Groebel (Migration)

[2017] AATA 931

Groebel (Migration) [2017] AATA 931 (29 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arvid Thies Groebel

CASE NUMBER:  1621428

DIBP REFERENCE(S):  BCC2016/2342070

MEMBER:Meena Sripathy

DATE:29 May 2017

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 29 May 2017 at 2:37pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Specified work in regional Australia – Building work in Yulara – Building company sent applicant for short projects – Most duties related to Sydney companies – Incomplete bank records

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, 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 Immigration on 5 December 2016 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 13 July 2016. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied on the evidence provided, that the work undertaken by the applicant was specified work as defined in the relevant Legislative instrument, IMMI 16/087.

4. The applicant appeared before the Tribunal on 19 May 2017 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

6. The issue in this case is whether the applicant carried out at least 3 months full time specified work in regional Australia.

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

7. Clause 417.211 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.

8. ‘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 in the present case is IMMI 16/041 which applies to visa applications made between 1 July 2016 and 15 September 2016.  The Tribunal observes the delegate incorrectly referred to IMMI 16/087 as the relevant instrument, which in fact applies to applications made on or after 16 September 2016.  However, there is no observable difference in the stipulation of ‘specified work’ between the two instruments.  The only differences in the instruments appear to be inclusion of several additional postcodes in Western Australia.  Therefore, there is no material impact of this error by the delegate in the current case.

9. The applicant applied for a Working Holiday Subclass 417 visa on 13 July 2016.  In support of his declaration that he completed 3 months specified work in regional Australia  he submitted a Short Form Subcontract Agreement indicating he commenced a contract on 1 January 2016 with Reward Hotel Projects for demolition and carpet removal at Marriot North Ryde; a Specified Work Questionnaire indicating he worked for Reward Interiors Pty Ltd from 2 November 2015 to 14 May 2016 (with a break from 9 November 2015  to 11 January 2016), 6-7 days a week for 8-10 hours per day, as a labourer, delivery driver doing refurbishment (carpet, furniture renewal) and resided at Hotel Outback Pioneer Lodge in Yulara, and provided redacted bank statements showing purchase transactions in Yulara in the period January – April 2016.

10. The delegate was not satisfied on the evidence provided that the work completed came within ‘specified work’ as defined in the legislative instrument and refused the application on this basis.

11. Before the Tribunal the applicant provided the following further evidence and information:

    ·In a letter dated 9 December 2016 he states he was employed between 2 November 2015 and 4 May 2016 by Reward Interior Projects  at Desert Gardens Hotel in Yulara NT, 0872 as a contractor doing joinery installation, demolition, service preparation interior, forklift material handling and debris removal. 

    ·Transactions from the applicant’s CBA account indicating payments made from Reward Interiors

    ·Explanation that the Short Form Contract submitted to the Department had nothing to do with the work he completed in the Northern Territory, it was used by him to obtain permission to work in Sydney after the job in Yulara.

    ·Copy of Employment Verification for 1263 indicating completion of 90 days work in postcode 0872 with Reward Hotel Projects

    ·Bank statements showing pay received in period November 2015 to February 2016

    ·Short Form Subcontract Agreement relating to claimed work in Yulara from 2 November 2015

    ·Copies of invoices for work completed in the claimed period.

    ·Applicant’s Tax Assessment for 2015/2016 indicating taxable income of $40,494.

12. At the hearing the applicant told the Tribunal he completed his specified work in Yulara, Northern Territory.  He was working for a company in Sydney, which renovated hotels.  He worked for a few days on a job in Sydney, and was then told by the same company that they had a job in Yulara.  They flew him to Uluru and paid for his accommodation there.  The Tribunal asked if could provide evidence of his flights, he said he does not have any evidence but could ask the employer.  He said he started the job on 11 November 2015. The work involved carpet removal, demolition, unloading trucks and other labour jobs.  They were renovating rooms at the Ayers Rock Resort, Desert Gardens Hotel.  He worked alongside other workers including cabinet makers and joiners.  He worked Monday to Saturday, at least 10 hours a day.  He invoiced the employer at the rate of $1200 per week.  He had a break in December/January, and resumed the work in January. 

13. The Tribunal asked the applicant about the evidence he submitted.  It noted that he has provided heavily redacted bank statements and that they cover only parts of this period and do not support that he worked from 2 November 2015 to 14 May 2016 as claimed.  It asked him why he has not provided a complete copy of his bank statement for the full period. In response the applicant accessed his bank statement at the hearing and showed the Tribunal the statement for the period August 2015 to February 2016.  The Tribunal observed that there were credits of salary from a different employer ‘Charterhouse Res’ and asked what this was.  He indicated that he was also doing construction/labour work with this company in Sydney prior to and during this period.  The Tribunal put to him that this suggests that he was not in Yulara for the entirety of the period claimed.  At this point the applicant said he was flown back by the company to Sydney in November, after about one week at Yulara and returned there on 21 January.  He worked for Charterhouse Res in the interim period.  The Tribunal asked the applicant to show the statement for February 2016 to August 2016.  A brief look at the statement during the hearing showed transactions in South Australia and NSW following 7 April 2016.  The applicant stated that he left Yulara by road around this time and returned to NSW. Given this evidence, the Tribunal put to him that it is not satisfied on the basis of the receipts of pay from Reward Interiors into his bank account that he completed work in Yulara especially given that he has told the Tribunal he did jobs for this employer in Sydney.  It asked the applicant to provide a complete, non-redacted, copy of his bank statements for the full period of the claimed employment following the hearing so that it can consider this more closely.  The Tribunal gave the applicant a period of one week to provide this evidence, and also any other evidence he wishes to provide to support his claims to be in Yulara in this period.  

