Mc manamon (Migration)

[2018] AATA 2201

Mc manamon (Migration) [2018] AATA 2201 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gary McManamon

CASE NUMBER:  1719503

DIBP REFERENCE(S):  BCC2017/2276350

MEMBER:Linda Symons

DATE:14 May 2018

PLACE OF DECISION:  Sydney

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.417.221 of Schedule 2 to the Regulations.

Statement made on 14 May 2018 at 5:06pm

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday (Temporary)) – Requirement to undertake “specified work” in “regional Australia” – Sheet metal worker – Construction – Land development and site preparation services – Employment located in regional Australia – Greater than 3 months full-time work undertaken – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5)(a), 417.221

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 23 August 2017 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 to the Department of Home Affairs (the Department) for the visa on 27 June 2017. 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.417.221.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because he was not satisfied that the applicant met the requirements of cl.417.211(5) as the work completed by him was not specified work as defined. On 26 August 2017, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 2 March 2018 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. The issue in this case is whether the applicant satisfies the requirements of cl.417.221.

7. Clause 417.221(1) requires that the applicant satisfies the criteria in subclauses (2) to (7). The relevant clauses provide as follows:

   Clause 417.221(2):

   The applicant:

   (a)  continues to satisfy the criteria in paragraph 417.211(2)(c) and subclauses 417.211(4) and (5); and

   (b)  satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013, 4014, 4019 and 4020.

   Clause 417.211(2):

   The applicant:

   (b)  has turned 18 but has not turned 31; and

   (c)  holds a working holiday eligible passport.

   Clause 417.211(4):

   The Minister is satisfied that the applicant:

   (a)  seeks to remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia; and

   (b)  has sufficient money for:

   (i)  the fare to the applicant's intended overseas destination on leaving Australia; and

   (ii)  personal support for the purposes of a working holiday; and

   (c)  has a reasonable prospect of obtaining employment in Australia; and

   (d)  will not be accompanied by dependent children during his or her stay in          Australia.

   Clause 417.211(5):

   If the applicant is, or has previously been, in Australia as the holder of a   Subclass 417 visa, the Minister is satisfied that:

   (a)  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; and

   (b)  the total period of the work carried out is, or is equivalent to, at least 3 months full-time work; and

   (c)  the applicant has been remunerated for the work in accordance with    relevant Australian legislation and awards. 

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

8. Clause 417.211(5) 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. ‘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 IMMI 16/087.

9. In his application for this visa, the applicant stated that he undertook specified work from 13 February 2017 to 28 May 2017 at postcode 6410. In support of his application, he provided the Department with an Employment Verification Form 1263, a WHM Specified Work Questionnaire, payslips and a bank statement for the period 6 January 2017 to 7 March 2017. The Employment Verification Form 1263 indicates that he was employed by Moylan Grain Silos at Kellerberrin from 13 February 2017 to 18 May 2017. The WHM Specified Work Questionnaire indicates that he was employed there from 10 February 2017 to 18 May 2017.

10. During the hearing, the Tribunal raised as an issue with the applicant the inconsistencies in the evidence in relation to when he worked at Moylan Grain Silos and its concerns that he had not worked the required number of days. He responded that his employer sent him a document that says he worked there from 13 February 2017 to 31 May 2017 and he has payslips to prove it. The Tribunal informed him that the payslips he had provided to the Department cover the periods 10 February 2017 to 18 May 2017. He stated that he had left out two payslips. He was given additional time after the hearing to provide further evidence of his employment at Moylan Grain Silos.

11. Following the hearing, the applicant provided to the Tribunal copies of two payslips, a letter dated 28 February 2018 from Corey Moylan, Manager of Moylan Grain Silos, a letter dated 7 March 2018 from Mike Moylan, Manager of Moylan Grain Silos and an amended Employment Verification Form 1263. The two payslips provided to the Tribunal were for the pay periods 10 February 2017 to 16 February 2017 and 17 February 2017 to 23 February 2017 and had been previously provided to the Department. The two payslips that the applicant claimed to have “left out” were not provided to the Tribunal.

