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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 2610
Decision Date: 13 September 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr McLauchlan concerning his application for a Working Holiday (Temporary) (Class TZ) visa, Subclass 417. The central dispute revolved around whether Mr McLauchlan had fulfilled the work requirements stipulated for this visa subclass.

The Tribunal was required to determine if Mr McLauchlan had, at the time of his visa application, carried out specified work in regional Australia for a total period equivalent to at least three months of full-time work, as a holder of a Subclass 417 visa. This determination involved interpreting the definitions of "specified work" and "regional Australia" as provided by the relevant legislative instrument, IMMI 16/087.

The Tribunal reasoned that Clause 417.211 of Schedule 2 to the Regulations, read in conjunction with IMMI 16/087, mandated that the applicant must have completed the specified work in regional Australia. The instrument defined "regional Australia" to include the entire Northern Territory and listed various categories of "specified work," such as plant and animal cultivation, fishing and pearling, tree farming and felling, mining, and construction. The Tribunal concluded that Mr McLauchlan had not demonstrated that he met these criteria. Consequently, the Tribunal affirmed the decision not to grant Mr McLauchlan the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 TrotterMember

Ratio Decidendi

Legal Principle Established

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