Ljesnjanin (Migration)

[2023] AATA 2150

Ljesnjanin (Migration) [2023] AATA 2150 (26 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Armin Ljesnjanin

REPRESENTATIVE:  Mr Fabio Nocilla (MARN: 1801443)

CASE NUMBER:  2213338

HOME AFFAIRS REFERENCE(S):          BCC2020/2641098

MEMBER:David Crawshay

DATE:26 June 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 26 June 2023 at 3:30pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – number of days worked – postcode of main business location – 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 August 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 14 November 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(6), which requires an applicant for a third Working Holiday visa to have carried out six months of “specified Subclass 417 work” while being the holder of a second Working Holiday visa or of an associated bridging visa and on or after 1 July 2019 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(6) because the applicant had not carried out a six-month period of specified work in a regional area of Australia.

4. The applicant appeared before the Tribunal on 26 June 2023 to give evidence and present arguments. The applicant was represented in relation to the review. The representative did not attend the hearing.

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 six months of specified Subclass 417 work in regional Australia.

   Has the applicant carried out specified Subclass 417 work?

7. Clause 417.211(6) requires that, at the time of the visa application, the applicant had carried out specified Subclass 417 work for a total period of at least 6 months. All of that work must have been carried out on or after 1 July 2019 and while the applicant held the second 417 visa or a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa). The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. “Specified Subclass 417 work” is defined in r.1.03 as work that was carried out in one or more specified areas of Australia and of one or more kinds specified by a legislative instrument made under r.1.15FAA. Any work carried out before 14 November 2020 that was “specified work in regional Australia” is taken to be “specified Subclass 417 work” and the instruments specifying a place for the purposes of “regional Australia” and kinds of work for “specified work” that were in force immediately before 14 November 2020 continue to be in force as if they were made under r.1.15FAA (see cll.9201(2)–(3) of Schedule 13 to the Regulations). The applicable instrument is LIN 20/182.

8. In coming to her finding that the applicant had not carried out six months of specified Subclass 417 work, the delegate found that the applicant had carried out 163 days of specified work, which was less than six months. In coming to this finding, the delegate found that the applicant’s work for Austonia Trades Pty Ltd was unable to be counted in the assessment of whether she completed six months’ specified work because no reference was made to her role or duties. The delegate also found that while screenshots were provided showing bank transactions with a number of entities, there was no reference to the owner or account number of that account.

9. Since the delegate’s decision, the applicant has submitted a number of documents, including:

   ·Submissions letter dated 10 February 2022 from the applicant’s representative;

   ·Statements from the applicant’s bank account for the period from 1 July 2019 to 31 December 2020;

   ·Payslips from the Trustee for the JC Ryan Family Trust for the periods from 12 to 18 December 2019 and from 20 February to 18 March 2020;

   ·Payslips from the Trustee for Artemis Agriculture Trust for the period from 22 April 2020 to 7 July 2020;

   ·Payslip for Adams Professional Services Pty Ltd for the period from 24 November to 7 December 2019;

   ·Payslips for Austonia Trades Pty Ltd for the period from 28 October to 24 November 2020;

   ·Income statement from Austonia Trades Pty Ltd for FY2020/21;

   ·Income statement from the Trustee for the JC Ryan Family Trust for FY2019/20;

   ·Income statements from the Trustee for Artemis Agriculture Trust for FY2019/20 and FY2020/21;

   ·Income statement from AL Dimasi and CR Dimasi for FY2019/20;

   ·Income statement from Adams Professional Services Pty Ltd for FY2019/20;

   ·Letter from Bothkamp Australia Farm (Artemis Agriculture Pty Ltd) dated 9 February 2023;

   ·ABN Lookup details for Austonia Trades Pty Ltd;

   ·ABN Lookup details for Adams Professional Services Pty Ltd;

   ·“Letter of Employment” dated 14 February 2023 from Austonia Trades Pty Ltd;

10. The Tribunal has considered this information along with information already contained in the Department file. This includes payslips from CR & AL Dimasi for the period from 4 to 17 January 2020 and from 31 January to 26 February 2020.

11. The Tribunal firstly finds that the subject period began on 14 November 2019, when the applicant’s Bridging A visa associated with his second Subclass 417 visa came into effect, and ended on 14 November 2020, when his second Subclass 417 visa ceased.

12. Based on the contents of these documents, the Tribunal finds as follows. It finds that the applicant carried out 77 days of specified Subclass 417 work for the Trustee for Artemis Agriculture Trust during the subject period from 14 November 2019 to 14 November 2020. It finds that he carried out 42 days of specified Subclass 417 work for CR & AL Dimasi over this period.

13. In relation to the applicant’s work with the Trustee for the JC Ryan Family Trust, the Tribunal finds that he carried out 28 days of specified Subclass 417 work over the subject period. In coming to a finding that he had carried out 28 days of specified Subclass 417 work and not 35, it has discounted work carried out during the week 20 to 26 February 2020 as he was carrying out work for CR & AL Dimasi during this period.

14. In relation to the applicant’s work for Adams Professional Services Pty Ltd, the applicant told the Tribunal that he worked every day but it was raining. In spite of this claim, the Tribunal finds based on the clear evidence in the fortnightly payslip that he only carried out eight hours (or just over one day) of work during that period. It is not satisfied that he carried out 14 days of work but finds that the maximum number of days that should be counted towards the overall total is seven.

15. In relation to the applicant’s work for Austonia Trades Pty Ltd, the Tribunal finds that he carried out seven days of specified Subclass 417 work over the subject period:

    ·In terms of the pay period from 28 October to 10 November 2020, in which payslips show he carried out 20 hours, the Tribunal notes that the applicant’s bank account statement for this period shows the vast majority of transactions taking place in the Greater Perth area. Moreover, the description on his payslip for the hours worked during this period is “Hourly Perth Project”. Finally, the ABN Lookup document submitted by the applicant shows the main business location for Austonia Trades Pty Ltd as being the 6021 postcode area, which is not captured by the definition of “regional Australia”. The Tribunal gives this evidence more weight than the claims made in the letter from the employer from February 2023 that the applicant worked in the Ravensthorpe Mine site. It finds that the applicant carried out this work in an area that is not a part of “regional Australia” under the Instrument. It finds that he did not carry out any days of specified Subclass 417 work during this period despite having submitted a fortnightly payslip.

    ·In terms of the pay period from 11 to 24 November 2020, in which payslips show he carried out 138.5 hours at the Ravensthorpe Mine site, the Tribunal counts seven days towards its overall consideration and not 14 days. In coming to this finding, it finds that the applicant’s second Subclass 417 visa ceased on 14 November 2020, or four days into this pay period and that any work carried out after this date should not be counted.

16. Although the applicant has provided evidence that shows other payments being made into his bank account (or into an account that purports to be his), from different entities including entities mentioned above, the Tribunal is not satisfied based on the information in front of it that these payments were made for specified Subclass 417 work carried out during the subject period. No mention was made of these payments in the submissions letter of February 2022 and the applicant did not speak to them at hearing.

17. Having considered the information in front of it, and based on the findings made above, the Tribunal finds that the applicant carried out at most 161 days of specified work during the period from 14 November 2019 to 14 November 2020. It finds that this is less than the minimum number of days in six months, which is 178.[1]

    [1] Based on one of those months being February (in a non-leap year) and the other five being months containing 30 days

18. Therefore, the applicant has not carried out a period or periods of at least six months of specified Subclass 417 work. She does not satisfy cl.417.211(6)(b) which is a necessary criterion for the grant of the visa.

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

    DECISION

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

    David Crawshay

    
    

    Member