1511783 (Migration)

[2016] AATA 3120

1511783 (Migration) [2016] AATA 3120 (27 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Grainne Murray

CASE NUMBER:  1511783

DIBP REFERENCE(S):  BCC2015/1398008 CLF2015/56556

MEMBER:Suhad Kamand

DATE:27 January 2016

PLACE OF DECISION:  Sydney

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 27 JANUARY 2016 AT 2:26PM

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 Immigration on 21 August 2015 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

2. The applicant applied for the visa on 15 May 2015. 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). Relevantly to this case, they include cl.417.211(5) which requires, where an applicant is or has previously been in Australia as the holder of a working holiday visa, the Minister to be satisfied that the applicant has carried out specified work in regional Australia for a total period of at least 3 months as the holder of that visa.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because the delegate was not satisfied that the applicant had completed the prescribed period of specified work.  

4. The applicant appeared before the Tribunal via video link on 27 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Aoife Loftus, a friend of the applicant.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. It is not in dispute that, at the time of application for the visa the subject of this review, the applicant was in Australia as the holder of a Working Holiday subclass 417 visa which was granted on 13 January 2014. She arrived in Australia as the holder of that visa on 25 June 2014 and her visa ceased on 25 June 2015.

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

6. Clause 417.211 requires, amongst other things, 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 3 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 08/048.

7. The issue in this case is whether the Tribunal is satisfied, on the evidence before it that, at the time of application (ie on 15 May 2015), the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a subclass 417 visa.

8. The applicant has declared that she undertook specified work with Barra Barra Investments Pty Ltd (ABN 69131549356) (Barra Barra) from 23 January 2015 and 28 April 2015 at regional postcode 6743 from 23 January until 28 April 2015.

9. The delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, reveals that: on 20 May 2015 the applicant was asked to provide a range of evidence of the specified work completed; on 25 June 2015 the applicant provided a Form 1263, job description, bank authorisation and letter from her employer.

10. In  the Form 1263 provided to the Department[1] the applicant indicates that: she worked as a “farm hand on papaya farm including picking & packing” for Barra Barra Investments Pty Ltd in Kununarra, Western Australia, postcode 6743, for 95 days commencing 23 January 2015 and ending on 28 April 2015. She describes her specific duties as “picking and packing fruit; planting, fertilising; general maintenance[2]. She indicates that she was paid into her bank accounts for this work and her employer gave her payslips. Regarding her remuneration more generally she states “I did paid work and to cover hours did woofing (sic) work too. We got accommodation and food for this.”[3] She adds that she lived in a caravan on the premises while undertaking the above work. This differs from information provided in the Form 1263 submitted to the Tribunal in which:  the applicant described her specific duties as “picking/washing/sorting and packing fruit. Cultivation of seeds and planting of seedlings.”[4] In relation to remuneration the applicant indicates that she was not paid and her employer did not give her pay slips.  She states “I received free accommodation and I volunteered in exchange for my visa days”, living “on the farm” while undertaking the work described.[5] When this anomaly was put to the applicant during her Tribunal hearing the applicant impressed the Tribunal as credible in explaining that: she has never represented that she was paid for her work at Barra Barra; she was, at all times, a voluntary worker who was provided accommodation and a food allowance of $150 for her work there; she and her friend, Ms Loftus, who she is travelling with and lived and worked with at Barra Barra, lodged their working holiday visa applications at the same time and maybe Ms Loftus’ Form 1263 was mixed up with the applicant’s file. The Tribunal accepts that the applicant was not paid for her work at Barra Barra and that she was remunerated for her work there in the form of accommodation and a food/living allowance of $150 a week.

    [1] Folio 39-41, CLF2015/56556

    [2] Ibid, folio 39

    [3] ibid

    [4] Ibid, folio 13

    [5] Ibid, folio 13

11. In the copy of the delegate’s decision record provided to the Tribunal by the applicant, the delegate states that “as the Department was aware of previous misuse of the employers ABN a request was sent to provide financial statements that covered the entire period of the claimed specified work. The Tribunal requested from the Department, details of the “previous misuse” referred to in the delegate’s decision record. The information from the Department was to the effect that, in respect of an unrelated visa application, an applicant suggested that a farmer located at Barrashak, Riverfarm Rd, Kununurra WA 6743 will sign a false statement to facilitate grant of a further working holiday visa. However, as the information provided by the Department was extremely general in nature and further details have not been provided to the Tribunal, the Tribunal draws no adverse conclusion in relation to the applicant or the employer in respect of any issue arising in this review.  

