Griffin (Migration)

[2023] AATA 1300

Griffin (Migration) [2023] AATA 1300 (23 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Griffin

CASE NUMBER:  2109011

HOME AFFAIRS REFERENCE(S):          BCC2021/291059

MEMBER:Mara Moustafine

DATE:23 January 2023

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 23 January 2023 at 12:34pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ‘specified Subclass 417 work’ – LIN 20/182 – ‘critical COVID-19 work in the healthcare and medical sectors’ – ‘support services’ – support officer for Bupa Medical Services – customer contact call centre – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15FAA; 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 7 July 2021 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Ireland and is 29 years old. He arrived in Australia on 6 September 2018 as the holder of a working holiday visa granted on 12 May 2018 which ceased on 6 September 2019. He was granted a second Working Holiday visa on 1 November 2019 which ceased on 6 September 2020. On 23 December 2020 the applicant was granted a Subclass 408 COVID-19 pandemic event visa which ceased on 28 February 2021.

3. The applicant applied for a third Working Holiday (Temporary) (Class TZ) visa on 27 February 2021. He provided copies of the biodata page of his Irish passport, a bank statement showing an available balance of $3600, a statement of earnings report from 6 July 2020 to 19 February 2021, a work reference from Team Leader Central Support Contact Centre Team Leader BUPA Medical Visa Services dated 25 February 2021 confirming his employment from 6 July to 18 December 2020.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(6)(a) of the Migration Regulations 1994 (Cth) (the Regulations). The delegate was not satisfied that the applicant had carried out ‘specified Subclass 417 work’ as the holder of a working holiday visa.

5. The delegate considered the work the applicant had carried out as a support officer for Bupa Medical Services was not ‘critical COVID-19 work in the healthcare and medical sectors’ and thus did not meet the description of ‘specified Subclass 417 work’ for the purposes of the visa grant.

6. On 14 July 2021 the applicant applied to the Tribunal for a review of the delegate’s decision, a copy of which he provided to the Tribunal for the purpose of the review.

7. Additional relevant documents provided to the Tribunal in support of his application included:

   a.a submission from the applicant dated 2 February 2022 setting out his migration history and describing his ‘specified work’ as follows:

   Towards the end of my second year Covid-19 became the global pandemic it is now, at the time I was working for Bupa Medical Services as a support officer and my main role was booking visa applicants in for their medical tests in relation to their visas and uploading these results to the relevant government bodies.

   When Covid became a major issue for Australia and Industries shut down, myself and my colleagues were instructed by our manager that our work was deemed essential and critical work during this time in relation to Covid-19 (support evidence supplied in written letter from manager).

   In our roles we needed to then alter appointments due to applicants getting covid and needed to ensure nobody with covid was booking in for an appointment at the clinics. During this period my 2nd year WHV finished and I applied for a 408 covid visa which was granted and I continued to

   work in my role.

   Shortly after this period I applied for my 3rd year working holiday visa (27/2/2021) under the condition that I had completed 6 months’ work in an essential sector doing critical work as this was stated as a reason someone could apply for a third working holiday visa.

   …. I believe my past and current role fall under ‘support services’, the legislative instrument, in my submission, provides a broad interpretation of support services, as it follows with ‘..Such as’, leaving open the definition of support services, which I submit, I fall under as per my roles.

   b.A Confirmation of Employment letter from the Contact Centre Team Leader at Bupa Medical Services dated 13 January 2022 confirming the applicant’s employment as Customer Services Adviser on a six month contract from 6 July 2022 and stating that:

   during this time we were deemed as essential workers for critical work to help process Customer Visa Medicals as per the direction from the Department of Home Affairs.

   c.A document containing supporting Evidence from Home Affairs and other related websites to demonstrate how the applicant’s work was related to Covid-19 response.

8. The applicant appeared before the Tribunal by MS Teams videoconference on 23 January 2023 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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).

11. The issue in this case is whether the applicant has carried out specified work.

    Has the applicant carried out specified Subclass 417 work?

12. Clause 417.211(6) requires that, at the time 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 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.

13. ‘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. Any work carried out before 14 November 2020 that was ‘specified work in regional Australia’ is taken to be ‘specified Subclass 417 work’ and the instruments specifying a place for the purposes of ‘regional Australia’ and kinds of work for ‘specified work’ that were in force immediately before 14 November 2020 continue to be in force as if they were made under reg 1.15FAA (see cls 9201(2)–(3) of Schedule 13 to the Regulations).

14. The applicable instrument is LIN 20/182 which commenced on 18 August 2020. The instrument provides that critical COVID work in the healthcare and medical sectors falls within the definition of specified work and each place occupying any Australian postcode is specified for the definition of regional Australia. The instrument provides:

    …….

    9  Critical COVID-19 work in the healthcare and medical sectors

    (1)     For the definition of specified work in subitem 1225(5) of Schedule 1 to the Regulations, critical COVID-19 work in the healthcare and medical sectors, carried out after 31 January 2020, including but not limited to work mentioned in paragraph (a) or (b), is specified:

    (a)     medical treatment, nursing, contact tracing, testing and research;

    (b)     support services such as cleaning of medical and health care facilities and equipment.

    (2)      For the definition of regional Australiain subitem 1225(5) of Schedule 1 to the Regulations, each place occupying any Australian postcode area is specified for the kinds of work specified in subsection (1).

15. Based on his submission and supporting documents the Tribunal accepts that, while holding his second Working Holiday visa, the applicant carried out work as a support officer or customer services adviser in the Contact Centre at Bupa Medical Services in Sydney from 6 July to 18 December 2020.

16. The applicant has claimed that this work was ‘specified Subclass 417 work’: Critical COVID-19 work in the healthcare and medical sectors, as set out in the instrument LIN 20/182, falling under ‘support services’. He submitted that the instrument ‘provides a broad interpretation of support services, as it follows with ‘..such as’, leaving open the definition of support services’.

17. At hearing the applicant outlined his work and migration history in Australia, as well as his specific role with Bupa Medical Services in Sydney from July to December 2021. The applicant confirmed that he was a support officer in a customer contact call centre and said he initially worked from the Sydney office but for the last 3 months from home. He claimed that he took on the role because he was told that it was deemed to be ‘critical work’ for Home Affairs.   

18. The Tribunal has considered the evidence provided by the applicant and his oral evidence at the hearing but is not satisfied that his work at Bupa constituted ‘specified Subclass 417 work’.  As discussed with the applicant, although Bupa may be regarded as a company operating in the heath or medical sector, to meet the specified work requirement, he must have undertaken work activities stipulated in the legislative instrument and the focus of specified work was on the nature of the work undertaken, rather than the type employer worked for. The roles specified in the instrument as cited in paragraph 14 above, were all frontline roles in the healthcare and medical sectors during COVID-19.  Although ‘support services’ were not clearly defined in the instrument, in the Tribunal’s view, they related to supporting frontline COVID-19 work. By his own evidence, the applicant’s work in Bupa’s customer contact centre was essentially an administrative one.  The Tribunal also notes that, as discussed at the hearing, the period for which the applicant worked for Bupa falls short of the requisite 6 months.

19. Therefore, the applicant does not satisfy cl 417.211(6).

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

    DECISION

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

    Mara Moustafine

    
    

    Member