Chou (Migration)

The Administrative Appeals Tribunal considered an application for a Working Holiday (Temporary) (Class TZ) visa, Subclass 417, made by Mr. Chou. The dispute concerned whether Mr. Chou had completed the required period of specified work in regional Australia while holding the visa and whether he had been remunerated in accordance with Australian law.

The Tribunal was required to determine if Mr. Chou had carried out specified work in regional Australia for a period equivalent to at least three months of full-time work as a Subclass 417 visa holder. Additionally, the Tribunal had to ascertain whether he had been remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015. The definition of "specified work" and "regional Australia" were to be interpreted by reference to the Migration (LIN20/103: Subclass 417 (Working Holiday) Visa – Regional Australia and Specified Work) Instrument 2020.

The Tribunal reasoned that the applicant had satisfied the criteria under clause 417.211 of the Regulations. The applicant had picked strawberries and blueberries for approximately three months, which constituted specified work under the relevant instrument. While the applicant was paid by piece rate, and the amounts varied due to his speed and lack of prior experience, the Tribunal noted that Departmental guidelines suggest three months is equivalent to 88 days. The Tribunal also considered guidance from the Fair Work Ombudsman regarding piece rate payments, which indicated that such arrangements are permissible if an award or agreement allows for them, or if there is a written and signed piecework agreement. The Tribunal concluded that the applicant met the criteria for the grant of the visa.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the applicant meets the criteria under clause 417.211 of Schedule 2 to the Regulations.