Chiang (Migration)

[2021] AATA 2271

Chiang (Migration) [2021] AATA 2271 (10 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu-Hsiang Chiang

CASE NUMBER:  2011450

HOME AFFAIRS REFERENCE(S):          BCC2020/547399

MEMBER:Melissa McAdam

DATE:10 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

·cl 417.211(5) of Schedule 2 to the Regulations.

Statement made on 10 June 2021 at 2:31pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – evidence of employment records – remuneration in accordance with Australian legislation and awards – specified work – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 417.111, 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 2 July 2020 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 March 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.

   Visa application

3. The following is a summary of the information the applicant provided in his visa application:

   a.The applicant is applying for his second Working Holiday visa.  He intends to work in the Accommodation and Food Services Industry.  He has carried out at least three months of specified work in a regional area of Australia.

   b.He worked for Ceres Harvest Pty Ltd, a labour hire company, in Stanthorpe, Queensland, at postcode 4380 from 14 August 2019 to 5 November 2019 in the agriculture, forestry and fishing industry.  His duties were picking broccolini and celery.  He worked there for a total of 550 hours over 79 days and was paid under a piece rate agreement.

   c.He also worked for Jin Kun Agricultural Management Pty Ltd, in Munna Creek, Queensland at postcode 4570, from 1 December 2019 to 31 January 2020, in plant and animal cultivation. His duties were planting and picking ginger and building the irrigation system. He worked there for a total of 116 hours over 20 days and was paid an hourly rate of $24.36.

   d.He submitted copies of the following documents:

   -     Several payslips to the applicant from Ceres Harvest Pty Ltd giving his job title as ‘Broccolini Picker’ showing an hourly wage rate of $24.36 plus and additional piece rate of $1 per quantity.  Tax is taken out of the pay. 

   -     A note of taxable earnings for the applicant showing a pay rate of $24.37 and year to date gross payment of $2,826.92, with tax and superannuation contributions deducted.

   -     His Bank account statement showing a balance of $4,309.86 on 13 February 2020.

   -     Photographs of himself at the ginger farm, installing irrigation equipment.

   -     Photographs of himself with other workers picking celery.

   -     His Taiwanese passport.

   Department’s Request for further Information

4. On 7 April 2020 the Department delegate wrote to the applicant requesting further information regarding his work, education, banking and travel history.

5. The applicant did not provide a response to the request.

   Delegate’s Decision

6. The delegate found that he was unable to be satisfied that the applicant had completed a three month period of specified work in a regional area in Australia. He was therefore unable to be satisfied that the applicant met Regulation 417.211(5) in its entirety.

   Information to the Tribunal

7. On 10 July 2020 the applicant wrote a letter to the Tribunal stating the following:

   … I was grant Australian working holiday visa on 27/06/2019,  after working in the specified industry, I was applying for the second year WHV visa on 24/02/2020, which was rejected on 02/07/2020, following the instruction on the migration notification of refusal letter, within the 21 date’s timeframe, I am apply for AAT review, basic on below grounds:

   Firstly, on the second year visa application, I was required for proving additional documents on 07/Apr/2020, which included bank statement indicated my salary during my employment, and more employment evidence apart from my payslips I had lodged with my visa application. I was confused by both requirements. I had attached my bank statement with my application already by the time of lodgement, I really don’t understand what else I can provide.

   Also, from my best knowledge, the payslip is the strong evidence for an employment, migration office did ask for additional documents like Superannuation Statement, Payment Summary, Tax Statement to support my application. As a casual employee, I had not been provided those documents at all by either of my employers.

   I am a foreign worker in Australia, also not very good at English, I am not very clear Australia visa system, that is why I don’t know, even I can’t provide the required documents, I still need to reply to the migration office within the 28 days period, which I admitted that was my mistake.
   I had tried my best to organize all the required documents already, and applied for AAT review, tried to win a second chance for my visa application.

