Harradi (Migration)

[2021] AATA 2831

Harradi (Migration) [2021] AATA 2831 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Amel Harradi

CASE NUMBER:  2004836

HOME AFFAIRS REFERENCE(S):          BCC2019/5676958

MEMBER:Linda Holub

DATE:30 June 2021

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 30 June 2021 at 11:40 am

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – period of work was 73 days – period of three months full time work requirement not met – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 417.111, 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 20 February 2020 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 11 November 2019. 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 417.21.

3. Clause 417.211(5) states:

   (5) If the applicant has held only one Subclass 417 visa in Australia, the Minister is satisfied that:

   (a) the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa; and

   (b) the total period of the work carried out is at least 3 months; and

   (c) the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

   * specified work means work of a kind specified by the Minister in an instrument in writing for the definition of specified work in sub-item 1225(5) of Schedule 1. A list of specified work definitions can be found in Legislative Instrument IMMI 17/018: Working Holiday Visa –Specified Work and Regional Australia.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5)(a)(b) and (c) because having considered the evidence provided the applicant, the delegate found that the applicant has not completed specified work in a regional area as stipulated in Regulation 417.211(5)(a), for a 3 month period as stipulated in Regulation 417.211(5)(b) and that they have been remunerated appropriately for this work completed as stipulated in Regulation 417.211(5)(c). As such, the applicant fails to meet Regulation 417.211(5) in its entirety.

5. The applicant appeared before the Tribunal on 15 June 2021 to give evidence and present arguments via a video hearing through the Microsoft Teams application as the applicant is in Melbourne and the Member is in Sydney. The Tribunal also received oral evidence from her boyfriend (also through the Microsoft Teams application) and her previous employer who was connected by telephone.

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

BACKGROUND

1. The applicant was born in Algeria in July 1996 and is a French citizen. She was granted a Working Holiday (Temporary) (Class TZ) visa in September 2018 and arrived in Australia on 9 November 2018.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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 3 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 is IMMI 17/018.

2. The issue in this case is whether the applicant meets the requirements of clause 417.211(5).

Evidence provided in support of the application

Written evidence

10)In her application the applicant stated that she was employed by M+C Lews Farm Pty Ltd, trading as Clare Lewis. The company’s ABN as provided by the applicant is 40622954330 and the employer’s address is Springdale Road, MUNGLINUP Western Australia, 6450. She stated that she was employed there from 4 August to 3 November 2019 and provided the Department with copies of her payslips covering the period from 4 August until 17 November 2019.

11)The Department requested that the applicant provide further information as follows:

·     that she has sufficient money for her personal support during her stay in Australia

·     that she has sufficient money to depart Australia

·     evidence to support her claims that she has been remunerated in accordance with relevant Australian legislation and awards by her nominated employer, for the period of employment listed on the application form

·     a copy of her position description

·     further information that describes all of the duties and tasks she carried out at M+C Lewis Farm Pty Ltd in WA

·     the number of days per week and hours each day she worked for the business.

12)The applicant was given 28 days to provide this information to the Department. In response, the applicant resubmitted copies of payslips and provided copies of a two Commonwealth Bank letters of account balance details and transaction listings of Commonwealth Bank Smart Access account.

13)The Tribunal was provided with copies of her payslips and Commonwealth Bank letters of account balance dated 15 January and 11 March 2020, transaction listings of Commonwealth Bank Smart Access account for the period 8 August to 5 November 2019. They show at an amount of $552 was transferred into the account the CBA Netbank, except for 8 August 2019 when $331 was transferred and 5 November 2019 when $527 was transferred. In addition, the applicant provided:

·     a document titled Blue Water – Munglinup” which describes a property, including what it produces, availability of mobile services, where and how water is obtained the seasonality of the work. It contains two handwritten annotations which state:

i.“emailed to Amel: 26 February 2020”’

ii.“You would have been working when we were lamb marking. You should look up meusling lambs so you can see the cradle and how this is done.”

·    A copy of a Telstra bill for the period 26 January to 25 February 2020.

·     Undated and unannotated photographs of the applicant with a friend and her boyfriend.

·     Copies of flight itinerary showing a booking for a one-way flight from Melbourne to Perth on 31 July 2019 and from Perth to Esperance on 1 August 2019.

