Gnoth (Migration)

[2020] AATA 2620

Gnoth (Migration) [2020] AATA 2620 (14 April 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julian Gnoth

CASE NUMBER:  1920577

DIBP REFERENCE(S):  BCC2019/3157001

MEMBER:Michael Judd

DATE AND TIME OF

ORAL DECISION AND REASONS:         14 April 2020 at 11:30 am (WA time)

DATE OF WRITTEN RECORD:                4 May 2020

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) (a) of Schedule 2 to the Regulations.

·cl 417.211(5) of Schedule 2 to the Regulations

Statement made on 04 May 2020 at 11:56am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 Visa – further evidence provided regarding specified regional work– period of three months full time work requirement met – work conducted in regional Australia – decision under review remitted

LEGISLATION

Migration Regulations 1994, Schedule 2, cl 417.211

APPLICATION FOR REVIEW

ORAL DECISION OF MEMBER JUDD  [11:34 am]

MEMBER:  At the beginning of this hearing I explained my roll has a Member of the tribunal in reviewing the delegate’s decision that was made in relation to your application.  The decision was made by the delegate on 9 July 2019.  You had applied for this particular visa on 23 June 2019.  You have applied for tribunal review of that decision.

The tribunal has familiarised itself with the delegate’s decision and I can summarise it as follows.

The delegate acknowledged that on 23 June 2019 you had applied for a working holiday temporary class TZ subclass 417 visa.  You had declared that you had undertaken specified work with the following employer.  M.J. and H. Moylan Pty Ltd, ABN number 45 008 809 970.

You declared that you did that work from 20 October 2018 to 1 March 2019 in the 6410 regional postcode area.  The tribunal accepts that that postcode area is the general area of Kellerberrin. 

You had submitted some evidence in support which included a copy of the relevant passport, payslips, employment verification form 1263, a National Bank transaction statement.  The delegate stated that he or she had taken into account this information.  The delegate acknowledged that the meaning of the term, specified work, is defined as plant and animal cultivation, fishing and pearling, tree farming and felling, mining and construction and referred to the instrument IMMI 17/018.

On the visa application form lodged by you on 23 June 2019 you stated you were employed in the agriculture, forestry and fishing industry by M.J. and H. Moylan trading as Moylan Grain Silos from 20 October 2018 to 1 March 2019.

You indicated that your duties were manufacturing of grain silos, sheep feeders and field bins including cutting, shaping, forming and welding of metals.

The delegate made reference to the Australian and New Zealand standard industrial classification being ANZSIC.  In that particular document it refers to division C being manufacturing, subdivision 22, fabricated metal product manufacturing, group 223, metal container manufacturing and class 2231, boiler, tank and other heavy gauge metal container manufacturing. 

The delegate referred to the manufacturing of silos and tanks and similar as coming within that particular classification.  The delegate was not satisfied that you had carried out a period or periods of specified work in regional Australia as a holder of the visa as prescribed by regulation 417.2115(a).

So they were the reasons the visa was refused.  At the beginning of the hearing, I identified that the hearing was being conducted by telephone.  The reason being the requirement for safety arising from the COVID-19 pandemic.  I explained to you that if you had any concerns as to having a fair and just hearing that you should raise that with the tribunal.  You did not raise it at any stage.  I am satisfied that the hearing was conducted in a fair, just and a quick manner and that you had a fair opportunity to give evidence and present arguments.

You were invited to attend a hearing as I could not make a decision on the papers alone.  The invitation explained that you could attend a hearing to give evidence and provide arguments relating to the issues in your case.  It also explained procedures for providing further evidence and information.

You nominated a witness and that is Mr Corey Moylan being your previous employer and the tribunal received evidence from him also which I will go to in a minute.  The hearing occurred over a period of about one hour and you were not represented.

The tribunal has considered all of the documents and information in relation to your matter including any documents that you have submitted post the delegate’s decision.  The tribunal conducted its own research online into Moylan Grain Silos.  This is from their website.  The website indicates that Moylan Grain Silos is a family owned and operated business with 45 years’ experience in the industry.  The workforce consists of approximately 25 fulltime staff who work with the business to produce the best quality silos on the market.

They have diversified the business to include both field bins and sheep feeders to compliment the silo production.  Staff adopt longer working hours during peak season to ensure that the products can be both produced and delivered.  The vision is to maintain production of a high quality product that is manufactured with ongoing assessment to customer and regulatory requirements together with implementing engineering advancements and provide a delivery service that compliments demand.

