MCLAUCHLAN (Migration) - [2017] AATA 2610

MCLAUCHLAN (Migration) [2017] AATA 2610 (13 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr JAMES ROSS MCLAUCHLAN
CASE NUMBER:  1621853
DIBP REFERENCE(S):  BCC2016/3037139
MEMBER:Susan Trotter
DATE:13 September 2017
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 13 September 2017 at 11:41am

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – Non-appearance at Tribunal hearing – Work – Regional Australia – Did not carry out the requisite specified work – Did not meet the 3 months of full time work requirement
LEGISLATION
Migration Act 1958 ss 65, 362B, 362B(1)
Migration Regulations 1994 r 1.03 Schedule 2 cls 359(2), 417.111, 417.211, 417.211(5)
CASES
Kaur v MIBP [2014] FCA 915
MZYZI v MIAC [2013] FMCA 242
Shah v MIAC [2011] FMCA 18
SZHSQ v MIMA (2006) 155 FR 159
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 December 2016 to refuse to grant the applicant, Mr James Ross McLauchlan, a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).
Mr McLauchlan applied for the visa on 13 September 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).
On 26 October 2016, a delegate of the Minister requested that Mr McLauchlan provide further details of evidence of specified work including:
a.    Employment verification form 1263;
b.    A completed ‘Employment Details’ questionnaire;
c.    Evidence to support that Mr McLauchlan had worked at least three months full-time and had been remunerated in accordance with the relevant Australian legislation and awards,
On 15 November 2016, Mr McLauchlan provided an Employment Contract, Employment Reference letter, Payslips and a completed questionnaire as evidence of the specified work he claimed to have completed.
On 12 December 2016, the delegate refused to grant the visa on the basis that Mr McLauchlan did not meet cl.417.211(5) as the work completed by him was not specified work as required.
Mr McLauchlan lodged an application for review of this decision with the Tribunal on 20 December 2016.
The Tribunal wrote to Mr McLauchlan on 8 August 2017, pursuant to s.359(2) of the Act inviting him to provide information addressing the requirement to have carried out specified work.
On 21 August 2017, the Tribunal received two emails from Mr McLauchlan in response to its correspondence of 8 August 2017. Mr McLauchlan states in those emails that his specific work was in “construction, dealing with supply, service and some installation” and that he provided (to the Department) “a letter from my boss at the time, payslips for the whole 3 months, photographic evidence for me at work, as well as the completed questionnaire”. Mr McLauchlan further provided a list of the evidence he had provided to the Department, listing the documents referred to in paragraph 4 of these Reasons and stating that he would attempt to have the Department forward all the documents to him again so that he could send them to the Tribunal.
On 25 August 2017, the Tribunal wrote to Mr McLauchlan, by letter forwarded to the email address provided by Mr McLauchlan when lodging his application, advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited Mr McLauchlan to give oral evidence and present arguments at a hearing on 13 September 2017 in Brisbane and advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
On 8 September 2017, Mr McLauchlan contacted the Tribunal and advised that he had moved from Moffat Beach and was now living in Cairns and therefore unable to attend the hearing in Brisbane. Mr McLauchlan was advised that the Moffat Beach address was the last known address that he had provided to the Tribunal and the reason why the hearing had been listed in Brisbane and stressed the importance of Mr McLauchlan keeping the Tribunal up to date with changes of address.
On 11 September 2017, the Tribunal contacted Mr McLauchlan by telephone and advised that the hearing had been updated to a video hearing in Cairns on the same date as originally advised, 13 September 2017, and that an updated hearing invitation would be emailed to him.
On 11 September 2017, the Tribunal wrote to Mr McLauchlan, by letter forwarded to the email address provided by Mr McLauchlan when lodging his application, enclosing an updated hearing invitation confirming, amongst other things, details of the location of the video facility which he should attend for the hearing on 13 September 2017.
No response was received to the Tribunal’s letter of 11 September 2017 and Mr McLauchlan did not appear at the scheduled hearing before the Tribunal on the day and at the time and place at which he was scheduled to appear. The Tribunal is satisfied that Mr McLauchlan was notified of the hearing in accordance with the statutory requirements.
Pursuant to s.362B(1) of the Act, the Tribunal has a discretion (see also s.362B(2)) to reschedule Mr McLauchlan’s appearance before it, or to delay its decision on the review in order to enable his appearance to be rescheduled. The Tribunal must exercise its power under s.362B reasonably and, that reasonableness is informed by the factual circumstances in respect of this particular review and this particular applicant, Mr McLauchlan (see Kaur v MIBP [2014] FCA 915.)
