Hsu (Migration)

[2017] AATA 1142

Hsu (Migration) [2017] AATA 1142 (28 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Ling Yi Hsu

CASE NUMBER:  1622339

DIBP REFERENCE(S):  BCC2016/3092876

MEMBER:Meena Sripathy

DATE:28 June 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 28 June 2017 at 2:17pm

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Remunerated as per legislation and awards – Paid by piecework arrangement – Worked full period claimed

LEGISLATION
Migration Act 1958, s65
Migration Regulations 1994, Schedule 2, cl 417.111, cl 417.211(5), IMMI 16/087

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 7 December 2016 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 17 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.417.211(5) because the delegate was not satisfied on the evidence provided that the applicant had been appropriately remunerated for their work in accordance with Australian legislation and awards, noting that the applicant appears to have been paid at a piece rate but there was no evidence of a piecework agreement.

4.    The applicant appeared before the Tribunal on 22 June 2017 to give evidence and present arguments. The Tribunal also took evidence from I Feng Lin, a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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 meets cl.417.211(5).

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

7. 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 16/087.

8.    The applicant claimed in her application that she undertook specified work with Solar Staff Supplying P/L ABN 88606270197 from 1-15 June 2016 (15 days) in postcode area 4510 and with JH Totten Pty Ltd ABN 27608284804 from 22 June to 8 September 2016 (79 days) in postcode area 4519.  She provided signed Form 1263 from each of the employers and payslips in support of her application. 

9.    At the commencement of the hearing, the applicant provided a letter from Ching Chung Chang of Solar Staff Supplying Pty Ltd dated 17 December 2016 certifying that the applicant was employed picking raspberries from 1-15 June 2016 and the season finished on 22 June 2016; copies of the Form 1263 previously provided; and bank statements covering the period of claimed employment. 

1. She told the Tribunal about the regional work she completed.  She first went to Caboolture in Queensland on 1 June 2016 to pick raspberries.  She said she recalls signing something before starting – it was in English and she couldn’t read it but someone explained that it told them what they would be paid.  They were paid on a piecework basis, the rate was  $0.60 per punnet. She said she believed that she provided this document to the Tribunal. The Tribunal explained that it did not have a copy of it, and agreed to given her time following the hearing to provide it.  It asked her about the hours and days she worked.  She said they started around 6.30 am and worked until they were picked up – it depended on how much fruit there was. They worked 5-6 days a week for 15 days.  The second job was picking strawberries.  She went to Beerwah for this.  She stayed in a farm shed, for which she paid around $110-120 per week.  She was paid on a piecework rate for this also, but the rate fluctuated depending on the amount of fruit.  She believes she signed a document about this but does not have a copy of it. 

2. The Tribunal discussed the issues arising in her case. It explained that given the weekly amount of her pay, and the hours she says she worked per day, it is clear she was not paid the minimum hourly rate. In the absence of a piecework agreement, the Tribunal may not be satisfied that she has been remunerated in accordance with Australian law for this work, or it may not be satisfied that she worked full time.  In response the applicant reiterated that she signed a piecework agreement and that she worked every day and was available for the whole day and worked until they stopped her so it was full time.  She said her witness worked with her on both jobs and can attest to the hours and rate of pay.  He also applied for a second working holiday visa on this basis and was granted his visa.

3. The Tribunal spoke to her witness, I Feng Lin.  He confirmed that he worked the same two jobs as the applicant.  They travelled to the jobs together.  He said he cannot recall signing a document about the rate of payment, but there may have been one.  He confirmed that they worked most days and for 7 hours a day.  In the strawberry picking job he also couldn’t recall signing a piecework agreement.  He was not asked to provide this by the Department for his visa application. He confirmed he was granted a second working holiday visa on the basis of the same two jobs. 

4. On 28 June 2017 the applicant provided evidence of photos of her at work, and copies of piecework agreements in respect of each of the two jobs. Department records obtained by the Tribunal in respect of the witness confirmed that, consistent with his evidence, he is the current holder of a second subclass 417 visa, granted on 9 November 2016.  

5. Having considered the evidence now before it, including the piecework agreements and bank statements provided, 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 4510 and 4519 are included as a specified postcode. The Tribunal is also satisfied that the bank statements submitted shows withdrawals of funds in the vicinity of the claimed employment. 

6. The Tribunal accepts the applicant arrived in Australia on 9 November 2015 on a subclass 417 visa which was valid until 9 November 2016 and therefore she carried out specified work in regional Australia as the holder of a Working Holiday visa and therefore satisfies cl.417.211(5)(a).

7. The Tribunal accepts on the applicant’s oral evidence, payslips and Form 1263s that the applicant undertook the equivalent of at least three months (or 88 days) work. It accepts that she worked for 15 days picking raspberries and 79 days picking strawberries. The witness’ evidence and bank statements corroborate these claims.  She meets cl.417.211(5)(b).

8. With regard to the requirement in cl. 417.211(5)(c) that the work was remunerated in accordance with Australian legislation and awards, the Tribunal accepts that the applicant was paid in both jobs on the basis of piecework arrangement.  Evidence of piecework agreements have now been provided to the Tribunal.   Although the Tribunal has some concerns about the gross amount of pay the applicant received, noting that it appears to be well below the minimum weekly wage[1] it is satisfied that she worked the full period as claimed and that she signed piecework agreements. The Tribunal is aware there are widespread issues of underpayment and exploitation of temporary visa holder workers particularly in the context of the seasonal fruit picking industry, and there has been scrutiny of this by relevant government bodies,[2] including a test case of workplace laws on piece rates currently underway before the Federal Court.[3]  Departmental guidelines (which are not binding on the Tribunal although it is reasonable to have regard to them) state that the remuneration verification contemplated in this provision is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history.  Taking all of this into consideration, the Tribunal is satisfied the applicant meets the requirement in cl.417.211(5)(c). 

   [1] The weekly wage rate level 1 under the Horticulture Award is $672.70: The Tribunal also notes information which indicates pieceworkers may get paid less than an hourly rate worker if they are slow or still learning or depending on the picking conditions: >

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

9. 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

1. 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.

Meena Sripathy

Member