In relation to specified work, the relevant instrument was migration IMMI 17/018, working holiday visa specified work and regional Australia instrument 2017.  That is dated 3 August 2017 and it was relevant to the work that you performed for Moylan Grain Silos.  It sets out the postcodes to which the instrument applies and I am satisfied that it applied to the Kellerberrin postcode for that area.

It seeks to define what is specified work and at clause seven it says:

For the purposes of subitem 12255 of schedule two to the regulations, specified work means work of a kind specified in subsections two to six.

Two refers to plant and animal cultivation.  Your work clearly did not relate to that.  Subsection three refers to fishing and pearling.  Again, your work did not apply to that particular subsection.  Four, tree farming and felling.  It did not relate to that area.  Five, mining.  It did not relate to that particular area.  The only other area is construction and subsection six sets out that construction means residential building construction.  Clearly it did not involve residential construction.  Then it says non-residential building construction.  The silos and feed bins, et cetera, were not non-residential buildings.  They are not buildings.  It refers to heavy and civil engineering construction.  I do not accept that the work referred to was heavy and civil engineering construction.

It refers to land development and site preparation services.  That appears not to apply.  It also refers to building structure services, building installation services and building completion services.  Whilst the work did involve some installation and completion and work on structures, they were not buildings per say and that does not apply.

The only other question is 6H which refers to other construction services.  That is the real issue here.  I outlined very briefly the law and at the time that you lodged the visa application, class TZ contained one subclass.  Subclass 417 working holiday.  The criteria are set out in part 417 of schedule two to the migration regulations.  The tribunal explained to you that it had to apply the same laws as the Department delegate did.  For you to have successfully been granted this particular visa, you would need to have established that you had carried out work in Australia as a holder of a subclass 417 visa. 

I am satisfied that on the evidence before me that you did carry out work in Australia and at that time you did hold a subclass 417 visa.  You must have done the work equivalent to at least three months of fulltime work – well, to at least three months of fulltime work and you could have done that on a fulltime or part-time or a casual basis.  Based upon all the evidence before me, I am satisfied that the work that you did was at least three months of fulltime work. 

I am also satisfied that the work was performed in regional Australia including the rural areas in the vicinity of Kellerberrin but also in other areas. 

The issue really is whether the work you did was specified work and in particular whether it was other construction services as I have already discussed. 

So the tribunal received evidence from you.  some evidence was in the form of written material and that was a letter that you had written on 25 July 2019.  In that letter you indicated that your primary activities as a sheet metal worker were not mainly limited to manufacturing grain silos, sheep feeders and field bins but they also included the erection of silos on site including the positioning of silos, including the groundwork which involved the drilling of holes into concrete silo pads and installing anchor bolts to secure silos in place.

They did involve moving silos within farms which also involved loading, unloading and securing and strapping down silos onto company trucks.  It also included testing, servicing and repairing of field bins and silos both in the workplace itself but also at the various farm properties.

In the event of any damage to steel structures, onsite repairs to the silos had to be undertaken by yourself and your supervisors.  You were part of the company service team and you had to construct components to aid in the restoration and repair of steel structures on site.  That has been taken into consideration.

Some evidence was received today.  I received evidence from your previous employer, Mr Corey Moylan who is the principal of the particular company, Moylan Grain Silos.  That has been a family concern business for 48 years.  It had been started by his father.  It is based in Kellerberrin.  He outlined to me that currently there are about 10 overseas workers working for the business.  They are from no particular countries but there are some from Germany, Estonia, Ireland and France. 

He told me that conservatively there would have been 100 to 150 overseas workers over the years.  He then clarified that by saying he believed there could well be more.  The business has been using the overseas workers for over 10 years and there had only been issues in the last six months or so which included your particular matter.

He outlined the importance of overseas workers and that is the obvious situation of Kellerberrin being such a small town with only four or 500 people and the difficulties in sourcing workers during important periods.  He outlined the importance of the business to the rural sector and that it if it was not for the ability to source overseas workers, there were would be difficulties in maintaining supply.

He outlined that the business obtains workers primarily through an employment agency called the Job Shop.  That supplies workers for the hospitality, mining areas but predominantly for the agricultural areas.  It is based in Perth, Kununurra and other areas.  Most of the employment arises through Job Shop, however, sometimes employees are sourced word of mouth such as one employee will refer a friend.  He acknowledged you had worked for two separate periods for him. 