The Tribunal notes that it is under no statutory obligation to seek to contact an applicant to enquire as to the reason for the non-attendance. In SZHSQ v MIMA (2006) 155 FR 159, the Federal Court commented that the Act expressly authorises the Tribunal to proceed without making such enquiries. In MZYZI v MIAC [2013] FMCA 242, the Court observed that there is no obligation upon the Tribunal to telephone an applicant to check his or her whereabouts if they failed to attend a scheduled hearing. In Shah v MIAC [2011] FMCA 18, the Federal Magistrates Court commented that to impose a requirement that the Tribunal take steps to ascertain whether an applicant wishes to have a further opportunity to appear following their non-appearance at a scheduled hearing would undermine the administrative certainty sought to be achieved by the deemed receipt provisions applicable to the sending of hearing invitations. In that case, the Court held that the fact that the applicant had previously responded to the Tribunal’s correspondence but failed to do so for the hearing invitation did not make it obvious that an inquiry should be made as to whether he wished to attend the hearing, particularly as the invitation had apparently been sent without incident to a professional migration agent.
In considering whether it would be appropriate for it to exercise this discretion in Mr McLauchlan’s favour, the Tribunal has also taken into account its legal obligations under the Act to pursue the objective of providing a mechanism of review that is fair, just, informal, economical and quick.
The Tribunal has had regard to the fact that Mr McLauchlan’s contacts with the Tribunal on 11 September 2017 make it clear that he was aware of the hearing date and that given his change of address, previously unadvised to the Tribunal, arrangements had been made for the hearing to continue on the same date and at the same time by video conferencing facilities conveniently located near to his new address.
Having regard to all of the circumstances outlined above, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable Mr McLauchlan to appear before it.
This matter has therefore been determined on the evidence available to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. ‘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, Working Holiday Visa – Definitions of Specified Work and Regional Australia.
ISSUES
Clause 417.211(5) of Schedule 2 to the Regulations, as at the date of Mr McLauchlan’s visa application, required, among other things, that at the time of the visa application, he had carried out specified work in regional Australia for a total period of at least three months as the holder of a Working Holiday visa. ‘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 Working holiday visa - definitions of 'specified work' and 'regional Australia'.
Relevantly to this case “regional Australia” includes the entire territory of the Northern Territory (including postcode 0820) and “specified work”: includes:
(a)      plant and animal cultivation
(i)       the harvesting and/or packing of fruit and vegetable crops
(ii)       pruning and trimming vines and trees
(iii)      general maintenance crop work
(iv)      cultivating or propagating plants, fungi or their products or parts
(v)       immediate processing of plant products
(vi)maintaining animals for the purpose of selling them or their bodily produce, including natural increase
(vii)immediate processing of animal products including shearing, butchery, packing and tanning
(viii)     manufacturing dairy produce from raw material
(b)      fishing and pearling:
(i)conducting operations relating directly to taking or catching fish and other aquatic species;
(ii)conducting operations relating directly to taking or culturing pearls or pearl shell.
(c)      tree farming and felling:
(i)planting or tending trees in a plantation or forest that are intended to be felled;
(ii)felling trees in a plantation or forest;
(iii)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.
(d)      mining:
(i)       coal mining;
(ii)      oil and gas extraction;
(iii)     metal ore mining;
(iv)      construction material mining;
(v)      other non-metallic mineral mining and quarrying;
(vi)      exploration;
(vii)     mining support services.
(d)      construction:
(i)       residential building construction;
(ii)      non-residential building construction;
(iii)     heavy and civil engineering construction;
(iv)      land development and site preparation services;
(v)      building structure services;
(vi)      building installation services;
(vii)     building completion services;
(viii)    other construction services.
The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.
The expression, ‘3 months’ is not defined in the Regulations; however Departmental guidelines (PAM 3) suggests that 3 months is taken to mean 88 days which is the shortest possible combination of months in a calendar year. Further, these guidelines specify that the work should be the equivalent of full time work for that employer, that region and that industry. The Tribunal notes, however, that cl.417.211 does not on its face require the work to be done on a full time basis. Further, the instrument for ‘specified work’ refers only to ‘any type of work identified in the list below’ and does not explicitly require the work to be conducted on a full time basis.
It follows that the issues for the Tribunal to determine are:
a. Has Mr McLauchlan carried out the requisite specified work in regional Australia?, and, if so,
b. Is the total period of the work carried out at least, or equivalent to, three months full-time work?
CONSIDERATION OF CLAIMS AND EVIDENCE
Issue 1 - Has Mr McLauchlan carried out the requisite specified work in regional Australia?
The documents provided by Mr McLauchlan to the Department include an Employment Agreement with J B Blackwood and Son Pty Limited, a letter from the payroll officer and payslips all identifying him as a “storeperson”. Further, answers to the work questionnaire note that his job title was “stock control/store person” and that his specific duties were “receiving goods, despatch goods, picking items, stocktake, contacting suppliers, heavy lifting and general labour”.
Based on this evidence the Tribunal is not satisfied that the work undertaken by Mr McLauchlan is commensurate with any of the work set out in IMMI 08/048 and is therefore not specified work as required.
Mr McLauchlan therefore does not satisfy cl.417.211(5).
Issue 2 – Is the total period of the work carried out at least, or equivalent to, three months full-time work?
Given the Tribunal’s finding that Mr McLauchlan has not carried out the requisite specified work, it is not necessary to consider this issue.
Conclusion
For the reasons above, Mr McLauchlan does not meet the criteria for grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.
Susan Trotter
Member