Moezivafa (Migration)

[2018] AATA 4684

Moezivafa (Migration) [2018] AATA 4684 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hamidreza Moezivafa

CASE NUMBER:  1618617

DIBP REFERENCE(S):  BCC2016/2019788

MEMBER:Kira Raif

DATE:11 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 11 October 2018 at 4:34pm

CATCHWORDS
MIGRATION – Skilled (Residence) (Class UB) – Subclass 887 (Skilled-Regional) – work in a regional area – full time work – undocumented work hours and pay – decision under review remitted for reconsideration

LEGISLATION
Migration Regulations 1994 (Cth), Schedule 2 cls 887.212, 887.213

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 17 October 2016 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Iran born in September 1978. He applied for the visa on 11 June 2016. The delegate refused to grant the visa because the applicant did not satisfy cl.887.213 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant had worked in a regional area for at least one year. The applicants seek review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. Visa Class VB contains Subclass 887, the criteria for which are set out in Part 887 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clause 887.213 requires that, at the time of visa application, the applicant had worked full‑time in a specified regional area for a total of least 1 year as the holder of 1 or more of specified skilled or bridging visas. ‘Specified regional area’ is defined by cl.887.111 and varies depending on which visa an applicant has relied on in applying for the Subclass 887 visa. It refers to a part of Australia that at the time that visa was first granted, was specified by the Minister in the relevant written instrument.

   Work in a regional area

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled – Regional Sponsored visa on 23 October 2012 and he entered Australia on 24 May 2014. The Tribunal finds that the applicant was a holder of one or more of the visas mentioned in cl. 887.212 from October 2012. His application for the Class VB visa was made on 11 June 2016. The Tribunal must be satisfied the applicant had worked full-time in a specified regional area between October 2012 (or May 2014 when he entered Australia) and June 2016.

7. The applicant stated in his application that he was working for Titanium Engineering Pty Ltd in WA (postcode 6280) and the applicant confirmed in oral evidence to the Tribunal that he had no other jobs in that period. In support of his employment claim, the applicant provided a copy of his employment contract and reference, taxation records and payslips and his bank records. The delegate accepted that the applicant worked for Titanium Engineering for at least 1 year in the specified area, however the delegate was not satisfied the employment was on a full-time basis. The delegate noted that only one of the applicant’s payslips for the period from 14 to 27 September 2015 referred to full-time work while the other evidence did not demonstrate full-time work.

8. In his written submissions to the Tribunal the applicant states that he worked long hours to show his loyalty to the employer and his hours exceeded 35 hours per week. The applicant provided what appeared to be security logs for the premises but the Tribunal notes that these do not identify the applicant and there is no evidence confirming that the user identified in these logs is in fact the applicant. The applicant presented a letter from his employer stating that the applicant worked on a full-time basis, often from 9 am to 6.30 pm but as a new company, they were not able to claim full hours and claimed only minimum hours for the job. The applicant also provided a statement outlining the nature of his employment and confirming that through his hard work and long hours, he was able to improve the company’s position on the market. The applicant provided a character reference in support of his application.

9. In oral evidence to the Tribunal the applicant explained that when he came to Australia, the employment market was very bad and it was hard to find a job. The applicant states that he worked very long hours, sometimes more than 12 hours a day, but he was not paid for all his work. He was working for a new company which could not pay for his hours. The applicant states that he is well regarded in his job and works long hours

10. The applicant states that he signed an employment contract when he started the job and the contract states that he is employed on a casual basis. The applicant said that he was paid on an hourly basis, about $33 an hour. The Tribunal notes that the applicant’s tax returns show income of under $18,000 in 2014-2016, suggesting he was working less than 20 hours a week. The applicant said that the company did not want to pay him and there was nothing he could do about it. The applicant said that he started around 8.30 or 9 am and worked until late and he used the time to read the manuals and familiarise himself with the Australian standards and he did work longer hours. The applicant said that he worked hard to help the company grow.

11. The Tribunal discussed with the applicant the security logs which he presented to the Tribunal. The applicant claims that these show that he worked long hours and he was the only person in the office who stayed late. However, the applicant also told the Tribunal that every employee used the same code to enter the premises, so there is no way to distinguish whether the entry was made by the applicant or by any other employee. Even though the applicant claims he was the only person in the office in the evenings, there is no way of knowing when he started, as the security logs show several entries each day. In the Tribunal’s view, the security logs do not establish the applicant’s employment on a full-time basis.

12. The Tribunal has considered evidence of the applicant’s employment. The formal records of employment establish that the applicant was not employed on a full-time basis. His employment contract refers to casual employment, the payslips show hours of employment that are less than full-time and the income as stated in the taxation records is not commensurate with full-time employment. The Tribunal has considered the applicant’s own evidence, which is supported by a statement from his employer, that he had worked longer hours for which he was not paid. The Tribunal considers it is entirely plausible, and even possible, that he did. However, that is not sufficient to establish full-time employment for a year. There is insufficient evidence to satisfy the Tribunal that the applicant did work longer hours on a regular basis to the extent that his employment amount to full-time employment and that such employment amounted to one year. He may have worked longer hours every day, frequently or only occasionally. There is simply not sufficient evidence before the Tribunal to establish that the hours of paid employment were supplemented by the hours of unpaid employment to amount to at least 1 year of full-time work. The Tribunal reaches this conclusion while acknowledging the evidence of the applicant and the employer.

13. On the evidence before it, the Tribunal is not satisfied that the applicant had worked full-time in a specified regional area for a total of at least 1 year as a holder of one or more of the visas mentioned in cl. 887.212. The Tribunal is not satisfied the applicant meets cl. 887.213.

14. The applicant referred to his skills and the benefits he brought to Australia and to various companies he worked for. He had obtained a number of character references. The Tribunal acknowledges and accepts that evidence but it does not assist the applicant in addressing the above criterion. The applicant told the Tribunal that he has another application for the Skilled visa with the Department and the applicant may be more successful in that application but that is not a matter for the present Tribunal.

    Conclusion

15. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 887 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Kira Raif
    Senior Member