Chen (Migration)

[2019] AATA 1903

Chen (Migration) [2019] AATA 1903 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu-chen Chen

CASE NUMBER:  1709723

DIBP REFERENCE(S):  BCC2017/722789

MEMBER:Tigiilagi Eteuati

DATE:1 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 01 April 2019 at 9:01pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 – fruit picker – regional work – remuneration in accordance with relevant Australian legislation and awards – paid piecework rate – piecework agreements fabricated – no piecework agreements prior to starting work – paid hourly rate – applicant not paid in accordance with Horticultural Award 2010 – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211, 417.511

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 20 April 2017 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 22 February 2017. 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 (the Regulations). Relevantly to this case, they include cl.417.211(5)(c).

3. The delegate refused the applicant’s application as he was not satisfied that the applicant met the criterion in clause 417.211(5)(c) that the applicant had been remunerated in accordance with relevant Australian legislation and awards. This was because the payslips provided by his employers indicated that the applicant had been paid a piecework rate and the Applicant had not provided the delegate with a piecework agreement, which is necessary in order to legally work on a piecework basis.

4. The applicant appeared before the Tribunal on 2 February 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant been remunerated for his work in accordance with relevant Australian legislation and awards?

6. Clause 417.211 requires, among other things, that at the time of the visa application, the applicant had carried out specified work in regional Australia (whether on a full-time, part-time or casual basis) for a total period or periods equivalent to at least 3 months’ full-time work, as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111.

7. On 22 February 2017, while he held his previous subclass 417 visa, the applicant applied for a further subclass 417 Working Holiday visa. As he had was the holder of a subclass 417 visa he was required to meet the criteria in clause 417.211(5) of Schedule 2 to the Migration Regulations 1994.

8. Under subclause 417.211(5) (a) and (b) the applicant was required to have carried out at least three months full-time specified work in regional Australia as the holder of the previous subclass 417 visa.

9. Under subclass 417.211(5)(c) the applicant was required to have been remunerated for the work in accordance with relevant Australian legislation and awards.

10. The relevant award for the applicant’s work was the Horticulture Award 2010 which, during the period in which the applicant was employed, provided that the minimum hourly pay wage for a full time employee was $17.29. If the applicant had been subject to a piecework agreement the hourly pay rate for the purpose of calculating piecework rates was $19.88 or at least $24.20 an hour if he was a casual worker.  However, for piecework rates to apply there must have been a written agreement between the employer and the applicant, signed by the employer and the employee. If there was no piece rate agreement, prior to 1 July 2016, the applicant was required to be paid at the hourly rate of $17.29, or $21.61 if he was a casual worker. From 1 July 2016 the applicant was required to be paid at the hourly rate of $17.70, or $22.13 if he was a casual worker.

11. The applicant claimed to have worked for an entity called KAID, from 2 May 2016 to

    
    

    7 July 2016. He had claimed to have worked for KAID for a total of 36 days picking strawberries. In his WHM specified work questionnaire, completed in relation to KAID and provided to the Tribunal at the hearing, the applicant indicated that he worked for KAID for 3 to 7 days a week on a casual basis during each week of his employment and had worked “5-10” hours each day and “20-60” hours a week. He had indicated that his employer had provided him with a written work/employment contract. He indicated that he was not paid hourly rate but was paid depending on the volume that he picked. He indicated that his employer provided him with a piece rate agreement.

12. The applicant also claimed to have worked for an entity called Berry Fast from 8 July 2016 to 20 October 2016. He claimed to have worked for Berry Fast for a total of 69 days.  In his WHM specified work questionnaire completed in relation to Berry Fast and provided to the Tribunal at the hearing, the applicant indicated that he worked for Berry Fast for 4 to 7 days a week on a full time basis during each week of his employment and had worked “5-10” hours each day and “20-60” hours a week. He had indicated that his employer had provided him with a written work/employment contract. He indicated that he was not paid hourly rate but was paid depending on the volume that he picked. He indicated that his employer provide him with a piece rate agreement.

13. It should be noted that the applicant did not provide either WHM specified work questionnaire for either KAID or Berry Fast to the Department and only provided these forms to the Tribunal at the hearing. In addition, the applicant did not provide employment contracts or piecework agreements to the Department and only provided these documents to the Tribunal at the hearing.

14. The applicant provided payslips from KAID and Berry Fast for the period in which he claimed employment.

15. The applicant’s purported piecework agreement for KAID was dated 8 July 2016 whereas the applicant had indicated that he was employed by KAID from 2 May 2016 to 7 July 2016. As the purported piecework agreement was dated after the applicant’s employment with KAID the Tribunal finds that he did not have a valid piecework agreement in place when he undertook employment with KAID.

16. Similarly, the applicant’s purported piecework agreement for Berry Fast was dated

    
    

    28 April 2016 whereas the applicant had indicated that he was employed by Berry fast from 8 July 2016 to 20 October 2016. As the purported piecework agreement was dated well before the applicant’s employment with Berry fast the Tribunal finds that he did not have a valid piecework agreement in place when he undertook employment with Berry fast. That is because it appears that both purported piecework agreements were completed after the delegate’s decision refusing the applicant a visa.

17. The Tribunal finds that the applicant, possibly with the assistance of his former employers, have fabricated piecework agreements after the delegate’s decision to refuse the applicant a visa to give the misleading impression that the applicant had piece rate agreements with his employers prior to beginning work.

18. This explains why the applicant did not provide the agreements to the Department when he applied for the further visa. It appears that the applicant has erroneously placed the purported date for the agreement with KAID on the agreement with Berry Fast, and vice versa.

19. When the Tribunal put this to the applicant for comment, he could not provide any reasonable response.

20. As the applicant did not have piece rate agreements with his employers prior to commencing work and because his employers have purportedly paid him at a piece rate, the Tribunal finds that the applicant was not remunerated in accordance with the Horticultural

    
    

    Award 2010. The Tribunal notes that, seeing that the applicant has willingly provided the Tribunal with fraudulent piece rate agreements, it is very difficult for the Tribunal to place any weight on any of the evidence provided by the applicant to the Tribunal or the Department including documents, such as payslips, purportedly provided by his employers.

21. Thus, the Tribunal finds that the applicant was not being paid in accordance with the Horticulture Award 2010 and was not being remunerated in accordance with Australian legislation and awards.

22. The Tribunal finds that the applicant did not meet the criteria in clause 417.211(5)(c).

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

24. The Tribunal notes that, even if the applicant had been successful on this application for review, he would not be entitled to a subclass 417 visa. That is because, as he applied for the second subclass 417 visa when he held a subclass 417 visa, any further subclass 417 visa granted would have expired 12 months after the first subclass 417 visa expired on

    
    

    17 April 2017, that is on 17 April 2018: see paragraph 417.511(2) of Schedule 2 to the Migration Regulations.

25. As the applicant has held a bridging visa while awaiting the outcome of these proceedings, he has effectively been allowed to remain in Australia for a year after the period in which he would have been allowed to remain had he been granted a second subclass 417 visa.

    DECISION

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

    Tigiilagi Eteuati

    
    

    Member