·     A letter of support from the applicant’s friend Rodas Daniels stating that they completed farm work together in Munglinup, WA from 4 August 2019 through to 17 November 2019. In the letter she states that their main job on the farm was to breed merino sheep and angus cows. Ms Daniels also provided samples of her pay slips.

14)In her undated submission to the Tribunal, the applicant stated that she thought all the necessary documents had been provided to the Department. She stated that she had forgotten to include a copy of the position description. She states that she generally completed the 88 days farm work. She stated that she provided one of her pay slips as further proof that they were working at the same time as the applicant and in the same place.

Evidence provided at hearing – 15 June 2021

15)The Tribunal explained to the applicant that it had reviewed her pay slips which indicate that aside from the first week when she arrived the property, she was working five days per week. Having calculated the days she worked on the basis of the dates she provided and her payslips it appears that she worked for 73 days not the required period. The Tribunal worked through the dates with the applicant and having done that she agreed that it appeared that she had worked 73 days.

16)The applicant stated that she may have worked six days per week. The Tribunal responded that her payslips do not indicate that. She stated that maybe there was some use of her superannuation by her employer to cover the extra time. The Tribunal explained to the applicant that the employers have certain obligations to report superannuation contributions and salaries to the Australian Taxation Office and it would be highly irregular if her employer was doing that.

17)The applicant stated that she is confused about why the days she worked don’t add up to being at least 3 months. The Tribunal asked her if she wished to have an adjournment so that she could think about what might have occurred and check her own records.

18)Following the adjournment, the applicant stated she confused as to the missing days between the 73 days that the Tribunal had calculated with her and the 98 days, she thought she had worked.

19)The applicant stated she thought she had a contract and then said that she cannot recall being provided with a contract.

20)The Tribunal asked her about a pay slip for period ended 10 November 2019 which appears different to the others in that it refers to the Department as Bistro and includes an hourly rates and was provided by Lewis Lewis Properties Ptd Ltd rather an M&C Lewis Farm Pty Ltd. She stated that the employer may have been using a different account from which to pay her. She stated that it would be best if the Tribunal calls her previous employer discuss with her.

21)The applicant stated that her duties involved assisting sheep with daily activities, learning about breeding, and shaving the sheep.

Witness evidence

22)Michael Sims provided oral evidence in support of the applicant. He stated they were dating for about four or five months prior to the applicant’s decision to do the farm work. He stated that she did the work in order to be able to stay in Australia. He stated that he knows that she did her farm work because they spoke and Facetimed together while she was away. He also stated that he visited her at one point. He referred to a photo the applicant submitted showing them together.

23)Mr Sims stated that he knows that the applicant worked long hours and some weeks she worked six days. He stated that she was taking care of sheep including mulesing, feeding and shearing. He stated that she did not completely enjoy her time on the farm, but she got through it. 

24)The applicant’s former employer Clare Lewis provided evidence by telephone after some initial difficulties connecting her to connect to the Microsoft teams hearing. She confirmed that the farm employs workers from overseas and has done so for some time. When asked if the applicant was provided with a contract, she stated that she could not recall. She stated that she’s not sure if they provided contracts at that time. She stated that they haven’t always offered contracts although the conditions are discussed with anyone to whom they are offering a job. She stated that once employed, they provide their employees pay slips.

25)The Tribunal put it to Ms Lewis that the pay slips do not show whether the applicant was paid according to the relevant award as set down by the Fair Work Ombudsman. She responded that she could provide further evidence in regard to the applicant’s employment.

26)Following the evidence provided by her previous employer, the applicant stated that she now realises she made a mistake. She stated that she should have asked for help and double-checked her pay slips. She also realises she should have asked for a contract.

Post hearing evidence

27)After the hearing the applicant provided the Tribunal with post-hearing evidence which included a letter from her previous employer, a copy of the Fair Work Ombudsman’s Pastoral Award - Pay Guide, and copies of pay slips previously provided.

28)In the covering email of 28 June 2021, applicant submitted:

To further explain, there are a total of 14 weeks of payslips from the Blue Water Farm. During those 14 weeks I stayed and lived on the farm while working. So, when calculated the total number of days on the farm was 98 days (7 days x 14 weeks).

After farm work, I worked at their Bistro in Esperance to gain extra money before leaving (hence the bistro payslips).

