Jermyn (Migration)

[2019] AATA 2920

Jermyn (Migration) [2019] AATA 2920 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Edward Jermyn

CASE NUMBER:  1814372

DIBP REFERENCE(S):  BCC2017/3905232

MEMBER:Adrienne Millbank

DATE:21 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

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

Statement made on 21 March 2019 at 3:01pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – not specified work – ‘Tree farming and felling’ – incorrect job title of QA & WHS Coordinator – worked at all times as ‘a hands on forestry worker and operator’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.211(5)(a), 462.218(a)

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 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for a Working Holiday (Temporary) (Class TZ), Working Holiday (Extension) (Subclass 417) visa on 23 October 2017. The Delegate refused to grant the visa on 27 April 2018.

2. The Delegate refused to grant the visa on the basis that the applicant did not meet a criterion, cl.462.218(a), of the Migration Regulations 1994 (the Regulations).

3. Clause 462.218(a) states:

   If the applicant is, or has previously been, in Australia as the holder of a Subclass 462 (Work and Holiday) visa, the Minister is satisfied that the applicant has, after 18 November 2016, carried out a period or periods of specified Subclass 462 work as the holder of the visa.

4. The Delegate was not satisfied on the evidence provided that the work undertaken by the applicant was specified work according to Legislative Instruments IMMI 17/092 and IMMI 17/018. The applicant at the time of application had declared his job title as QA & WHS Coordinator in the Forestry Industry with specific duties as WHS Officer and Quality control Coordinator. Payslips provided by the applicant indicated he was paid according to the Award applicable to QA & WHS Coordinator. The applicant’s Employment Contract showed the applicant’s position as QA & WHS Coordinator. The Delegate found that the applicant worked as a QA and WHS Coordinator and that that work was not specified work according to the instruments.

5. As the applicant applied for a Working Holiday (Extension) (Subclass 417) visa, and on review the Tribunal is to consider the application against the criteria for which the applicant actually applied, the Tribunal is considering the application against the Working Holiday (Extension) (Subclass 417) visa criteria. Clause 417.211(5)(a) states:

   If the applicant is, or has previously been, in Australia as the holder of a Subclass 417 visa, the Minister is satisfied that the applicant has carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa.

6. The applicant declared that he undertook specified work with MM Logging from 19 March 2017 to 25 August 2017 in regional postcode area 2787. Legislative instrument 17/018, at item 2(6)(2) identifies postcode area 2787 as a specified place. Legislative instrument IMMI 17/018, at item 7(4) specifies ‘Tree farming and felling’ work in the Agricultural Industry as:

   (a)   planting or tending tees in a plantation or forest that are intended to be felled;

   (b)   felling trees in a plantation or forest;

   (c)   transporting trees or parts of trees that were felled in a plantation or forest to the place where they are first to be milled or processed or any other place from which they are to be transported to the place where they are to be milled or processed.

7. On 17 May 2018 the Tribunal received a letter from the HR Manager of the logging company employer of the applicant which clarified the applicant’s responsibilities while working for the company. The HR Manager advised that the applicant’s role with the organisation ‘falls firmly into the specified work category (listed above)’, and that the applicant ‘was stationed out in our forests locations 10-12 hours per day as part of our harvesting operation’. A number of photos were provided showing the applicant working tree harvesters, on tree harvesting and logging operations in a planted pine forest. 

8. The HR Manager explained in the letter that the company gave the applicant the title of QA & WHS Coordinator in recognition of his education level and leadership style, which equipped him ‘to facilitate team quality assurance and work health and safety decisions’. The manager acknowledged that the title was perhaps misleading, because the applicant was in fact employed and worked at all times as ‘a hands on forestry worker and operator’. He advised that ‘perhaps on his contract I should have displayed ‘Forestry Work – Team Leader QA/WHS’.

9. On the basis of this further information and evidence, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

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

    Adrienne Millbank
    Member