14. The Tribunal asked the applicant about the Short Form Subcontract Agreement he provided to the Department which indicated that he commenced a subcontract on 10 January 2016 with Reward Interiors to renovate rooms at Marriot Nth Ryde.  It put to him that this also appears to contradict his claim to be working in Yulara at this time.  The applicant said this document was provided to support his application for a work permit when his subclass 417 visa expired.  The Tribunal pointed out that his subclass 417 visa was valid until August 2016 so this does not appear to make sense. 

15. The Tribunal explained to the applicant that the issue arising in its consideration is whether he undertook at least 3 months work in Yulara as claimed.  The Tribunal had some concerns arising from his evidence about whether he was in Yulara throughout the period or not, given his evidence that he did other work for the same employer and a different employer in Sydney during this period also. 

16. On 24 May 2017 the Tribunal received the following further evidence from the applicant:

    ·Bank statements for a NetBank Saver account covering the periods 18 August 2015 -  19 October 2016  showing credits of salary from CharterHouse Res and Reward Interior Reward hotel Projects. 

    ·Evidence of applicant’s Jetstar flights from Sydney to Ayers Rock on Friday 4 March 2016 and Sunday 10 January 2016.

17. The Tribunal has considered the applicant’s claim that he completed specified regional work in Yulara, Northern Territory between 2 November 2015 and 14 May 2016, however, having carefully considered the evidence submitted to support his claim, the Tribunal is not satisfied that he worked in Yulara for this full period.  The invoices for labour costs provided only covered the periods from 11 January 2016 to 25 March 2016.  Evidence of his NetBank Saver account statements shows receipts of salary from another employer “Charterhouse Res” as well as Reward Hotel Projects in the period November to December 2015.  At the hearing he acknowledged that he worked for Charterhouse Res between jobs with Reward Hotel Projects in Yulara.  However, the evidence he has provided of his savings account statements place him in the area of Yulara only in periods from 28 January 2016 to 24 February 2016 and 9 March - 7 April 2016. The only travel evidence he has provided are flights from Sydney to Ayers Rock (Uluru) on 10 January 2016 and 4 March 2016.  While he told the Tribunal at the hearing that he left Yulara at the end of the job by road, travelling back to Sydney, he provided no further explanation for when and how he travelled to Ayers Rock in other periods.  Specifically, he has not explained or provided evidence of when or how he departed Yulara after 24 February 2016, and the evidence of the flight from Sydney to Ayers Rock on 4 March 2016 indicates he was in Sydney as at that date. 

18. The Tribunal discussed with the applicant at some length during the hearing the gaps in his evidence, and invited him to provide further evidence, including any other evidence that could support that he completed the work in Yulara as claimed.  The only evidence he submitted following the hearing was the two flight details and statements showing salaries credited to his account. While the Tribunal accepts the applicant received payments from Reward Hotel Projects between November 2015 and October 2016, he said in his own oral evidence that he worked for this company in Sydney both before and after the Yulara job. 

19. Therefore, on the available evidence the Tribunal cannot be satisfied that the applicant worked as claimed in Yulara, NT, from 2 November 2015 to 14 May 2016.  At best, the evidence supports that he was present in Yulara from 10 January to 24 February 2016 and again from 4 March to 7 April 2016, a total of 79 days.  Unfortunately this falls short of the minimum 3 months full time work required in cl. 417.211(5)(b), on the basis that 3 months means a minimum 88 days, identified under policy as being the shortest possible combination of months in a calendar year.  While noting that policy is not binding on the Tribunal, the Tribunal does not consider the policy interpretation of this term unreasonable or otherwise unlawful, and therefore has decided in the present case to apply it.  

20. Accordingly, while the Tribunal accepts that labouring work is capable of coming within the construction category specified in the relevant instrument; that postcode 0872 is a specified postcode; and that the applicant’s remuneration at the rate of $25 per hour was in accordance with relevant Australian legislation and awards;  it finds, on the evidence before it, that the total period of work carried out in regional Australia was less than the minimum 3 months required. 

21. Therefore, the applicant does not satisfy cl.417.211(5). 

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

    DECISION

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

    Meena Sripathy

    
    

    Member