019, the applicant met cl.417.211(5).

   Clause 417.211(5)(a)—Has the applicant carried out a period or periods of specified work in regional Australia as the holder of the visa?

9. Clause 417.211(5)(a) requires that, at the time of the visa application, the applicant has carried out specified work in regional Australia (whether on a full-time, part-time or casual basis) as the holder of a Subclass 417 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 17/018.

10. In his application for the visa, the applicant claimed that he had worked:

    ·in regional postcode 4860 (in Queensland) at ABN 27169077758 (Wadda Farms Pty Ltd) between 13 February 2019 and 26 February 2019;

    ·in regional postcode 4871 (in Queensland) at ABN 24574020171 (RMC Farming Enterprises) between 20 February 2019 to 21 February 2019;

    ·in regional postcode 0828 (in the Northern Territory) at ABN 42004939771 (Drake International) between 4 March 2019 and 26 May 2019; and

    ·in regional postcode 0810 (in the Northern Territory) at ABN 75053980117 (Douglas Partners Pty Ltd) between 11 March 2019 to 21 June 2019.

11. The Tribunal has reviewed the places for the purposes of the definition of ‘regional Australia’ in subitem 1225(5) of Schedule 1 to the Regulations and is satisfied that postcodes 4860 and 4871 and the entire Northern Territory are included in the legislative instrument.

12. The key issue for determination is whether the work that the applicant carried out for all four companies could be said to be specified work as defined in IMMI 17/018.

13. In the record of responses in his application for the visa, the applicant said that in respect of:

    ·ABN 27169077758 (Wadda Farms Pty Ltd), the work was in the agriculture, forestry and fishing industry and that he had ‘worked in banana shed on factory line’;

    ·ABN 24574020171 (RMC Farming Enterprises), the work was in the agriculture, forestry and fishing industry and that he had ‘picked paw paws with farmer’;

    ·ABN 42004939771 (Drake International), the work was in the construction industry and that, as a bitumen labourer, his duties had included ‘assisting lead hand laying bitumen on roads and patch work throughout Darwin and surrounding suburbs’; and

    ·ABN 75053980117 (Douglas Partners Pty Ltd), the work was in the construction industry and that his duties had included ‘site visits to collect samples for investigation work. Carry out tests on soil. Concrete testing pre pours’.

14. IMMI 17/018 relevantly provides:

    (1) For the purposes of subitem 1225(5) of Schedule 1 to the Regulations, specified work means work of a kind specified in subsections (2) to (6).

    (2)       Plant and animal cultivation:

    (a)       the harvesting and/or packing of fruit and vegetable crops;

    …

    (e)       immediate processing of plant products;

    …

    …

    (5)        Mining:

    …

    (g)       mining support services.

    (6)       Construction:

    …

    (c)       heavy and civil engineering construction;

    (d)       land development and site preparation services;

    …

    (h)       other construction services.

15. In this review, the applicant has submitted that the work he undertook for Douglas Partners Pty Ltd could also be described as being ‘mining support services’ and thus could also be said to have been within the mining industry.

16. At the hearing, the applicant gave detailed oral evidence about the work he undertook at all four places of employment during the relevant periods, including his reasons for leaving Queensland and travelling to the Northern Territory for work. He said that he had not been getting sufficient days of work in Queensland. He said that at Wadda Farms, he was only able to get 2–3 days of work each week ‘hanging banannas’, and that at RMC Farming Enterprises, there was only one day a week available to help the farmer pick mangoes from the back of the tractor and then clean them. He explained that the worker hostel, which organised which farms backpackers such as himself were to be sent each day, had told him information about the requirements for the visa which he considered to be incorrect. He said that it was his desire to do everything properly and that is why he left Queensland and sought work in the Northern Territory.

17. He said that he was not given sufficient hours and days of work as an asphalt labourer at Drake International either, so that is why he went to work at Douglas Partners.

18. He expressed his dismay at having contacted the Department by telephone in order to check whether the work he planned to do at Douglas Partners would fulfil the requirements and not having been given a clear answer. He said that he was aware that other backpackers had worked at Douglas Partners, doing the same work that he had done, and that they had been granted their Working Holiday visas—including one person who worked there after him.