8. On 12 May 2021 the applicant submitted the following further materials to the Tribunal:

   -A June 2020 ‘Tax Ready’ screen shot showing the applicant received gross payments as a working holiday maker of $9,133.48 from employer Ceres Harvest Pty Ltd.

   -A June 2020 ‘Tax Ready’ screen shot showing the applicant received gross payments as a working holiday maker of $1,845.27 from employer Jin Kun Agricultural Management Pty Ltd.

   -A July 2020 ‘Tax Ready’ screen shot showing the applicant received gross payments as a working holiday maker of $1,224.09 from employer Jumbo Ginger Agriculture Pty Ltd.

   -A January 2020 ‘Not Tax Ready’ screen shot showing the applicant received gross payments as a working holiday maker of $2,826.92 from employer Hsu’s Family Pty Ltd.

   -A copy of his Yamanto Tenancy Agreement.

   -The applicant’s Commonwealth Bank Account statements highlighting transactions related to his places of residence.

   -Payslips from his employers Ceres Harvest Pty Ltd, Jin Kun Agricultural Management Pty Ltd, and Hsu’s Family Pty Ltd.

   -More photographs from his employment and residences at the time.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

10. The issue in this case is whether the applicant has carried out three month’s specified work in a regional area.

    Has the applicant carried out the requisite specified work in regional Australia?

11. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘Specified work’ and ‘regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl 417.111. The applicable instrument is IMMI 17/018. 

    Three months work in a regional area

12. The Tribunal accepts the applicant’s evidence that he worked for a total of 99 days and that this is considered equivalent to at least three months full time work.  The Tribunal accepts that the work was performed in regional Australia as described by Instrument IMMI 17/018, which includes postcodes 4380 and 4570 in the Queensland ranges that qualify as regional Australia.

    Remuneration

13. The applicant’s payslips and tax records show that he was paid at an hourly rate of $24.36 for his work at Jin Kun Agricultural Management Pty Ltd. 

14. For his other work he appears to have been paid a combination of a piece rate and an hourly rate. His gross payments for the period totalled $12,202.84.  For 550 hours this equates to an average hourly rate of around $22.

15. The Fair Work Ombudsman’s Pay Guide for the applicable Horticulture Award (MA000028) shows an hourly rate of $19.49 for a Level 1 employee.  Given the applicant was receiving an equivalent hourly rate above this amount at his places of employment the Tribunal is satisfied he was remunerated in accordance with the relevant Australian legislation and award.

    Specified Work

16. Instrument IMMI 17/018 includes descriptions of what is considered ‘specified work’ for the purposes of a subclass 417 working holiday visa.  Section 7 of instrument IMMI 17/018 lists all the kinds of work in different work categories which amount to specified work.  The Work Category ‘Plant and animal cultivation work (Agriculture)’, includes the following types of work as ‘specified work’:

    (a) the harvesting and/or packing of fruit and vegetable crops;
    (b) pruning or trimming vines and trees;
    (c) general maintenance crop work;
    (d) cultivating or propagating plants, fungi or their products or parts;
    (e) immediate processing of plant products;
    (f) maintaining animals for the purposes of selling them or their bodily produce, including natural increase;
    (g) immediate processing of animal products including shearing, butchery, packing and tanning; (h) manufacturing dairy produce from raw material.

17. The Tribunal is satisfied that the work performed by the applicant, namely picking broccolini, celery and ginger and installing irrigation, falls within harvesting of vegetable crops and general maintenance crop work.

18. The Tribunal is therefore satisfied it amounts to specified work under the Instrument.

    Conclusions

19. In view of the above findings the applicant satisfies cl 417.211(5).

20. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 417 visa.

    DECISION

21. The Tribunal remits the application for a Working Holiday (Temporary) (Class TZ) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 417 (Working Holiday) visa:

    ·cl 417.211(5) of Schedule 2 to the Regulations.

    Melissa McAdam

    
    

    Member