29)In the letter dated 24 June 2021 by Clare Lewis she lists the applicant’s award as he Pastoral Award and her classification as Farm and Livestock Hand – Level 1. The period of the visa applicant’s employment noted on the letter is 2 August to 3 November 2019. She referred to the amount for board and keep at $135 per week and that superannuation was paid into the nominated superannuation fund. It states that the applicant was paid $130 per day which equates to $650 per week and that this was above the award rate. The letter states the applicant’s duties included:

·  Assisting with sheep work including drafting, filling yards

·  Maintenance of sheep yards, including chipping weeds

·  Assisting with water and cleaning troughs

·  Fence repairs

·  Feeding sheep

·  Assisting with keeping home yards clean and tidy.

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

30)The Tribunal has considered the totality of the evidence provided.

31)Based on the evidence provided, the Tribunal accepts that the applicant has carried out specified work in Australia as the holder of a Subclass 417 visa and therefore she meets the requirements of clause 417.211(5)(a). However, the evidence provided by the applicant does not substantiate her claim that she worked there for 98 days nor does it substantiate that she carried out at least 3 months’ work in a prescribed area of regional Australia.

32)The applicant submitted in her post hearing evidence that on the basis of her staying and living on the farm while working 7 days per week over 14 weeks, she undertook a total period of 98 days on the farm. The Tribunal acknowledges that if she stayed on the farm every day for 14 weeks it would amount 98 days. However, it appears that the applicant has misconstrued the requirement of Clause 417.211(5)(b).

33)Clause 417.211(5)(b) requires the total period of the work carried out is at least 3 months not that an applicant resides in a prescribed area of regional Australia for that period.

34)At hearing the applicant agreed that on the basis of the written information she provided in support of her application, she worked 73 days in total from 4 August to 3 November 2019 which is the period she worked on the farm.

35)The Tribunal considered whether the visa applicant may have worked very long days which could be considered to amount to a total period of the work carried out of at least 3 months. The Tribunal notes that there was reference to her working long days during the hearing, including by the visa applicant’s boyfriend. However, no evidence was submitted that substantiates the length of her days while she was working on the farm and that it would amount to a total period of at least 3 months.

36)The Tribunal notes that the pay slips provided by the applicant show that she worked in Esperance from 4 August until 17 November 2019. In relation to that additional two-week period, in her post-hearing email, the applicant explained that after she finished the farm work, she worked at the farm’s bistro in Esperance to gain extra money before leaving (hence the bistro payslips).

37)The Tribunal accepts that the applicant worked for Ms Lewis from 4 August to 17 November 2019 and that work satisfied the requirement of specified work. However, no evidence was provided regarding the work she undertook at the bistro and therefore the Tribunal is unable to determine if the work carried out by the applicant was specified work and whether applicant was remunerated for the work in accordance with relevant Australian legislation and awards. Further, even if the Tribunal accepts that it was specified work and she was paid in accordance with relevant Australian legislation and awards, the Tribunal does not accept that the total period of the work carried out was at least 3 months:

·      The pay slip for the pay period 4-10 November 2021 shows that the applicant worked 24.25 normal hours, 3.25 hours on Saturday and 5 hours on Sunday – totalling 32.5 hours over that week.

·     The pay slip for the pay period 11-15 November 2021 shows that the applicant worked 19.50 hours.

38)Even if the Tribunal assumed a further 10 days on top of the 73 days the applicant agreed she worked, it would total 83 days but still not amount to total period of at least 3 months.

39)In relation to whether the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards in accordance with Clause 417.211(5)(c) the Tribunal notes that the copy of the pay guide for the Pastoral Award provided by the applicant became effective on 30 November 2020. This pay guide came into effective after the period the applicant was employed by the farm. Based on the information contained in the letter from her employer, Ms Lewis, the applicant was paid less than the rates shown in that particular pay guide. However, the Tribunal is prepared to accept that the applicant was paid in accordance with the relevant legislation and awards for her work on the farm from 4 August to 3 November 2019.

40)However, as the Tribunal is not satisfied that the applicant meets Clause 417.211(5)(b) as she did not carried out a total period of the work of at least 3 months a finding on whether the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards is not required. As the applicant does not satisfy cl 417.211(5)(b), she does not meet cl 417.211(5).

41)The Tribunal accepts the visa applicant genuinely intended to undertake the full period required. It appears she misunderstood the requirements and therefore the Tribunal is sympathetic to her situation. Unfortunately, the evidence put forward by her does not substantiate that she meets the visa requirements.

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

DECISION

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

Linda Holub

Member