I asked him what is the product of the business and he confirmed that it was grain storage silos, static bins, stock feeders and mobile field bins.  He outlined that the business had supplied product to areas as far away as Kununurra, to the north, Esperance, to the east, to the other side of the town of Southern Cross and there was reference to a client in Tasmania.

Business at the moment is uncertain.  The farmers are looking to go into a seeding program, however there has been insufficient rain as yet.  I then asked him about the particular work that you did and he acknowledged that you were skilled in a few areas which included welding and sheet metal work.  You were also involved in servicing of silos and the delivery of silos to site.  The business has eight trucks which it uses for transporting the product.  He also outlined that the business manufactures circular stock feeders for sheep and cattle.

He indicated that in relation to onsite work, there would usually be a supervisor that would attend with the overseas workers.  He outlined the work that was involved in the erection of silos on site which included the bolting of the silos to concrete pads.

I then received some brief evidence from yourself which was basically confirming what you previous employer had told you.  You had been encouraged to come to Australia through your brother who had also attended Australia on a working holiday visa.  You outlined your experience in Germany, having obtained a bachelor’s degree in industrial engineering. 

You first applied for this visa in March or April of 2018 and it was only a week or so later that the visa had been approved.  Prior to coming onshore, you were generally aware of the conditions of the first visa.  You were aware that you could only work for one employer for six months at a time. 

In relation to the rural work that you performed, it had to be in listed postcode areas and your understanding was that the work would be performed in regional areas but you were not entirely sure about the nature of specified work.

You had worked for Moylan Grain Silos for two different periods.  One from the end of October 2018 to the beginning of March 2019. You had a break for a short period of about three months and you returned between July and October of 2019.

You made it clear to me that you believed that the work that you did perform at Moylan Grain Silos would satisfy the requirements for specified work.  I then asked you what were the duties that you actually performed and you told me that you had been involved in welding steel constructions in house and you described them as being base type work.  You were also involved in the delivery of silos in which you went out with the truckies to various sites.  You were involved in the erection of the silos on site which involved preparing a pad, concreting, drilling holes to secure the silos, positioning and repositioning when requested by the property owner.  You believe 60 to 70 per cent of your work was delivery work and installation work which was offsite.

You confirmed you yourself had travelled as far away as Esperance which would be about six or seven hours from Kellerberrin.  Whilst working in Kellerberrin, you stayed at the Kellerberrin Caravan Park.  At the time you worked there, there were maybe five to 10 overseas workers.

You told me that the form 1263 that you had originally filled was already prefilled and believed that that was done by a person at the front desk or reception area of the business.

That was the total of the evidence in this particular matter.

I listened carefully to what your employer said and I contrasted that with your evidence.  I did not identify any particular issues as to the credibility of what I was being told.  I am satisfied that you did do this work and that it did involve an element of manufacture from base materials, steel and other construction materials or manufacturing materials.  You had the skills to do that.  That was not solely your work.

Your work was actually to follow the product through from point of manufacture to point of installation.  You also had a responsibility for the maintenance of the product also and for reinstalling at different areas of properties. 

I have looked at the instrument and while it does refer to building construction, engineering construction, land development and site preparation, building structure, building installation, building completion, it has that other coverall provision which is other construction services.  As I have said, that is a catch-all so that other construction services that are not covered may be covered by that provision.

In my view, what you actually did and viewed quite broadly would come under the other construction services in that you were providing a service with
involved not only the making of the product but the transporting of the product and also the installation of the product.  That should be considered to be construction in my view.

So following consideration of all of the documentary evidence and all of the evidence at the hearing, I am satisfied as to the following matters.  That you did carry out work in Australia as a holder of a subclass 417 visa.  Whilst I am not required to make a finding on this, that you did do work equivalent to at least three months of fulltime work.  That you did do the work in regional Australia and I am satisfied that it would be viewed as specified work as defined by the instrument as I have said for the following reasons.

I am satisfied that you do meet the criteria for the grant of the visa and the decision is that I remit the matter or the application for the working holiday temporary class TZ visa for reconsideration with the direction that you do meet the criteria for a subclass 417 working holiday visa and that is the decision.

END OF ORAL DECISION

Michael Judd
Member