1601770 (Migration)

[2016] AATA 4808

1601770 (Migration) [2016] AATA 4808 (12 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MEI-MEI LIN

CASE NUMBER:  1601770

DIBP REFERENCE(S): BCC2015/2368084 BCC2016/15338

MEMBER:Meena Sripathy

DATE:12 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 12 December 2016 at 3:26pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Specified work in regional Australia – Contradictory evidence

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 417.211, cl 417.111, IMMI 08/048

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 27 January 2016 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 August 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) because of insufficient evidence to establish that she undertook specified work as claimed in her application.

4. The applicant appeared before the Tribunal on 28 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. 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 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. In her application for the visa the applicant declared she undertook specified work with Four Seasons Labour Pty Ltd between 20 April 2015 and 9 August 2015 in the 2720 postcode area. She provided Form 1263, job description, bank statements, payslips and a payment summary to support her claimed employment to the Department  However it was observed that only 3 payslips were provided and concerns were expressed about whether they were genuine.  It was also observed that the bank statement provided did not show employer wage details.

8. Before the Tribunal the applicant provide the following additional evidence: a transaction listing from her CBA account for the period April to September 2015; a letter from Four Seasons confirming the applicant’s employment in the claimed period; a PAYG Payment summary for the periods 23 March 2015 to 30 June 2015 and 1 July 2015 to 24 February 2016 indicating payment of wages to the applicant by Four Seasons Labour; an Annual Member Statement from REST Industry Super indicating 2 employer contributions by Four Seasons Labour amounting to $312.93 and $278.63 in October 2015 and March 2016; and a letter from a friend who states she worked with the applicant on the apple farm. 

9. She told the Tribunal that she worked on an apple farm, having found this employment though a backpacker website she searched for workplaces for the purposes of making a second working holiday visa application.  She was unable to remember the name of the farm or the area.  With the Tribunal’s permission she looked it up on her phone and showed the Tribunal an address 2/36 Bartoman St, Batlow where she stayed with other workers on the farm. She paid rent there of $110 per week.  When asked to describe her hours of work she said she worked 6 days a week.  She was not clear about the number of hours, saying it was not regular and they were paid by the quality of work not the hour.  She acknowledged that her work was not always of high quality.  The Tribunal asked her how she obtained her payslips.  She said the accountant of the company provided them.  The Tribunal noted that the payslips indicate her address as Berala.  She said this was her relatives’ address.  It put to her the payslips indicate an hourly rate of pay. She said she was not paid on that basis, she was paid for the amount of apples picked. The Tribunal put to her that on her evidence, an issue arises as to whether she worked the equivalent of full time and also whether she was paid in accordance with Australian legislation and awards.  In response she acknowledged that she was not very well in that period and may not always have worked 5-6 hours, but she did go there for the purposes of getting her second working holiday visa.  The Tribunal indicated another issue arising in her case is that the bank transaction list submitted does not provide evidence to support she was paid by the employer or that she was in the area of claimed work.  In response the applicant said she has asked her employer for documents but they only gave her those she has submitted.  She has no other evidence.  When asked if she has evidence of transactions made while living in the area of claimed employment, she said she had few expenses and used her savings. 

10. The Tribunal allowed the applicant one week to submit any further evidence or otherwise respond to issues discussed during the hearing about whether she undertook the claimed employment.  To date no further information, evidence or submissions have been provided.  Therefore the Tribunal has considered the material before it, and makes the following findings. 

11. The evidence before the Tribunal to support the applicant’s claimed employment at an apple orchard between April to August 2015, are three payslips, indicating work of 18 hours a week; and a superannuation statement indicating 2 contributions by Four Seasons Labour in October 2015 and March 2016, her PAYG payment summaries and bank transaction statement, showing regular transfers from ‘CBA Netbank’ notated as ‘wages’, but showing no withdrawals. When questioned at the hearing about the number of hours worked per week, she was vague and non specific about this and other details of her claimed work.  She was unsure of the name of the farm she worked at and had difficulty even recalling the area it was in or where she lived, although the Tribunal is prepared to accept that this may be explained by her unfamiliarity with the language and geography of NSW.  She told the Tribunal she was paid by the amount of fruit they picked and not by the hour.   She also acknowledged however that she was not well in this period and may not have worked that much. This contradicts the evidence she has submitted in the payslips which indicates payment on an hourly basis, at the rate of $22 per hour.  The contradictory evidence leads the Tribunal to have concerns about the veracity of her claimed employment, including whether she worked at the claimed place, for how many hours and at what pay.  On the evidence before it, the Tribunal is not satisfied the applicant worked full time picking apples as claimed in the period claimed.  Furthermore, the applicant has provided no other evidence to support that she lived in the locality of the claimed employment during the period of the employment. The bank statements, superannuation statement and payslips all provide an address in Berala, postcode 2141, which she has indicated belongs to her relative in Sydney.  She has provided no further evidence to support that she lived in Batlow as claimed. 

12. For these reasons, the Tribunal does not accept that the applicant worked full time picking apples at an orchard between 20 April 2015 and 9 August  2015.  It is not satisfied therefore that she has carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Working Holiday visa. 

13. Therefore, the applicant does not satisfy cl.417.211(5) and does not meet the criteria for the grant of the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Meena Sripathy

    
    

    Member