Chen (Migration)

The Administrative Appeals Tribunal considered an application for a Working Holiday (Temporary) (Class TZ) visa, subclass 417, made by the applicant, Mr Chen. The dispute concerned whether Mr Chen had met the criteria for the visa, specifically regarding the nature of his work in regional Australia and his remuneration for that work. The Tribunal was required to determine if Mr Chen had carried out at least three months of full-time specified work in regional Australia as the holder of a previous subclass 417 visa and, crucially, if he had been remunerated in accordance with relevant Australian legislation and awards for that work.

The Tribunal's reasoning focused on the remuneration requirement, which stipulated that for piecework rates to apply, a written agreement between the employer and employee, signed by both parties, was necessary. The applicant claimed to have been paid a piecework rate by an entity called KAID for picking strawberries between May and July 2016. He stated he had a written work/employment contract and a piece rate agreement. However, the Tribunal found that no such piecework agreements existed prior to the commencement of work. The evidence indicated that if no piece rate agreement was in place, the applicant was entitled to an hourly wage, which varied depending on whether he was a casual or full-time employee and the period of employment. The minimum hourly rates stipulated by the Horticulture Award 2010 were $17.29 (full-time) or $21.61 (casual) before July 2016, and $17.70 (full-time) or $22.13 (casual) from July 2016 onwards. The Tribunal concluded that the applicant had not been paid in accordance with these legislative and award requirements, raising credibility issues regarding his claims.

Consequently, the Tribunal affirmed the decision not to grant Mr Chen a subclass 417 visa.