Ibbotson-Smith (Migration)

[2023] AATA 221

Ibbotson-Smith (Migration) [2023] AATA 221 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Rhiannon Ibbotson-Smith

CASE NUMBER:  2112055

HOME AFFAIRS REFERENCE(S):          BCC2020/1569198

MEMBER:David Crawshay

DATE:10 January 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 10 January 2023 at 12:38pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa – Tribunal is not satisfied that the applicant has carried out at least three months of specified work – the applicant is only entitled to count the 41 days she carried out specified work – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, Schedule 2, cls 417.211, 417.221

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 8 September 2021 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 18 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, among other things, requires an applicant for a second Working Holiday visa to have carried out a period or periods of specified work in regional Australia and to have been remunerated for that work in accordance with relevant Australian legislation and awards.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5) and cl.417.221 because the delegate found that some of the work carried out by the applicant was not specified work. The delegate also found that the applicant was paid below the minimum rate in one of her roles. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

4. On 3 January 2023, the Tribunal wrote to the applicant advising her that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited her to give oral evidence and present arguments at a hearing on 27 January 2023. On 6 January 2023, the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. On 10 January 2023, an officer of the Tribunal rang the applicant to clarify that she consented to the Tribunal proceeding without a hearing and she confirmed that this was her intention. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has carried out the requisite specified work and whether she was remunerated for some of that work in accordance with relevant Australian legislation and awards.

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

7. 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 is LIN 20/103. The work categories under that definition of “specified work” in that instrument are construction, fishing and pearling, plant and animal cultivation, mining, and tree farming and felling.

   Mills Hotel Pty Ltd

8. The applicant claimed in her application form dated 18 May 2020 to have completed 49 days of work for Mills Hotel Pty Ltd (Mills Hotel) from 23 December 2019 to 1 March 2020. Under the heading of “Work conditions” in that application form, she gave “Agriculture, forestry and fishing” as her industry type and “planting, pruning and food preparation” as the description of her duties. Nine payslips from December 2019 to March 2020 show the applicant receiving salary from Mills Hotel. The payslips list her as being paid under the classification “HIGA Introductory Level”.

9. In a letter dated 26 December 2022 in response to an earlier letter from the Tribunal dated 13 December 2022, the applicant conceded that the duties she carried out at Mills Hotel were “not applicable”.

10. The Tribunal has considered the information in front of it, including the above information. It finds that the duties described by the applicant in her application form do not correspond with any of the kinds of work listed in the instrument under “plant and animal cultivation”. Specifically, while it acknowledges that the applicant may have engaged in “pruning”, there is no evidence that this duty was performed with a view to cultivation, which is required by Item 3(b) of s.7 of the instrument. Similarly, while the applicant claims to have engaged in “planting”, there is no evidence that this planting was done in the process of “cultivating or propagating plants, fungi or their products or parts” as required by Item 3(d) of s.7 of the instrument. Rather, the Tribunal reasonably considers the duties carried out by the applicant were done in order to ensure that the gardens around the hotel were maintained. For completeness, the duties described by the applicant do not correspond with any other of the kinds of work listed in the instrument.

11. Based on the above findings, the Tribunal is not satisfied that the applicant meets cl.417.211(5)(a) in respect of the 49 days of work carried out for Mills Hotel.

    Dee Bar Enterprises Pty Ltd

12. The applicant claimed in her application form to have completed 41 days of work for Dee Bar Enterprises Pty Ltd (Dee Bar) from 15 March 2020 to 24 April 2020. Under the hearing of “Work conditions” in her application form, she gave “Agriculture, forestry and fishing” as her industry type and “Stable hand, feeding and care of young horses” as the description of her duties. Six payslips from March 2020 and April 2020 show the applicant receiving salary from Dee Bar. The rate of pay was listed as $18.00-per-hour.

13. In a letter dated 11 September 2021, the applicant relevantly stated as follows:

    My work at Dee Bar has been rejected based on being paid $18 instead of $19.49 an hour. This was a full-time job where I was paid weekly and at the time, I called immigration to check, and they said so long as it is agricultural and in the right post code that pay will be “enough”. I questioned what would not be “enough” as it is very difficult to get clear information, and I didn’t get a confident answer but was assured my days there will count.

14. In the recent response letter dated 26 December 2022, the applicant wrote in similar terms about her claimed conversation with the Department.

15. The Tribunal has considered the information in front of it. It finds that the national minimum wage was $19.49-per-hour according to the National Minimum Wage Order in place at that time.[1] This is the rate for a “farm and livestock hand level 1” who is aged 20 or above under the Pastoral Award in place at that time.[2] The Tribunal is unaware of any other award that would apply to the applicant.

    [1] Fair Work Ombudsman, Pastoral Award 2010, cl.28.1.

The Tribunal notes that the applicant claimed in her application form to have been living on the property in private accommodation. It also notes that the Pastoral Award provides for a “with keep” rate (which at the time was the minimum wage less $129.21-per-week).[3] “Keep” is defined by the Pastoral Award as meaning:

good and sufficient living accommodation and good and sufficient rations of sufficient quantity; sound, well-cooked and properly served by the cook or the cook’s offsider; but it will not include accommodation under a roof or cooking when circumstances render such accommodation or cooking impracticable.[4]

[3] Ibid, cl.28.3.

[4] Ibid, cl.3.1.

While $18-per-hour is more than the “with keep” rate (which works out at $16.09-per-hour based on a 38-hour week), there is no documentary evidence to substantiate the applicant’s claim of living on the property, much less that she received rations or that she had “keep” deducted from her weekly wage (it does not appear as a line item on her payslips) or had the “with keep” rate was incorporated into her weekly wage. In other words, the Tribunal is not satisfied based on the information in front of it that the applicant was employed as an employee “with keep” during her time with Dee Bar. In the absence of information demonstrating that the applicant was remunerated in accordance with a “with keep” rate, she was entitled to be paid at or above the minimum wage of $19.49.

As the applicant was paid $18-per-hour, which is below the minimum wage of $19.49, the Tribunal finds that she had not been remunerated for work carried out for Dee Bar in accordance with relevant Australian legislation and awards. Although it has a certain amount of sympathy for her situation given that she has claimed to have carried out some due diligence, it finds that the terms of the legislation are clear on this point.

Other claimed work

Although the applicant has provided information about work subsequently carried out, this work occurred after she lodged the present visa application and the Tribunal is unable to consider it.

CONCLUSION

Based on the information in front of it and the findings made above, the Tribunal is not satisfied that the applicant has carried out at least three months of specified work. Although the work carried out for Dee Bar was specified work, the work carried out for Mills Hotel was not. Therefore, the applicant is only entitled to count the 41 days she carried out specified work for Dee Bar towards her overall period of work. Unfortunately, this falls short of the three-month period (or 88 days) of work that she is obliged to carry out.

The applicant therefore does not meet cl.417.211(5)(b).

Furthermore, and again based on the finding made above, the Tribunal finds that the applicant has not been remunerated for the work carried out for Dee Bar in accordance with relevant Australian legislation and awards.

The applicant therefore does not meet cl.417.211(5)(c) in respect of the 41 days of work carried out for Dee Bar.

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

DECISION

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

David Crawshay

Member