Nunn (Migration)

[2020] AATA 3795

Nunn (Migration) [2020] AATA 3795 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Charlene Margaret Nunn

CASE NUMBER:  1921605

HOME AFFAIRS REFERENCE(S):          BCC2019/1638254

MEMBER:Joseph Lindsay

DATE:9 September 2020

PLACE OF DECISION:Melbourne

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 9 September 2020 at 2:21pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia for three months – work tasks can be described as ‘construction work’ – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 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 Home Affairs to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 2 April 2019. The delegate refused to grant the visa on 18 July 2019.

2. The applicant was initially granted a Class TZ visa on 31 August 2017. She arrived in Australia on 8 July 2018.

3. The delegate refused the applicant’s visa application because the delegate formed the view that the applicant did not meet the legal requirement set out in Regulation 417.221 of the Migration Regulations 1994 (the Regulations).

4. Part 417 of Schedule 2 to the Regulations specifies the criteria for a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa. Applicants are required to meet the requirement under Regulation 417.221 of the Regulations, including Regulation 417.221(5) that states:

   (5) If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:

   (a) the applicant has carried out 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 at least 3 months; and

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

5. The term “specified work” is defined in subitem 1225(5) of Schedule 1 of the Regulations to mean “work of a kind specified by the Minister in an instrument in writing for this definition.”

6. A list of specified work definitions can be found in Legislative Instrument Migration (LIN 20/182: Subclass 417 (Working Holiday) visa—Specified work and places) Instrument 2020 dated 18 August 2020. This instrument provides further detail about what kind of work would satisfy the definition of “specified work” for the purposes of the Regulation and includes “Construction work.” Such work includes:

   (a) building construction;

   (b) heavy and civil engineering construction;

   (c) land development and site preparation services;

   (d) building structure services;

   (e) building installation services;

   (f) building completion services.

7. On 9 September 2020, the applicant attended a hearing with the Tribunal to give further information in respect to her application.

8. The Tribunal considered the information the applicant had provided to the Department.

9. The Tribunal notes that the applicant claimed she had worked for Great Keppel Island Hideaway Pty Ltd from 1 November 2018 to 29 January 2019 in the 4700 regional postcode area. The Tribunal notes the payslips, the contract agreement, bank statements and superannuation statement provided by the applicant.  

10. The applicant gave evidence to the Tribunal that she was employed in what could be described as building construction. She gave examples of such work, including general construction and maintenance, renovating cabins, sanding and painting affected buildings and tidying up construction areas.

11. The Tribunal asked the applicant about her role in “disaster recovery (Cyclone Marcia and Cyclone Debbie) and assisting with the revegetation of dune areas affected in construction of revetment wall for cyclone protection.” In response, the applicant gave evidence that when she did the period of disaster recovery work, this did include building construction work and land development and site preparation services.

12. She confirmed that he did work for at least three months for Great Keppel Island Hideaway Pty Ltd.

13. She confirmed that she did work at Great Keppel Island in Queensland, postcode 4700.

14. She also confirmed that she had been remunerated for the work in accordance with relevant Australian legislation and awards, in compliance with Regulation 417.221(5)(c) of the Regulations.

    Findings

15. The Tribunal has considered the above information and accepts that credible information appears to have been provided to the Tribunal in respect to the applicant’s work history.

16. The Tribunal finds that the applicant did work for Great Keppel Island Hideaway Pty Ltd from 1 November 2018 to 29 January 2019, and therefore finds that the total period of the work carried out is, or is equivalent to, at least 3 months’ full-time work, in compliance with Regulation 417.221(5)(b) of the Regulations.

17. The Tribunal has considered the applicant’s her role in “disaster recovery (Cyclone Marcia and Cyclone Debbie) and assisting with the revegetation of dune areas affected in construction of revetment wall for cyclone protection.” The Tribunal has considered the applicant’s evidence and finds that the work she undertook could be described as “construction work.”

18. The Tribunal finds that during her employment the applicant worked in building construction, and therefore finds that this work was “construction work” and was “specified work” as defined above at section 7 of the Migration (LIN 20/182: Subclass 417 (Working Holiday) visa—Specified work and places) Instrument 2020 dated 18 August 2020.

19. In addition, the Tribunal finds that the applicant undertook this work in regional Australia in accordance with subitem 1225(5) of Schedule 1 to the Regulations because the applicant’s employer’s postcode is 4700 and this postcode is within the postcode range (4522 to 4899) as stated in Table 2 of section 7 of the Migration (LIN 20/182: Subclass 417 (Working Holiday) visa—Specified work and places) Instrument 2020 dated 18 August 2020. Accordingly, the Tribunal finds that the applicant has satisfied the requirements of Regulation 417.221(5)(a) of the Regulations.

20. The Tribunal finds that the applicant appears to be have been remunerated for the work in accordance with relevant Australian legislation and awards, in compliance with Regulation 417.221(5)(c) of the Regulations.

21. In balancing the above circumstances, the Tribunal finds that the applicant has met the requirement under Regulation 417.221(5) of the Regulations.

    DECISION

22. 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

    Joseph Lindsay
    Member