Etheve (Migration)

[2023] AATA 1539

Etheve (Migration) [2023] AATA 1539 (16 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ophelie Sophie Tsimbiliki Etheve

REPRESENTATIVE:  Ms Claudia Mariani (MARN: 1808037)

CASE NUMBER:  2211779

HOME AFFAIRS REFERENCE(S):          BCC2020/1477820

MEMBER:David Crawshay

DATE:16 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2023 at 1:02pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – LIN 20/103 – remuneration in accordance with relevant Australian legislation and awards – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 417.211

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 26 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 May 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(5) which requires, among other things, an applicant to have carried out a period or periods of specified work in regional Australia for at least three months and to have been remunerated for that period or those periods of specified work in accordance with relevant Australian legislation and awards. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5)(c). The delegate was not satisfied that the applicant had been remunerated appropriately for the entire period of specified work completed with her purported employer and was therefore not satisfied that she had been remunerated for the work in accordance with relevant Australian legislation and awards.

3. The applicant appeared before the Tribunal on 16 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal accepts that the duties described by the applicant correspond with “plant and animal cultivation” under the instrument. It is also satisfied that the specified work was carried out in “regional Australia”. The issue in this case is whether the applicant has been remunerated for the entirety of the period of her specified work in accordance with relevant Australian legislation and awards.

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

6. Clause 417.211(5) 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 three months as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. “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 at that time was LIN 20/103.

7. The Tribunal has considered 16 payslips from an entity known as “Royally Group Pty Ltd” to the applicant for the period from 9 September 2019 to 31 December 2019. It has cross-referenced the net amount from these payslips against a bank statement covering the period from 10 July-to-31 December 2019 given by the applicant. From this cross-reference, it was revealed that the amounts listed on nine payslips[1] were not reflected in the applicant’s bank statement and are therefore unable to be substantiated based on that bank statement.

   [1] Being the amounts for the periods 16-to-22 September 2019; 14-to—20 October 2019; 21-to-27 October 2019; 18-to-24 November 2019; 25 November-to-1 December 2019; 2-to-8 December 2019; 9-to-15 December 2019; 16-to-22 December 2019 and 25-to-31 December 2019.

8. Of the remaining seven payslip amounts that either corresponded with or were almost identical to payments made into the applicant’s bank account, none was made by Royally Group Pty Ltd. Instead, three were in the form of transfers from “CBA Commbank app” with the description “wages” while the other four were made by “MEET GROUP PTY LTD” with the description “Wages”.

9. In a submissions letter dated 9 March 2023, the applicant’s representative spoke to substantially the same details as above (except that the letter erroneously stated that the bank statement shows nine payments received when the real figure is seven). Additionally, the letter stated that the three transfers from “CBA Commbank app” were transfers from a man called Corey, who was said to have been paid on the applicant’s behalf. The balance of the letter detailed the unsuccessful efforts to tie MEET GROUP PTY LTD to Royally Group Pty Ltd, including that a person who “appeared” to be an accountant for Royally Group said that he did not know MEET GROUP PTY LTD. The letter stated that the other payments were paid in cash to the applicant by Corey.

10. At hearing, the Tribunal heard from the applicant that she travelled to Australia in May 2019 full of dreams and ready for adventure, but without speaking English. She said that she initially worked in Wonga Park in Victoria where she met Corey, who convinced her to move with him to Valery in New South Wales where she could lodge at his family’s house while undertaking farm work. Having moved to Valery, she said that she met a representative of Royally Group. She said that she did not pay attention to the details, but just followed what happened. She said that most of the payments were cash-in-hand payments made to Corey who would then make further payments to her.

11. Having considered all the information in front of it, including the above information, the Tribunal makes the following findings. In relation to the four transfers made by MEET GROUP PTY LTD, there is no information demonstrating that that entity is associated in any way with Royally Group Pty Ltd. Based on this finding, the Tribunal does not accept that the payments made by that entity to the applicant were for work carried out by her for Royally Group Pty Ltd. In terms of the claim by the applicant that she was paid cash-in-hand from Corey for some of the periods of work, it gives this claim very little weight in the absence of evidence. Based on this finding, it does not accept that these claimed payments were made.

12. The Tribunal has a great deal of sympathy for the applicant who appears to have been naïve about her workplace rights including in terms of remuneration. However, and as explained to her at hearing, the requirements of the legislation are clear. Based on the above findings, the Tribunal is not satisfied that the applicant has been remunerated for the entirety of the period of her specified work in accordance with relevant Australian legislation and awards

13. Therefore, the applicant does not satisfy cl.417.211(5)(c), which is a necessary criterion for the grant of the visa.

14. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

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

    David Crawshay

    
    

    Member