12. The letters from Corey Moylan and Mike Moylan indicated that the applicant had worked at Moylan Grain Silos from 13 February 2017 to 31 May 2017. The amended Employment Verification Form 1263 indicated that he applicant worked there from 13 February 2017 to 1 June 2017 and was signed on behalf of Corey Moylan. No explanation was provided for the inconsistencies in the evidence between the letter from Mr Corey Moylan which stated that the applicant worked at Moylan Grain Silos until 31 May 2017 and the amended Employment Verification Form 1263 from Corey Moylan which stated that he worked there until 1 June 2017.

13. Further, no explanation was provided for the inconsistencies in the evidence between the original Employment Verification Form 1263 which indicated that the applicant worked at Moylan Grain Silos until 18 May 2017 and the amended Employment Verification Form 1263 which indicated that he worked there until 1 June 2017. The evidence from Moylan Grain Silos in relation to when the applicant commenced employment there, 13 February 2017, has been consistent in the documents provided by them. However, they have provided three different dates in relation to when he completed his employment with them; 18 May 2017, 31 May 2017 and 1 June 2017. The applicant’s evidence is that he had planned to leave by a certain date and then extended the time by about two weeks and this could have led to the confusion over when he finished working there.   

14. The applicant has not provided the Tribunal with the two payslips he claimed he had “left out”. His evidence to the Tribunal is that his pay was paid into his bank account. He had previously provided the Department with a bank statement for the period 6 January 2017 to 7 March 2017. He did not provide the Tribunal with any bank statements which could have verified when his last pay from Moylan Grain Silos was paid into his bank account. 

15. On the evidence before it, the Tribunal is satisfied that the applicant commenced employment at Moylan Grain Silos on 13 February 2017 and finds accordingly. Based on the payslips before it, the original Employment Verification Form 1263 and the WHM Specified Work Questionnaire provided to the Department, the Tribunal finds that he completed his work at Moylan Grain Silos on 18 May 2017. This is the equivalent of 13 weeks and 3 days or 94 days. The applicant’s evidence to the Tribunal is that he worked full time, five days a week and 40 hours a week. He stated that he was paid approximately $28.00 per hour. His payslips indicate that he was paid an hourly rate of $27.00. The Tribunal is satisfied on the evidence before it that he was employed by Moylan Grain Silos for at least 3 months full time work.

16. The evidence before the Tribunal indicates that the applicant first arrived in Australia on 15 July 2016 as the holder of a Working Holiday (Temporary) (Class TZ) subclass 417 visa that was valid until 15 July 2017. He departed Australia on 23 December 2016 and returned on 3 January 2016. He next departed Australia on 23 December 2017. The Tribunal finds that he was the holder of a Working Holiday (Temporary) (Class TZ) subclass 417 whilst working at Moylan Grain Silos.

17. In considering whether the work undertaken by the applicant whilst employed at Moylan Grain Silos was specified work as defined in the legislation, the Tribunal has considered the evidence before it. In the WHM Specified Work Questionnaire, in response to the question ‘what was your job title’, the applicant responded ‘Mechanic/Metal Sheet Worker’. In response to the question ‘list your specific duties’, he responded ‘service and maintenance of vehicles/sheet worker’. In the original and amended Employment Verification Form 1263, his duties are described as ‘servicing and maintenance of vehicles’. The letter from Corey Moylan states ‘Gary’s role in this position was the manufacturing of silo components and assisting in the production line of Field Bins and Silos’. His payslips indicate that his classification is ‘sheet metal worker’.

18. During the hearing, the Tribunal discussed with him the nature of the work he undertook whilst employed at Moylan Grain Silos and whether it was specified work as defined in the legislation. He responded that his work primarily involved the fabrication of silos, loading them on trucks and erecting them in the fields. He stated that he was trained as a mechanic at home and was good at fixing things. He stated that if anything went wrong with a vehicle he was able to fix it. He stated that that was why he included that in the description of his duties in the questionnaire and paperwork but that was not his primary role. The Tribunal is satisfied, on the evidence before it, that he was involved in the manufacture of silos and field bins and their construction in fields and that he was not employed as a motor mechanic even though he helped out by occasionally fixing vehicles if there was a mechanical problem.   