12. The applicant’s evidence to the Tribunal, in addition to the Form 1263 referred to above, also included the following:

    a.a hand-written letter from the applicant’s friend, Aoife Loftus, dated 18 January 2016[6], stating that: she and the applicant both worked at Barra Barra in Kununurra from 23 January to 28 April 2015; she and the applicant had an arrangement whereby Ms Loftus would give the applicant half of Ms Loftus’ wage as Ms Loftus was the paid worker, while the applicant was the Wwoofer who received free accommodation where both the applicant and Ms Murray lived and also received a $150 food allowance.

    b.Emails between Ms Loftus and Dave and Loiuse Schubert, the owners of Barra Barra, dated in January 2015, explaining that Ms Loftus and her friend (the applicant) are both looking for work and are interested in an advertised position at Barra Barra. In an email from Mr and Mrs Schubert, dated 11 January 2015, it is stated that “we can work out an arrangement with the accommodation – what we have done in the past with traveling buddies is one works for pay and the other gets a food allowance of $150pw to buy their own food as you would most likely be sharing meals and share accommodation which is a large caravan with separate toilet and shower. The accommodation is part of the Wwoofer arrangement so there is no rent we don’t charge for the 2^nd person. The paid worker receives $22p/hr”.[7]

    c.An e-ticket receipt evidencing the applicant’s booking for coach travel from Kununurra to Darwin on 11 July 2015[8];

    d.Bank statements for a Westpac account held in the applicant’s name identifying deposits described as “deposit online 2882811 pymt Aoife Loft”. Such deposits are identified on dates in March, April and May which roughly match the pay records provided for Aoilfe Loftus covering the period 27 January until 22 May 2015[9].

    e.A statutory declaration from the applicant, sworn on 26 August 2015, stating that she undertook the specified work in regional dates as detailed above.

    f.A letter from the applicant’s employer dated 28 April 2015 confirming that the applicant worked a volunteer farm hand at Barra Barra from 23 January 2015 until 28 April 2015, undertaking “a total equivalent of 95 working days to date that met those expected under DIAC guidelines of 7-8 hours per day or 35-40 hours per week”.[10]

    [6] Folio 65, Tribunal file 1511783

    [7] Ibid, folio 69

    [8] Ibid, folio 7

    [9] Ibid, folio 24-28

    [10] Ibid, folio 30

13. During her appearance before the Tribunal the applicant was asked to detail her arrangement with Ms Loftus in relation to their work at Barra Barra. Ms Loftus was also asked the same questions. The applicant and Ms Loftus independently gave consistent evidence to the following effect: they have travelled to Australia together; in around January 2015 they returned to Perth from Bali and were looking for work; Barra Barra only had one paid position and one voluntary position which provided accommodation and a food allowance; they both needed to work so the applicant took the voluntary position which provided accommodation in a large caravan where they both could live, together with a food and living allowance of $150 which the applicant and Ms Loftus shared; Ms Loftus took the paid position and agreed to split the wage with the applicant.  The Tribunal asked the applicant why the bank statements she has provided do not identify any deposits from Ms Loftus to the applicant in January of February 2015, with the first deposit from Ms Loftus appearing to take place on or around 6 March 2015. The applicant told the Tribunal that she owed Ms Loftus money so Ms Loftus did not start splitting her wage with the applicant until a few weeks later, once the applicant’s debt was paid off. Ms Loftus independently gave consistent evidence on this point. The Tribunal also notes that, while there is no evidence of pay being transferred from Ms Loftus to the applicant before March 2006, the applicant’s bank records evidence transactions made in Kununurra in early February 2015, and the pay records provided in respect of Ms Loftus support the claim that she was earning a wage from Barra Barra in the last week of January.

14. The Tribunal also asked the applicant and Ms Loftus to describe a typical day at work at Barra Barra, their typical hours and how they spent their weekends. Their evidence was consistent in all respects, and the Tribunal is satisfied that the applicant and Ms Loftus lived and worked together at Barra Barra during the periods identified.

15. The Tribunal considers the evidence before it to be consistent and convincing in relation to all issues arising in the review. While mindful of the delegate’s concerns, the Tribunal has before it persuasive evidence which was not before the department, and has had the benefit of speaking directly with the applicant and her friend/witness.On the evidence before it the Tribunal is satisfied that, between 23 January 2015 and 28 April 2015 the applicant worked on a voluntary basis at Barra Barra fruit farm in Kununurra, postcode 6743, a postcode identified as regional within the relevant instrument. The Tribunal accepts that the work undertaken during that time was in plant cultivation, being a type of work identified as specified work in the relevant instrument. The Tribunal accepts that the work was undertaken for a period of at least three months while the visa applicant was in Australia as the holder of her first subclass 417 visa, and that it was undertaken on or before the time of application for the visa the subject of this review.

16. Based on the above, the Tribunal is satisfied that, at the time of application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday subclass 417 visa.

17. Given the findings above, 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

18. 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.

    Suhad Kamand

    
    

    Member