Shovlin (Migration)

[2023] AATA 1833

Shovlin (Migration) [2023] AATA 1833 (27 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sarah Shovlin

CASE NUMBER:  2210106

HOME AFFAIRS REFERENCE(S):          BCC2019/6978369

MEMBER:K. Chapman

DATE:27 March 2023

PLACE OF DECISION:  Brisbane

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(6) of Schedule 2 to the Regulations.

Statement made on 27 March 2023 at 4:44pm  

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – equivalent of at least six months’ full-time work – mining support services – work which supports the ongoing operations of a specified industry – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 417.211

CASES

Re Drake (No. 2) (1978-1980) 2 ALD 634

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, on 11 July 2022, to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant applied for the visa on 3 January 2020. 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 (Cth) (‘the Regulations’). Relevantly to this case, they include cl 417.211(6).

3. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 417.211(6), due to a lack of satisfaction she completed 6 months of ‘specified work’ in ‘regional Australia’, whilst holding an eligible visa. On 12 July 2022, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application. The applicant appeared by video before the Tribunal on 7 March 2023 to give evidence and present arguments. The applicant confirmed she was comfortable participating in the hearing by video. The Tribunal notes that it affords the evidence of the applicant high weight, as it assesses her to be a witness of credit.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this review is whether the applicant completed 6 months of ‘specified work’ in ‘regional Australia’, whilst holding an eligible visa, to meet the requirements to be granted a third Subclass 417 visa.

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

6. Clause 417.211(6) requires that, at the time of the visa application, the applicant had carried out ‘specified work’ in ‘regional Australia’ for a total period of at least 6 months. All such work must have been carried out on or after 1 July 2019 and while the applicant held an eligible visa. As is relevant to the present review, eligible visas include the second Subclass 417 visa or a Bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa). The applicant must also have been remunerated in accordance with relevant Australian legislation and awards.

7. The terms ‘specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose. The applicable instrument in this review is IMMI 17/018. The Tribunal notes that as the applicant applied for the visa prior to 14 November 2020, subsequent Ministerial instruments have not altered the application of the substantive provisions of IMMI 17/018 to the present review.

8. At the review hearing, the Tribunal canvassed the relevant work experience of the applicant. She has been employed in regional Australia for a significant time, primarily in the Western Australian mining sector on a Fly-In Fly-Out (FIFO) basis. The applicant has, at all relevant times, acknowledged that as the holder of a second Subclass 417 visa she initially performed work for Compass Group Pty Ltd in hospitality roles at mining camps. The applicant explained to the Tribunal that when the third Subclass 417 visa program was announced, she approached her employer to transfer duties to perform ‘specified work’ at mining camps. This being amenable to her employer, in June 2019, the applicant transferred roles to become a Trades Assistant in the mining sector.

9. The applicant advised the Tribunal that as a Trades Assistant, she assisted qualified tradespersons to maintain and repair items such as air conditioning units, light fittings, bain marie’s and furniture. In her role, the applicant assisted trades such as carpenters, mechanical fitters and electricians. Whilst undertaking this role, the applicant was employed on a two week on and one week off FIFO roster arrangement, working a minimum of 12 hours per day when on duty. The submitted reference from Mr Tyrone Smith, the supervisor of the applicant when she was employed by Compass Group Pty Ltd, confirms she worked as a Trades Assistant from June 2019, having transferred from a prior hospitality role. Submitted pay records pertaining to the applicant confirm she was employed by Compass Group Pty Ltd at the relevant times, from June to December 2019, in excess of 179 days. The Tribunal notes it observed the applicant to provide her evidence at hearing in a fashion consistent with the submitted documentary material.

10. The Tribunal notes, as is relevant to this review, that specified work may be performed in the mining sector, including in ‘mining support services.’ The delegate determined that as the applicant’s payslips recorded her to be employed by Compass Group Pty Ltd as a ‘Utilities Attendant’, in combination with the company providing hospitality services (as one line of business operation), she was employed within the ‘Tourism and Hospitality Industry.’ Having regard to the submitted evidence, including that given at the review hearing, this is an assessment with which the Tribunal disagrees. Noting each matter turns on its own particular facts, it is apparent to the Tribunal that the applicant was employed as a Trades Assistant in the mining sector from June to December 2019. On balance, the Tribunal is satisfied that the title of ‘Utilities Attendant’, recorded on the applicant’s payslips, was utilised for administrative convenience by her employer. Indeed, the preponderance of submitted evidence suggests the applicant was employed as a Trades Assistant, in regional Australia, during the relevant times.  

11. Additionally, the Tribunal notes that Department policy, concerning specified Subclass 417 work, is presently contained on its website. Whilst the Tribunal is not bound by such policy, it may apply it in appropriate circumstances: Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634. Relevantly, Department policy provides:

    “In support of the Government's continuing initiatives to address the current labour shortages in Australia, the Department is temporarily applying flexibility to the specified work requirement, giving greater weight to the specified work industry. This means that work which supports the ongoing operations of a specified industry in an eligible postcode may be accepted.” [1]

    [1] accessed 27 March 2023 by Member K. Chapman.

12. The Tribunal forms the view that it is appropriate to apply the current permissive Department policy, regarding specified Subclass 417 work, to the assessment of ‘specified work’ in this review. This is particularly so given present labour market conditions. Accordingly, a pernickety approach to the assessment of specified work is unhelpful. Having regard to the submitted evidence holistically, the Tribunal is satisfied that the applicant performed six months of ‘specified work’ in ‘regional Australia’, being employment within the category of ‘mining support services.’  The applicant also held an eligible visa at the relevant times. Additionally, having regard to submitted pay records, the Tribunal is satisfied the applicant was appropriately remunerated.

13. For the reasons outlined above, the Tribunal finds that the applicant satisfies cl 417.211(6). Accordingly, 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

14. 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(6) of Schedule 2 to the Regulations.

    K. Chapman

    
    

    Member