19. ‘Specified work’ and ‘regional Australia’ are defined in Legislative Instrument IMMI 16/087 and states the following:

    2. SPECIFY for the purposes of subitem 1225(5) of Schedule 1 to the Regulations:

    (a) that a location or State or Territory area postcode listed in the Schedule to this Instrument is a place in regional Australia; and

    (b) specified work to be any type of work identified in the list below:

    (i) plant and animal cultivation:
               A. the harvesting and/or packing of fruit and vegetable crops;
               B. pruning and trimming vines and trees;
               C. general maintenance crop work;
               D. cultivating or propagating plants, fungi or their products or parts;
               E. immediate processing of plant products;
               F. maintaining animals for the purposes of selling them or their bodily produce,      including natural increase;
               G. immediate processing of animal products including shearing, butchery, packing           and tanning;
               H. manufacturing dairy produce from raw material.

    (ii) fishing and pearling:
               A. conducting operations relating directly to taking or catching fish and other aquatic         species;
               B. conducting operations relating directly to taking or culturing pearls or Authorised           Version F2016L01441 registered 15/09/2016
               IMMI 16/087
               pearl shell.

    (iii) tree farming and felling:
               A. planting or tending trees 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.

    (iv) 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.

    (v) 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.

20. On the evidence before it, the Tribunal is satisfied that the manufacture of silos and field bins and their construction in fields generally falls within the area of construction work in relation to land development and site preparation services or, alternatively, other construction services. The Tribunal is satisfied that this is specified work for the purposes of cl.417.211(5)(a) and that the applicant undertook specified work whilst employed at Moylan Grain Silos. The Tribunal is satisfied that the work undertaken by him was in Kellerberrin in Western Australia bearing post code 6410. The Tribunal is satisfied that postcode 6410 is a location defined as regional Australia in Legislative Instrument 16/087.

21. The applicant’s payslips indicate that his employment classification was Sheet Metal Worker and that he was paid an hourly rate of $27.00 per hour. This is above the award pay rate for a level 3 sheet metal worker which was $21.58 per hour as at 13 February 2017.[1] 

    [1] Fair Work Ombudsman. Pay Calculator. (>

    On the evidence before it, the Tribunal finds that the applicant is the holder of a United Kingdom passport which is a working holiday eligible passport. Accordingly, the Tribunal funds that he satisfies the requirements of cl.417.211(2)(c) at the time of application and the time of decision. The Tribunal finds that he seeks to remain in Australia as a genuine visitor whose principal purpose is to spend a holiday in Australia, that he has sufficient money for the fare to his intended overseas destination on leaving Australia and his personal support for the purposes of a working holiday, that he has a reasonable prospect of obtaining employment in Australia and that he will not be accompanied by dependent children during his stay in Australia. Accordingly, the Tribunal finds that he satisfies the requirements of cl.417.211(4) at the time of application and the time of decision.

22. On the evidence before it, the Tribunal finds that, whilst the holder of this visa, the applicant carried out a period of specified work in regional Australia for the equivalent of at least 3 months full time work and that he was remunerated for the work in accordance with relevant Australian legislation and awards. Accordingly, the Tribunal finds that he satisfies the requirements of cl.417.211(5) at the time of application and the time of decision. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4013, 4014, 4019 and 4020. Therefore, he satisfies the requirements of cl.417.221(2).

23. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant satisfies special return criteria 5001 and 5002. Therefore, he satisfies the requirements of cl.417.221(3). The Tribunal is satisfied that he intends to comply with any conditions subject to which the visa is granted. Therefore, he satisfies the requirements of cl.417.221(4). In the absence of any evidence to the contrary, the Tribunal is satisfied that the approval of the application would not result in either the number of Subclass 417 visas granted in a financial year exceeding the maximum number of Subclass 417 visas, as determined by an instrument in writing, that may be granted in that financial year or the number of visas of particular classes, including Subclass 417, granted in a financial year exceeding the maximum number of visas of those classes, as determined by an instrument in writing, that may be granted in that financial year. Therefore, he satisfies the requirements of cl.417.221(5).

24. There is no evidence before the Tribunal to indicate that the applicant is a ‘Foreign Affairs student’ and therefore the provisions of cl.417.221(6) and (7) are not relevant in this case.

25. In view of the above findings, the Tribunal finds that the applicant satisfies the requirements of cl.417.221.

26. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

    DECISION

27. 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.417.221 of Schedule 2 to the Regulations.

    Linda Symons

    
    

    Member