Sharp (Migration)

[2018] AATA 5626

Sharp (Migration) [2018] AATA 5626 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Melissa Kate Sharp

CASE NUMBER:  1712413

DIBP REFERENCE(S):  BCC2017/1361810

MEMBER:Ian Berry

DATE:4 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

·     Cl.417.221 of Schedule 2 to the Regulations.

Statement made on 04 October 2018 at 12:10pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – evidence of employment provided – 88 day requirement – worked in excess of 88 days – regional Australia – first year 417 visa holder – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 417.112, 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 Immigration to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 12 April 2017. The delegate refused to grant the visa on 23 May 2017.

2. The delegate made the decision on the basis that Applicant did not meet regulation 417.211(5)(b) and regulation 417.211(5)(c) by not producing evidence substantiating the applicant's claim of having worked for at least 88 days.

3. Hearings were conducted on 4 May 2018 and on 4 October 2018.  The applicant did provide the Tribunal with a copy of the delegate’s decision.  On both occasions the applicant appeared in person initially and then by telephone.  She was unrepresented at both hearings.

4. The applicant gave evidence of her working in regional Australia for the reason that she wished to experience Australian lifestyle before embarking on a sightseeing venture.

5. As a 1^st year 417 visa holder, she was an experienced in Australian law, though astute enough to keep a diary and some records as to the places and employers with whom she worked.  From her records including her diaries, she was a bit to compile an Excel spreadsheet setting out relevant information corroborating she had worked in excess of 88 days.

6. Of the information and documents supplied by the applicant to the Tribunal and to the Department the following table represents the periods, employer or contractor and the folio reference in respect of the Department and Tribunal files. 

Date or period	Description	Dept Folio #	Tri. folio #
21.11.16 – 27.11.16	Lins Labour Services Pty Ltd – Payslip (weekly pay $810.17 gross)	81
14.11.16-20.11.16	Lins Labour Services Pty Ltd – Payslip (weekly pay $411.79 gross)	82
14.11.16 - 20.11.16	Lins Labour Services Pty Ltd– Payslip(Weekly pay $594.36 gross)	82
21.11.16 - 27.11.16	Lins Labour Services Pty Ltd– Payslip(Weekly net pay $693.17)****	81
28.11.16 -  4.12.16	Lins Labour Services Pty Ltd– Payslip(Weekly pay $352.46 gross)	81
12.12.16 - 18.12.16	Lins Labour Services Pty Ltd – Payslip (Weekly pay $ 287.69 gross)	80
5.12.16 – 11.12.16	Lins Labour Services Pty Ltd – Payslip (Weekly pay $ 295.07 gross )	21
19.12.16 – 25.12.16	Embrey Family Trust – payslip (weekly pay $608.85 gross)	22	79
5.12.16 – 11.12.16	Embrey Family Trust – payslip (weekly pay $309.96 gross)	79
12.12.16 – 18.12.16	Embrey Family Trust – payslip (weekly pay $636.53)	78
27.6.16 -	Simpson Farms Pty Ltd – Shed worker: payslip ($668.18)	77
4.7.16 -	Simpson Farms Pty Ltd – Shed worker: payslip ($1211.62)	77
11.7.16 -	Simpson Farms Pty Ltd – Shed worker: payslip ($1052.95)	76
25.7.16 -	Simpson Farms Pty Ltd – Shed worker: payslip ($842.71)	76
1.8.16 -	Simpson Farms Pty Ltd – Shed worker plus additional voluntary hours: payslip ($1123.10)	20	75
8.8.16 -	Simpson Farms Pty Ltd – Shed worker: payslip $328.19	75
15.8.16 -	Simpson Farms Pty Ltd – Shed worker: payslip $560.55	74
9.6.16 -  9.6.16	Wilarene (JW &SI Kingston Family Trust) payslip $507.84	73
13.6.16 – 16.6.16	Wilarene (JW &SI Kingston Family Trust): payslip $140.47	73
20.6.16 – 24.6.16	Wilarene (JW &SI Kingston Family Trust) : payslip $ 313.35	72
21.6.16 – 24 .6.16	Wilarene (JW &SI Kingston Family Trust) : payslip $172.88	72
14.12.16 – 20.12.16	Rosie Red Soil Sweet Potatoes (Akers Family Trust): payslip $43.60	71
23.5.16	All Access Labour Hire Pty Ltd: payslip $34.50
26.5.16	All Access Labour Hire Pty Ltd: payslip $27.75	25/26	70
18.5.16	All Access Labour Hire Pty Ltd: payslip $15.75	25/26	70
20.5.16	All Access Labour Hire Pty Ltd: payslip $18.00	25/26	70
16.6.16 – 22.6.16	David Higginbotham (Newlands Produce) – 16 hours – payslip $345.76	25	69

1. The applicant has provided the Tribunal, (at the request of the Tribunal) pursuant to a 359 letter request dated 21 February 2018[1], an excel spreadsheet summary.  This summary[2]calculates the hours and days worked at the various work locations:

   (a)All Access Labour Hire Pty Ltd where she was employed as a picker 32 hours (4 days);

   (b)Wilarene where Applicant was employed as a farm hand, 52.5 hours (10 days);

   (c)DJ Higginbotham where Applicant was employed as a planter, 16 hours (3 days):

   (d)Simpsons Farm Pty Ltd employed as a packer, 292.25 hours (44 days); 

   (e)Lins Labour Services Pty Ltd employed as a farm hand, 80.08 hours (16 days) and 48 hours (6 days);

   (f)Embrey Family Trust employed as a picker, 70.25 hours, (11 days); and

   (g)Akers Family Trust employed as runner, 2 hours (1 day).

   [1] T1, folio 61

   [2] T1, folio 112 Printout of Excel spreadsheet.

2. The total hours worked, the applicant calculates the days worked at 95 days.  The evidence supplied by the applicant corroborates that calculation.

3. Applicant provided the Tribunal with a reference. The referee confirms having employed Applicant as a barista where she was employed for 6 months. The applicant also provided a copy of her diary and another summary[3], which also corroborates the working days being in excess of 88 days. The Tribunal is satisfied with the authenticity of the diary[4] of the applicant.

   [3] Tribunal folio 136.

   [4] Tribunal folios 132-135

4. The Tribunal is satisfied the applicant has worked at least 88 days and has satisfied clause 417.112(a) of Schedule 2 to the Regulations.

5. The Tribunal is also satisfied, that the applicant has not been paid less than the Australian award for the hours she has completed in regional Australia.

6. In the light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 visa:

   ·cl.417. 221 of Schedule 2 to the Regulations

   Ian Berry
   Member