Hartnett (Migration)

[2020] AATA 6009

Hartnett (Migration) [2020] AATA 6009 (22 September 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Gavin Gerard Hartnett

CASE NUMBER:  1830464

HOME AFFAIRS REFERENCE(S):          BCC2018/2234332

MEMBER:  Susan Trotter

DATE OF ORAL DECISION:  22 September 2020 DATE OF WRITTEN STATEMENT:  6 October 2020 PLACE OF DECISION:  Brisbane

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 06 October 2020 at 10:35am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa– evidence provided regarding specified regional work–work conducted in regional Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 417.111, 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 8 October 2018 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

1. At the hearing on 22 September 2020, the Tribunal made an oral decision. The following are the written reasons for the decision.

BACKGROUND

1. The applicant is a (now) 28-year-old citizen of Ireland. He was the holder of a Working Holiday (Temporary) (Class TZ) visa, the same visa that is the subject of this application and known as a Subclass 417 visa, from 13 June 2017 until 27 July 2018. He applied for a second Subclass 417 visa, the visa the subject of this application, on 23 May 2018.

1. 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).

1. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the work the applicant had carried out for IFM Services Pty Ltd was specified work as required by cl.417.211(5)(a) and that, consequently, only the 19 days specified work completed by the applicant for Finnan Solutions Pty Ltd from 1 January 2018 to 19 January 2018 in regional postcode area 4570 could be taken into account, and not the 71 days completed for IFM Services Pty Ltd in regional postcode area 4874. The delegate was therefore not satisfied that the applicant had carried out a period or periods of specified work in regional Australia equivalent to at least three months full-time work as required by cl.417.211(5)(b).

1. The applicant lodged an application for review with the Tribunal on 17 October 2018 and provided the Tribunal with a copy of the delegate’s decision.

1. The applicant was represented in relation to the review by his registered migration agent.

1. The applicant appeared before the Tribunal on 22 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sandra Kemp.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Clause 417.211(5)(a), as at the date of the applicant’s visa application, required that at the time of the visa application, the applicant had carried out a period or periods of specified work in regional Australia (whether on a full-time, part-time or casual basis).

1. ‘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 Migration IMMI 17/018 Working Holiday Visa – Specified Work and Regional Australia Instrument 2017 (IMMI 17/018).

1. Relevantly to this case “regional Australia” includes Queensland postcodes 4570 and 4874 and “specified work” is particularised in IMMI 17/018 as follows:

7 Specified work

(1) For the purpose of subitem 1225(5) of Schedule 1 to the Regulations, specified work

means work of a kind specified in subsections (2) to (6).

1. And, relevantly, at (5) includes:

(5)  Mining:

(a)coal mining;

(b)oil and gas extraction;

(c)metal ore mining;

(d)construction material mining;

(e)other non-metallic mineral mining and quarrying;

(f)exploration;

(g)mining support services.

1. And at (6) includes:

(6)  Construction:

(a)residential building construction;

(b)non-residential building construction;

(c)heavy and civil engineering construction;

(d)land development and site preparation services;

(e)building structure services:

(f)building installation services;

(g)building completion services;

(h)other construction services

1. Clause 417.211(5)(b), as at the date of the applicant’s visa application, required that at the time of the visa application, the total period of specified work carried out by the applicant in regional Australia was for at least three months.

1. Clause 417.211(5)(c), as at the date of the applicant’s visa application, required that at the time of the visa application, the applicant had been remunerated for the work in accordance with relevant Australian legislation and awards.

1. It follows that the issues for the Tribunal to determine are:

(a)  Has the applicant carried out the requisite specified work in regional Australia? And, if  so,

(b)  Was the total period of the work carried out at least, or equivalent to, three months’ full- time work? And, if so,

(c)   Was the applicant remunerated for the work in accordance with the relevant Australian legislation and awards?

CONSIDERATION

1. The visa application states, among other things, that:

(a)  The applicant has undertaken specified work in regional Australia for a total of three months.

(b)  The industry in which the work mainly occurred was ‘mining’.

(c)   The work was undertaken from 1 January 2018 to 19 January 2018 in the postcode area of ‘4570’ for an entity with the ABN (ending in) ‘XXXXX XX1301’ and from 28 February 2018 to 21 May 2018 in the postcode area of ‘4874’ for an entity with the ABN (ending in) ‘XXXXX XX56681’.

1. The documents provided by the applicant to the Department in support of the visa application included:

(a)  Payslips   for   the   periods   ending   14   January   2018,   28   January   2018   and    11 February 2018;

(b)  Payslips for the periods 1 March 2018 to 11 March 2018, 12 March 2018 to 25 March 2018, 26 March 2018 to 8 April 2018, 9 April 2018 to 22 April 2018, 23 April 2018 to 6 May 2018, 7 May 2018 to 20 May 2018.

1. The Tribunal has taken into account oral evidence of the applicant at hearing including as follows:

(a)  His work for IFM Services Pty Ltd was in Weipa, Queensland. The company basically provides services for the mines. There are different sectors such as catering and maintenance. They were contracted to Sodexo, a business that provides services to different industries.

