Chou (Migration)

[2020] AATA 2714

Chou (Migration) [2020] AATA 2714 (3 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shih Hsiu Chou

CASE NUMBER:  1813401

HOME AFFAIRS REFERENCE(S):          BCC2017/4254390

MEMBER:Tania Flood

DATE:3 June 2020

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 of Schedule 2 to the Regulations.

Statement made on 03 June 2020 at 4:28pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – no response to departmental request for information – picked strawberries and blueberries while holding visa – total period of 3 months – remunerated for work he performed – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 417.211(5), r 1.03

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 20 April 2018 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 14 November 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).

3. On 18 December 2017 the Department requested the applicant to provide more information in relation to his application within 28 days of the date of the request.  The delegate refused to grant the visa on the basis that the requested information was not provided, and he could not be satisfied that the applicant had carried out specified work in regional Australia as the holder of a subclass 417 Working Holiday visa.  The delegate concluded that the applicant did not meet the requirements under cl.417.211 of the Regulations.

4. In the application for the Working Holiday visa the applicant declared that he undertook work with the following employers:

   a.    Finura Pty Ltd (ABN: 54 619 943 261) from 26 June 2017 to 20 August 2017 in the 4670 regional postcode area.

   b.    Geminus Entertainment Pty Ltd (ABN: 68 615 513 838) from 7 May 2017 to 25 June 2017 in the 4670 regional postcode area.

5. In response to a request for information made on 15 April 2020 the applicant declared on 28 April 2020 to the Tribunal that he worked 40 days in total for Geminus Entertainment Pty Ltd, working 6-7 days a week, 6-8 hours per day.  He declared he worked 51 days in total for Finura Pty Ltd, working 6-7 days a week, 6-8 hours per day.  He estimated he worked on average 38 hours per week for each employer. On 20 May 2020 the applicant emailed the Tribunal requesting that the information contained in his email of 28 April 2020 be deleted as it contains some mistakes.

6. In a further submission to the Tribunal made on 20 May 2020 the applicant provided a WHM Specified Work Questionnaire Form on which he declared he worked for three employers citing three ABN numbers but listing only two employers - SSS Strawberries in the 4670 regional postcode area and Mountain Blue Farms Pty Ltd in the postcode area 2469, as a casual strawberry and blueberry picker working 4-7 days per week; 6-12 hours per day; 38-60 hours per week.

7. On the same date he provided a copy of a piecework agreement entered into with Geminus Entertainment Pty Ltd (property name SSS Strawberries) noting a starting date of 11 May 2017.  He also provided a copy of a piecework agreement entered into with Mountain Blue Farms Pty Ltd which is dated 17 September 2017.

8. Also in submissions to the Tribunal the applicant provided copies of payslips covering his employment with Finura Pty Ltd, Geminus Entertainment Pty Ltd and Mountain Blue Farms Pty Ltd (Agri Labour Australia); copies of employment contracts entered into with Geminus Entertainment Pty Ltd and Mountain Blue Farms; completed Form 1263 covering employment with Geminus Entertainment Pty Ltd, Finura Pty Ltd and Blue Mountain Farms Pty Ltd (Agri Labour Australia), copies of tax records, bank statements and a written explanation for the failure to provide the relevant documents to the Department.

9. The applicant appeared before the Tribunal on 28 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The applicant’s oral testimony to the Tribunal about his employment under his first working holiday visa was largely consistent with his documentary evidence.  In addition, he confirmed the following to the Tribunal:

11. As to his various employers he said that Finura Pty Ltd and Geminus Entertainment Pty Ltd, while holding different ABN’s, are in fact part of the same employer group.  He said that when his employment was shifted to Finura Pty Ltd he was informed that his working conditions would remain the same.  He also said that he worked at the same location under the same supervisors.

12. As to the work he performed he said that his main task was fruit picking but that there were times when there was not much fruit to pick and/or the weather did not permit picking.  He described himself as being below average in terms of his speed of picking.

13. As to his payslips he said the amounts paid varied due to his speed of picking.   He said that when he first started he was new to the task and had no previous work experience at all.  He said his abilities improved over time.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the applicant had carried out specified work in regional Australia for a period of at least 3 months as the holder of a subclass 417 visa and been remunerated in accordance with relevant Australian legislation and awards.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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

16. 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. The applicable instrument is Migration (LIN20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020.

17. Relevant to this case “regional Australia” includes Queensland and New South Wales postcodes 4670 and 2469 and ‘specified work’ includes:

    -    Plant and animal cultivation

    o   Harvesting and/or packing of fruit and vegetable crops;

    o   Pruning and trimming vines and trees;

    o   General maintenance crop work;

    o   Cultivating or propagating plants, fungi or their products or parts;

    o   Immediate processing of plant products;

    o   Maintaining animals for the purposes of selling them or their bodily produce, including natural increase;

    o   Immediate processing of animal products including shearing, butchery, packing and tanning, and not including secondary processing;

    o   Manufacturing dairy produce from raw material.

18. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.  The expression ‘3 months’ is not defined in the Regulations; however, Department guidelines (PAM 3) suggests that 3 months is taken to   mean 88 days which is the shortest possible combination of months in a calendar year.  Further, these guidelines specify that the work should be the equivalent of full-time work for that employer, that region and that industry.

19. From 1 December 2015 onwards, all specified work performed is required to have been paid in accordance with Australian workplace law.  Where an employee gets paid by the piece the Fair Work Ombudsman’s website provides guidance on piece rate and commission payments.  Relevantly, it states:

    An employee can be paid piece rates when:

    ·An award or registered agreement allows for piece rate payments

    ·The employee isn’t covered by an award or registered agreement and they get a pay rate based on how much work they do.

    There has to be a written and signed piecework agreement setting out the pay rate per piece and how it is measured.  An employer has to keep the agreement as part of their records and give a copy to the employee.

    If there is no signed piecework agreement, the employee is not considered a pieceworker and must get the minimum hourly or weekly rate in the award for the type of work they do.

20. Based on the documentary evidence before it the Tribunal is satisfied that the applicant performed work picking strawberries and blueberries in two locations in Queensland and New South Wales in 2017.  The Tribunal is satisfied that he has completed work which meets the definition of ‘specified work’ in locations which are specified as ‘regional Australia’ whilst holding a working holiday visa.

21. In considering whether the applicant has completed a total period of 3 months of such work the Tribunal understands that the duration of a working day in the agricultural industry generally may vary from day to day and will be dictated by a range of factors including the availability of work and weather conditions.  As such the Tribunal accepts that a typical working day in this industry may not always be 7 to 8 hours as in other industries.  The Tribunal further accepts that the pattern of work may also be dependent on a range of factors including environmental factors.  The Tribunal is satisfied therefore that the requisite period should be calculated flexibly with this in mind.

22. The information before the Tribunal indicates that the applicant worked on average between 6-12 hours per day; 4-7 days per week.  Based on the available evidence the Tribunal is satisfied that he worked a total of 40 days for Geminus Entertainment Pty Ltd; 51 days for Finura Pty Ltd and 11 days for Mountain Blue Farms Pty Ltd (Agri Labour Australia).  The Tribunal accepts that the applicant worked for at least the equivalent of 3 months in full-time employment.

23. The Tribunal is satisfied that the applicant meets cl.417.211(5)(a) and (b) of the Regulations.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards?

24. According to the Department’s policy guidelines, “the remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history.  It further states that “in the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted”.

25. The relevant award for the applicant’s work is the Horticulture Award 2010 which lists the minimum hourly rate of payment.  The award also provides that the pieceworker rate fixed by agreement between the employer and the employee must enable an average competent employee to earn at least 15% more than the minimum hourly rate under the relevant classification.  At the time of the applicant’s employment the base minimum hourly rate of payment was $18.29 and as he was subject to piecework agreements he ought to have had the ability to earn approximately $21.00 per hour.

26. The Tribunal has carefully examined the payslips, employment agreements, piecework agreements and the applicant’s bank account records as well as the applicant’s claims in respect of his employment.  While it is evident that the applicant’s earnings fluctuated from week to week the Tribunal notes and finds plausible his explanation that he was inexperienced, and at least in the beginning, his speed of picking was below average.  The Tribunal finds that his payslips reflect this explanation as his average earnings with Geminus Entertainment Pty Ltd were generally at the lower end of what might be expected than his subsequent earnings with Finura Pty Ltd and Mountain Blue Farms Pty Ltd where he demonstrated the ability to earn, with greater consistency, amounts more closely aligned with the rates of pay which are required to be paid to employees under the Horticultural Award 2020. 

27. Having reviewed all the evidence the Tribunal is not concerned that the applicant in this case has been underpaid or not paid at all for the work he performed.   The Tribunal considers that overall, the evidence, including the applicant’s competency at picking, supports that he was remunerated appropriately    Having regard to these factors and taking into account the Department’s policy guidelines mentioned above, the Tribunal is satisfied that the applicant was remunerated for the work he performed in accordance with relevant Australia legislation and awards.  Therefore, the Tribunal is satisfied that the applicant meets cl.417.211(5)(c) of the Regulations.

28. In view of the above findings, the applicant satisfies cl.417.211(5) of the Regulations and therefore meets the criteria for the grant of the visa.

    DECISION

29. 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 of Schedule 2 to the Regulations.

    Tania Flood

    
    

    Member