19. He submitted that the work he undertook at Douglas Partners clearly falls within the type of work outlined in the legislative instrument. He said that he had undertaken work onsite to prepare that land, including collecting soil from the land and then testing that soil in the laboratory. He had also tested concrete. He also noted that the company undertook mining support services, explaining that some mines sent soil to the laboratory, when he then tested. He stated words to the effect that ‘all the detail is in the letters that I’ve sent you’.

20. Clare Whelan gave oral evidence that she worked for Douglas Partners as the Laboratory Manager of the soil laboratory. She outlined in detail the work that the applicant undertook while working at Douglas Partners and, when asked, told the Tribunal that she believed ‘100%’ that the work that the applicant undertook did fall within the particular categories of mining and construction that are detailed in the legislative instrument. She also told the Tribunal that other backpackers who had done the same type of work as the applicant had been granted their visas and that, to her knowledge, the company had not had such a problem before. She named three people whom she said had done similar work and who had had no problems.

21. The Tribunal found both the applicant and Ms Whelan to be highly credible and accepts their oral evidence.

22. Having heard and accepted the oral evidence, supported by various documents submitted to both the Department and to the Tribunal, the Tribunal accepts that the applicant’s work undertaken at all four places of employment comes within the definition of specified work in IMMI 17/018 on the basis of the various paragraphs extracted above. 

23. The Department’s records support a finding that the applicant was the holder of a Subclass 417 visa at all material times.

24. Therefore, the applicant satisfies cl.417.211(5)(a).

    Clause 417.211(5)(b)—Is the total period of the work carried out at least 3 months?

25. Clause 417.211(5)(b) requires the applicant to have carried out the afore-mentioned specified work for a total period or periods equivalent to at least 3 months’ full-time work.

26. As set out in the Department’s Procedural Instructions, ‘[u]nder policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year’.

27. In addition, there is discussion in the Procedural Instructions about what is meant by one full day of work: reference is to be had to the minimum number of hours considered to be a standard day by the relevant industry. There is also this statement: ‘[i]f the employer is satisfied that the applicant has undertaken the equivalent of full time work for that industry for the specified period, [decision-makers] may be satisfied that the applicant has undertaken full time work for the specified period’.

28. In the record of responses in his application for the visa, the applicant said that, in respect of:

    ·ABN 27169077758 (Wadda Farms Pty Ltd), he had worked a total of 17 hours over four days;

    ·ABN 24574020171 (RMC Farming Enterprises), he had worked a total of 9 hours on one day;

    ·ABN 42004939771 (Drake International), he had worked a total of 166 hours over 28 days; and

    ·ABN 75053980117 (Douglas Partners Pty Ltd), he had worked a total of 270 hours over 55 days.

29. This totals 88 days. The Tribunal notes the various documents submitted in support of these claims.

30. Having considered all the evidence before it, the Tribunal finds that the applicant satisfies cl.417.211(5)(b) because the total period of work carried out by the applicant is equivalent to at least three months of full-time work.

    Clause 417.211(5)(c)—Has the applicant been remunerated for the work in accordance with relevant Australian legislation and awards?

31. Clause 417.211(5)(c) requires the applicant to have been remunerated in accordance with relevant Australian legislation and awards for the afore-mentioned specified work.

32. In the record of responses in his application for the visa, the applicant said that, in respect of:

    ·ABN 27169077758 (Wadda Farms Pty Ltd), he had been paid $23.66 per hour;

    ·ABN 24574020171 (RMC Farming Enterprises), he had been paid $23.66 per hour;

    ·ABN 42004939771 (Drake International), he had had been paid $26 per hour; and

    ·ABN 75053980117 (Douglas Partners Pty Ltd), he had been paid $27.11 per hour.

33. The applicant gave consistent oral evidence at the hearing. He maintains that he was remunerated in accordance with relevant Australian legislation and awards. For example, he told the Tribunal that the wages paid at Wadda Farms Pty Ltd and RMC Farming Enterprises had been paid in accordance with the Award and that the wages paid at Douglas Partners were above the relevant Award.

34. Having considered all the evidence before it, the Tribunal finds that the applicant satisfies cl.417.211(5)(c).

    CONCLUSION

35. The applicant satisfied cl.417.211(5).

36. 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

37. 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.

    Justine Clarke

    
    

    Member