Henriksen (Migration)

[2017] AATA 1111

Henriksen (Migration) [2017] AATA 1111 (3 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas Henriksen

CASE NUMBER:  1701500

DIBP REFERENCE(S):  BCC2016/2971813

MEMBER:Frances Simmons

DATE:3 July 2017

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 04 July 2017 at 6:30 pm

CATCHWORDS
Migration – Working Holiday (Temporary)(Class TZ) visa – Subclass 417 (Working Holiday) – Remuneration for work – Incorrect information on specified work questionnaire – Paid in accordance with award – Evidence of payslips, photographs and statutory declaration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl. 417.111, cl 417.211, cl 417.221, IMMI 16/041

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 Immigration on 13 January 2017 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 7 September 2016. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.221 because the delegate was not satisfied that the applicant was remunerated for his work in accordance with relevant Australian legislation and awards.

4. The applicant appeared before the Tribunal on 19 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Steve Guyett, the applicant’s employer during the relevant period.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has met one of the requirements for a second working holiday visa. That is, whether he has carried out 3 months ‘specified work’ in regional Australia for a period or periods equivalent to 3 months full time work.

7. 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.

   Evidence before the Department

8. The applicant is a citizen of Denmark. He arrived in Australia on 26 January 2016 holding a Subclass 417 visa.

9. The applicant declared he undertook specified work with A Croft & S R Guyett (ABN: 97 337 961 188) from 21 May 2016 to 04 September 2016 in the 2358 regional postcode area.

10. The applicant provided a form 1263 which stated that he undertook specified work (livestock care and timber product) with A Croft & SR Guyett (ABN: 97 337 961 188) from 21 May 2016 to 04 September 2016 in the 2358 regional postcode area. The payslips and specified work questionnaire submitted by the applicant indicate that he was initially paid an hourly rate of $14.10 per hour which increased to $14.48 from 1 July 2016. Based on this hourly rate the delegate was unable to be satisfied that the applicant had been appropriately remunerated in accordance with the relevant Australian legislation and awards as prescribed in regulation 417.211 (5)(c)

    Additional evidence to the Tribunal

11. The applicant submitted that he was being remunerated as a Farm Hand level 1 (with keep) in accordance with the Pastoral Award 2010 (MA000035) between 21 May 2016 and 4 September 2016, a period of 106 days. He stated that keep includes food and accommodation.  He stated that he made a mistake on his specified work questionnaire, when he stated he did not take the unpaid breaks out of the number of hours of work he completed. He stated that he only worked 38 hours per week, not 45 hours a week. The applicant submitted his payslips.

12. The applicant submitted a statutory declaration from his employer, Ms Abby Crofts, which states that the applicant worked at her property in Northern NSW to complete his farm work for his second year visa. Ms Crofts states that the applicant was paid the award wage for a Farm and Live Stock Hand as per the Fair Work pay guide for the Pastoral Award 2010 Level 1 with Keep. She states the applicant was paid in accordance with the award for 2016 and ‘appropriate pay adjustments were made in July for CPI increase’. She further states that the applicant received full board and keep while in their employment and all the entitlements as per the award.

13. The applicant appeared before the Tribunal on 19 June 2017. He submitted a copy of the NSW Farmers Rural Wage Guide 2015/2016 which notes that, in accordance with clause 28.3 of the Pastoral Award, if keep is provided then the minimum wage will be the rates prescribed less $120.94 per week. He gave evidence that he worked five days a week at the property owned by Abby Crofts and Steve Guyett and he was paid in accordance with the Pastoral Award as a level 1 farmhand with keep. He gave evidence that he was provided with accommodation on the property and also with meals.  He provided details about the work he did, his accommodation, and the arrangements for eating meals on the property.

14. The Tribunal attempted to contact Ms Abby Crofts but she was unavailable on her mobile phone. The Tribunal was able to take telephone evidence from, Mr Steve Guyett, who confirmed the circumstances in which the applicant lived and worked at their property between May and September 2016, described the accommodation in which the applicant and another farmhand who was working at the property slept, and sent photographs of this accommodation to the applicant’s mobile to show the Tribunal. Mr Guyett gave evidence that the applicant was paid in accordance with the relevant award as a farm hand with keep. He stated that they often employed people on working holiday visas and they had never encountered this issue before.

15. After the hearing the applicant submitted: bank records in his name from Westpac showing payments made by A S Crofts and SR Guyett during the relevant period (including a final payment that included a payment for accrued annual leave) and which indicate that he was present in the Armidale area during the relevant period; statements from his superannuation account which show that he was paid his superannuation entitlements during the relevant period; photographs of the accommodation he stayed in when he worked for A Croft & S R Guyett; photographs of work undertaken by the applicant; a letter from the accounts of A Croft & S R Guyett.

    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 IMMI 16/041.

17. Having considered the evidence now before it, the Tribunal accepts that the work declared by the applicant comes within the 'plant and animal cultivation' category specified in the relevant instrument, and the postcode 2358 declared is included as a specified postcode. It accepts that he carried out this work while the holder of a subclass 417 visa, as he entered Australia on 26 January 2016 on this visa. Therefore the Tribunal is satisfied the applicant meets cl.417.211(5)(a).

18. Before the Tribunal the applicant has claimed he worked full time at the farm for the full declared period from 21 May 2016 to 4 September 2016, which is a period of 106 days. 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.

19. 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.

20. The applicant’s evidence to the Tribunal indicates that he worked 38 hours per week for the full declared period; he has stated that his statement that he worked 45 hours a week was incorrect. The applicant’s evidence that he worked full-time at the farm for the full declared period was supported by the Statutory Declaration from Ms Abby Croft, the owner of the farm property and his employer. The Tribunal accepts the applicant worked for at least a three month period  on a full time basis and meets cl. 417.211(5)(b).

21. The remaining issue is whether the applicant has been remunerated in accordance with Australian legislation and awards. The Tribunal notes that Departmental guidelines suggest remuneration verification in this context is intended to be a relatively 'light touch' processing check rather than an exhaustive analysis of the applicant's pay rate history.

22. The pay slips submitted by the applicant indicated that he initially received an hourly pay rate of $14.10 and that this rose to an hourly rate of $14.478 after 1 July 2016. The Tribunal accepts that this is consistent with the Pastoral Award (MA000035) for a full-time Farm and Livestock hand with keep. The Tribunal notes that under the award, ‘keep’ means good and sufficient living accommodation and good and sufficient rations of sufficient quantity; sound, well-cooked and properly served by the cook or the cook’s offsider; but it will not include accommodation under a roof or cooking when circumstances render such accommodation or cooking impracticable.

23. At the Tribunal hearing the applicant gave evidence that he slept in an outhouse with two beds that accommodated two farm hands. He shared this accommodation with another 417 visa holder who has now returned home. He had daily access to a bathroom and he received regular meals. His employer has corroborated his claims that he was employed with keep and the Tribunal has been provided with photographs of the applicant’s accommodation. On the evidence before it, the Tribunal accepts the applicant was provided with good and sufficient living accommodation and good and sufficient rations of sufficient quantity.

24. On balance, having regard to all of the material before it, the Tribunal is satisfied that the applicant's remuneration in this case was appropriate. The Tribunal is prepared to accept the applicant was remunerated in accordance with Australian legislation and awards and meets cl.417.211(5)(c).

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

26. Given the findings above, 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

27. 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.

    Frances Simmons

    
    

    Member