(b)  A lot of his work involved undertaking maintenance around power lines and the water bores essential to the mines and their operations. They had to trim all the gram within a 5 metre radius of the power lines and water bores. His responsibilities included work inside and outside the secure areas of the mine.

(c)  His work also involved house yard cleaning and mowing the lawn. Part of the job description was to keep the town looking nice.

(d)  Every morning he would go into the office and be given a list of jobs for the day. The day usually started with maintenance of a couple of houses in town in the morning, and then in the afternoon cleaning up around the mine sites. Some of the houses were private houses but they also did all the mining houses and facilities.

1. The Tribunal also took into account the oral and written evidence of Ms Kemp, including as follows:

(a)  She is the Indigenous Community Relations & Grounds Maintenance Manager for Sodexo, which subcontracts to both the mine and the town authority. There is no town council as such. A section of their contract is with Rio Tinto and a section of their  contract is with the Weipa Town Authority.

(b)  The work the applicant was doing was in support of both the mine and the town. Weipa  is a town which revolves around the mines such that whether the work was undertaken  in the mine or in the town, it was essentially in support of the mines.

(c)  As per her email of 21 September 2020, the applicant’s duties included house yard cleaning, mowing lawns, snipping yards, weeding and pruning gardens, clearing fence lines with a minimum of a five metre fire break, poisoning of areas, clearing green waste, rubbish pickups, snipping around high voltage power poles, maintaining parks, play areas and gardens and mulching.

(d)  A rough estimate is that the work would have been approximately 60% at the mines and 40% in town. The mine owns about 250 houses in Weipa and the remaining houses are privately owned. The population of Weipa is around 5000 but she is not sure of the total number of houses. The work the applicant did in maintenance of yards was only for vacant mining owned homes.

Issue 1 - Has the applicant carried out the requisite specified work in regional Australia?

1. The applicant submits that the tasks and duties performed by him in the relevant period for IFM Services Pty Ltd are analogous to those of a Mining Support Worker (ANZSCO code 821914) because he was performing tasks and duties including in relation to the high- voltage power lines stretching between Weipa and the mines, and the nearby water bores, an important source of water for the mine. It is further submitted that the high-voltage power lines are the only source of power for the infrastructure surrounding the water bores, and thus the only source of power for an element that is necessary for the mines to operate, such that the groundskeeper experience of the applicant is directly involved in supporting mining operations. It was further orally submitted on Ms Kemp’s evidence that the work undertaken in the town of Weipa by the applicant was largely for the houses owned by Rio Tinto.

1. As regards what entails work of a kind specified as mining support services, Departmental policy (PAM3) states as follows in relation to ‘specified work’:

Types of specified work

The Schedule 1 item 1225(5) ‘specified work’ legislative instrument defines specified work as any type of work identified in that instrument. The instrument lists a range of eligible work activities, in either specific or broad terms, generally encompassing work in the industries of agriculture, mining and construction.

The agricultural work activities defined by the specified work legislative instrument can be interpreted literally. This applies to plant and animal cultivation, fishing and pearling and tree farming and felling. The broader activity categories relating to construction and mining are further defined in the 2006 version of the Australian New Zealand Standard Industrial Classification (ANZSIC). This source should be referred to when considering eligibility of work undertaken in the construction and mining industries - refer to the associated Australian Bureau of Statistics (ABS) ANZSIC 2006 website.

Email WHM Policy Enquiries for clarification if specified work eligibility determinations cannot be made either through general reading of the legislative instrument (for plant and animal cultivation, fishing and pearling and tree farming and felling) or by consulting ANZSIC.

Nine examples of eligible specified work activities are:

·picking fruits on an orchard

·feeding and herding cattle on a farm

·horse breeding and stud farming

·landscaping the grounds of a construction/house site

·painting the interior/exterior of new buildings

·conservation and environmental reforestation work

·zoo work involving plant or animal cultivation

·erecting fences on a construction site and

·scaffolding.

Eight examples of ineligible specified work activities are:

·ship/boat building

·performing   specialised   social   science   services    (such    as    anthropological   and archaeological assessments) for mining companies

·town planning or architecture

·working as a nanny on a farm

·working at a cellar door providing wine tastings

·manufacturing materials used on a construction site (such as concrete or steel)

·cooking/catering on a mine site and

·cleaning the interior of mine complexes or buildings.

Specified work does not need to be paid work, but must be the primary role, function or activity performed during the applicant’s employment.

[Tribunal emphasis added]

1. As referenced in PAM3, the 2006 version of the Australian New Zealand Standard Industrial Classification (ANZSIC) at Class 1090 within Group 109 states as follows in relation to Other Mining Support Services:

   Division B MINING

   Subdivision 10 EXPLORATION AND OTHER MINING SUPPORT SERVICES Group 109 OTHER MINING SUPPORT SERVICES

   Class 1090 Other Mining Support Services

   This class consists of units mainly engaged in providing mining support services integral to the mining process.

