McManamon (Migration) [2018] AATA 2201 (14 May 2018)

The decision can be found on the Austlii website.

This case concerns what constitutes ‘specified work’ necessary to successfully apply for a Working Holiday extension.

Facts

The applicant to the AAT, Mr Gary McManamon, worked in a regional area. His job was primarily helping build metal structures for farms including fabrication of silos, loading them onto trucks and erecting them on site.

The decision maker at the Department of Home Affairs refused the visa in August 2017 for the reason that the Department was not satisfied that McManamon completed ‘specified work’. This was because McManamon put down on his forms that he was involved in the maintenance and repair of vehicles as well as being listed as a ‘sheet metal worker’.

Law

Clause 417.211(5) of the Migration Regulations 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 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, which can be found here.

The instrument contains mainly farm-related, primary industry jobs including fishing, mining and construction.

Decision

McManamon went before the Tribunal and explained the nature of his work. This can be found in [18]–[19] of the AAT decision linked above. The tribunal then found that in [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. (emphasis added)

Conclusion

This is an important decision that shows the approach to determining whether someone has undertaken ‘specified work’ is to look at all the evidence from the applicant, particularly the duties of a normal day at work. The test seems to be that as long as the work ‘generally falls’ within the Instrument, it will meet cl 417.211(5).