Garvey (Migration)

[2020] AATA 3868

Garvey (Migration) [2020] AATA 3868 (16 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jack Garvey

CASE NUMBER:  1830319

HOME AFFAIRS REFERENCE(S):          BCC2018/2172380

MEMBER:Jane Marquard

DATE:16 September 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(5) of Schedule 2 to the Regulations.

Statement made on 16 September 2020 at 1:04pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – remunerated according to legislation and awards – payslips provided to tribunal – hours worked and rates of pay – paid at higher than national minimum wage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 417.111, 417.211(5)(c)

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 October 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 19 May 2018. 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.417.221 which requires that the applicant satisfy a number of criteria, including that the applicant was remunerated for work in accordance with relevant Australian legislation and awards (as prescribed in Regulations 417.211(5)(a) and 417.211(5)(c).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 (5)(c) as evidence had not been provided to indicate that the applicant had been remunerated for work in accordance with relevant Australian legislation and awards.

4. The only evidence provided to the Department was:

   ·The WHM 417 Specified Questionnaire Form 1263 indicating that the applicant had been employed by Moxey Farms Pty Ltd ABN 24078443599.

   ·The PAYG Summary for date period of 17/02/2018 to 19/05/2018.

5. The delegate of the Department was concerned that the PAYG summary did not indicate the rate of pay or number of hours worked.

6. New evidence was provided to the Tribunal. The applicant apologised for not providing the relevant documentation to the Department in time, claiming that the email was in his spam folder. He provided the following documents:

   ·Payslips for the relevant periods indicating that the applicant was paid into a bank account in his name, for between 69 and 76 hours each fortnightly pay period, at a rate of 21.2414 normal, 29.8505 overtime and Sunday at 25.5470.

7. No hearing was necessary in this matter as the Tribunal was able to determine the matter in the applicant’s favour.

8. 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).

9. ‘Specified work’ and “regional Australia’ are defined by reference to an instrument made by the Minister in writing for this purpose: cl.417.111.

10. The applicable instrument for that time period was IMMI 17/018 Working Holiday visa – Specified Work and Regional Australia Instrument 2017’.

11. Relevantly to this case ‘Regional Australia’ includes postcode 2805 and ‘specified work’ includes ‘plant and animal cultivation’.

12. The term 'work' is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.

13. The expression, '3 months' is not defined in the Regulations; however Departmental 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.

14. It follows that the issues for the Tribunal to determine are:

    ·Has the applicant carried out the requisite specified work in regional Australia; and, if so,

    ·Was the total period of the work carried out at least, or equivalent to, 3 months full-time work; and, if so,

    ·Was the applicant remunerated for the work in accordance with the relevant Australian legislation and awards.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

16. The Tribunal finds by reference to the documentation including the Form 1263 completed by the employer Moxey Farms, that the applicant was employed as a ‘silage worker’, involved in plant and animal cultivation. His jobs involved silage pit covering and driving heavy machinery. The Tribunal notes that the category ‘plant and animal cultivation’ in IMMI 17/018 includes general maintenance crop work. The Tribunal is satisfied therefore that the silage work was requisite specified work.

17. Having regard to the postcode, 2805, where the applicant worked, the Tribunal finds that the work was carried out within regional Australia as that term is defined in IMMI 17/018.

18. The Tribunal find that the requisite specified work was carried out in in regional Australia. The applicant therefore satisfies cl.417.211(5)(a).

    Was the work carried out for a total period or periods equivalent to at least 3 months’ full-time work?

19. The Tribunal finds by reference to the documentary evidence before it, including the Form 1263 and the payslips provided, that the applicant worked full-time for a period of three months from 17 February 2018 to 19 May 2018. The payslips and Form 1263 indicate that he worked 6 to 7 days a week for 10 to 12 hours a day over that period of time.

20. The expression, '3 months' is not defined in the Regulations; however Departmental 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. For applications made from 1 December 2015, the total period of work carried out, whether on a full-time, part-time or casual basis, must be or be the equivalent of at least three months of full-time work.One full day of work is defined as having worked the minimum number of hours considered a standard day by the particular industry in which the applicant is employed.

21. The Guidelines provide examples of instances that meet the 3 month specified work requirement. For example, if the applicant works on a farm for 3 months, from Monday to Friday each week, with Saturday and Sunday off, the weekends do not have to be “deducted” from the total 3 months, and the applicant is considered to have worked 7 days each week. Further, the Departmental guidelines specify that the work should be the equivalent of full-time work for that industry.

22. The Tribunal is satisfied therefore that the total period of work carried out was at least three months full-time work given that the applicant worked full-time over this period. Clause 417.211(5)(b) is therefore satisfied.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards for any work undertaken from 1 December 2015?

23. The Department’s policy guidelines in PAM3 in relation to appropriate remuneration includes as follows:

    Appropriate remuneration

    Case officers auditing a second Working Holiday visa application should undertake an additional step for remuneration verification. This will entail checking the hourly rate of pay on the pay slips provided by the applicant against minimum wage rates.

    Remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history. In the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted. Identified instances of inadequate remuneration should also subsequently be referred to the Fair Work Ombudsman for investigation. 

24. The national minimum wage[1] from 1 July 2017, was $18.29 per hour. This was also the minimum wage required under the Pastoral Award 2010 (MA000035) for an adult farm and livestock hand, level 1.  At the relevant point in time, in 2017, this was $694.90 per week, or $18.29 per hour, or $125.13 less per week with keep.

    [1] >

    The payslips for the applicant indicate that he was paid $23 an hour with higher rates for overtime and Sundays, and $2 per hour deducted for accommodation. Given the accommodation provided, the weekly salary was well within the relevant requirements.

25. On the basis of the evidence now before it the Tribunal is therefore satisfied that the applicant was remunerated in accordance with the relevant Australian legislation. Clause 417.211(5)(c) is therefore satisfied.

    Conclusion

26. Paragraphs (a), (b) and (c) of cl.417.211(5) having all been met, the Tribunal finds that cl.417.211(5) is satisfied.

27. Therefore, the applicant satisfies cl.417.211(5).

    DECISION

28. 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.

    Jane Marquard

    
    

    Member