Primary activities

·Cementing oil and gas well castings

·Directional drilling and redrilling

·Mining draining and pumping service

·Oil and gas field support service nec.

Exclusions/References

Units mainly engaged in

·carrying out an entire mining operation are classified according to the deposit type;

·providing geological or geophysical surveying services on a contract or fee basis are included in Class 6922 Surveying and Mapping Services;

·providing ore testing, assaying or similar laboratory type services on a contract or fee basis are included in Class 6925 Scientific Testing and Analysis Services;

·providing services incidental to the mining industry, such as catering and transport, are coded to the appropriate industry for that activity;

·undertaking general exploration contracts for particular minerals or in providing related drilling services are included in Class 1012 Mineral Exploration; and

·undertaking mine site preparation and removal of overburden done on a contract or fee basis are included in Class 3212 Site Preparation Services.

1. Notably, IMMI 17/018 at cl.7(1) states that specified work means work of a kind that relevantly includes ‘mining support services’. ANZSIC in providing guidance as to what constitutes mining support services refers to ‘providing mining support services integral to the mining process’.

1. The Tribunal is satisfied, having had regard to the evidence of the applicant and Ms Kemp that the work undertaken by the applicant was in support of the Rio Tinto mine and associated facilities, including Rio Tinto owned houses in the nearby town of Weipa. The Tribunal also recognises that Weipa itself is largely a ‘mine’ town and is satisfied that any work undertaken by the applicant for the town authority was indirectly in support of the mines, given the well-accepted and significant connection between the town and the mine.

1. Even if the Tribunal had not so concluded, PAM3, and by reference ANZSIC, is only one relevant factor to be taken into account and only to the extent it is not inconsistent with the relevant regulation and instrument. PAM3 and ANZSIC, while providing guidance, are not referred to in the relevant legislation as a reference point by which ‘specified work’ or ‘mining support services’ must be assessed. The term ‘mining support services’ in the relevant instrument is a broad term and while assistance can be gained from ANZSIC as to what might constitute mining support services, the Tribunal does not consider that that broad term in the instrument can be read down by reference to ANZSIC.

1. Having had regard to all matters, the Tribunal is satisfied that the applicant’s work with IFM Services Pty Ltd was integral to the support of the mine and the infrastructure in Weipa supporting the mine, and therefore was of a kind that amounts to mining support services such that it was specified work within the meaning of IMMI 17/018.

1. The Tribunal is also satisfied, as was the delegate that the applicant’s work as a lift installer with Finnan Solutions Pty Ltd was of a kind that amounts to construction work such that it was specified work within the meaning of IMMI 17/018.

1. It follows that the applicant has carried out two periods of specified work in regional Australia as the holder of a Subclass 417 visa.

1. Clause 417.211(5)(a) is therefore met.

Issue 2 - Was the total period of the work carried out at least, or equivalent to,      three months’ full-time work?

1. Payslips of the applicant in evidence show that the applicant was paid by IFM Services Pty Ltd and Finnan Solutions Pty Ltd such that the Tribunal is satisfied that the total period of work carried out was at least three months’ full-time work.

1. Clause 417.211(5)(b) is therefore met.

Issue 3 - Was the applicant remunerated for the work in accordance with the relevant Australian legislation and awards?

1. The Department’s policy guidelines in PAM3 in relation to appropriate remuneration includes as follows:

Appropriate remuneration

Specified work undertaken 1 December 2015 onwards has to have been paid work, appropriately remunerated, with pay slips provided to the department as evidence.

Case officers auditing a second Working Holiday visa application should undertake an additional step for remuneration verification. This will entail checking the hourly rate of pay on the pay slips provided by the applicant against minimum wage rates.

The national minimum hourly wage (before tax) for 2015-2016 is AUD 17.29. This is AUD

656.90 for a 38 hour week. Casual employees also receive a casual loading of at least a 25% on this base rate. The national minimum wage is reviewed, and changes, every financial year. For ongoing case officer reference, pay rates are on the Fair Work Ombudsman’s Pay calculator webpage.

Remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history. In the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted. Identified instances of inadequate remuneration should also subsequently be referred to the Fair Work Ombudsman for investigation.

1. The national minimum wage1 from 1 July 2017 was $18.29 per hour.

1. The payslips for the applicant show that he was paid at $19.53 per hour and $23.00 per hour respectively, and at higher rates for overtime, which is higher than the national minimum wage.

1. Having regard to these matters, the Tribunal is satisfied that the applicant was remunerated in accordance with relevant Australian legislation and awards for the work undertaken.

Conclusion

1. Given the Tribunal’s findings that paragraphs (a), (b) and (c) of cl.417.211(5) are satisfied, the applicant satisfies cl.417.211(5) overall. For the reasons above, on the date of hearing the Tribunal made an oral decision to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

DECISION

1. 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.

Susan Trotter Member

1                  reviews/annual-wage-review-2016-17/national