JIANG (Migration)

[2018] AATA 1121

JIANG (Migration) [2018] AATA 1121 (19 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MINLAN JIANG

CASE NUMBER:  1704706

DIBP REFERENCE(S):  BCC2016/2884536

MEMBER:Tigiilagi Eteuati

DATE:19 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 19 March 2018 at 1:11pm

CATCHWORDS
Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Length of full-time work – Payment clauses of Horticulture award 2010 – Piece rate agreement – Record of payslips – Witness credibility

LEGISLATION
Migration Act 1958, ss 65,
Migration Regulation 1994, Schedule 2 cl 417.211

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 27 February 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 30 August 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(5).

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 that the applicant carried out at least three months full-time specified work in regional Australia as the holder of the previous subclass 417 visa

4. The applicant appeared before the Tribunal on 24 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Has the applicant carried out the requisite specified work in regional Australia and been remunerated in accordance with relevant Australian legislation and awards?

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 08/048. 

8. On 30 August 2016 the applicant applied for a subclass 417 Working Holiday visa. As she had previously been the holder of a subclass 417 visa, she was required to meet the criteria in clause 417.211(5) of Schedule 2 to the Migration Regulations 1994.

9. Under subclause 417.211(5) (a) and (b) the applicant was required to have carried out at least three months full-time specified work in regional Australia as the holder of the previous subclass 417 visa.

10. Under subclass 417.211(5)(c) the applicant was required to have been remunerated for the work in accordance with relevant Australian legislation and awards.

11. The relevant award for the applicant’s work was the Horticulture Award 2010 which, during the period in which the applicant was employed by AS BOTAK, provided that the minimum hourly pay wage for a casual employee was $21.61. If the applicant had been subject to a piecework agreement the hourly pay rate for the purpose of calculating piecework rates was $24.20. However, for piecework rates to apply, there must have been a written agreement between the employer and the applicant, signed by the employer and the employee.

12. In the form 1263 completed by the applicant and her employers it was claimed that the applicant worked for a company named AS BOTAK from 4 April 2016 to 1 July 2016. It was claimed that the applicant worked 63 days for the company.

13. In the form 1263 it was claimed that the applicant then worked for Metropolitan Mik from 2 July 2016 to 7 August 2016. It was claimed that the applicant worked for 27 days for the company.

14. The applicant provided the Department with bank statements including a bank statement for June 2016. The Minister delegate noticed that the applicant’s bank statement for June 2016 indicated that the applicant had been travelling from Tasmania to Queensland during June 2016 and that this appeared to contradict the applicant’s claims to have worked for AS BOTAK until July 2016.

15. At the hearing the applicant explained that she had worked for AS BOTAK until 1 June 2016. The applicant claimed that from 1 June 2016 she spent time travelling in Tasmania and left Tasmania on 12 June 2016. From 12 June 2016 the applicant claimed that she made her way up to Beerwah in Queensland where she started working for Metropolitan Mik on 18 June 2016. Her evidence was that she was not working between 1 June 2016 and 17 June 2016.

16. The applicant provided a letter from a Mr Lan which indicated that he worked with both AS BOTAK and Metropolitan Mick. Mr Lan explained that his arrangement with these companies was that they would provide records of the hours worked by the applicant per week and that he would prepare payslips for the applicant and deposit her wages into her bank account. Mr Lan claimed that he had mistakenly provided the applicant with two payslips, for the last two weeks in June, under the letterhead of AS BOTAK when these payslips were for work conducted for Metropolitan Mick.

17. The Tribunal is very concerned about the truthfulness of Mr Lan’s statement. This is because although Mr Lan indicated that he would prepare the payslips based on a record of hours worked by the applicant per week, none of the payslips that the applicant has provided to the Tribunal and the Department indicate that she was paid by the hour. Rather, the payslips appear to indicate that the applicant was paid a piecework rate. This is concerning because Mr Lan could not have accurately calculated the amount owed to the applicant if he was only provided the hours that she worked. Indeed, if the applicant was being paid at a piecework rate the relevant information to be provided to Mr Lan was the amount of units that the applicant picked or packed and the rate for the applicant to be paid per unit.

18. The second reason of concern for the Tribunal is that under the horticulture award 2010 there could be no piecework rate applied unless there was a written piecework agreement signed by both the employee and the employer. Mr Lan admitted in his letter that “visa applicants are not given any written agreement and they in most cases do not even know the name of the employer as everything is arranged through me.” The Tribunal attempted to contact Mr Lan by telephone during the hearing but he was uncontactable by telephone.

19. The applicant claimed that she had in fact worked for 53 days for AS BOTAK and for 37 days for Metropolitan Mick. However, the payslips that the applicant provided from AS BOTAK indicated that the applicant had only worked for 36 days from the period for April 2016 to 29 May 2016. Therefore, even if the Tribunal accepted that the applicant also worked from 30 May 2016 to 1 June 2016 and worked the full 37 days that she claims to have worked for Metropolitan Mick (which is doubtful given the inaccuracy of her evidence regarding the days she worked for AS BOTAK), the applicant would have only worked for 76 days, 12 days short of the 88 days which Departmental policy considers to equate to 3 months full-time work.

20. Thus, the Tribunal finds that the applicant did not meet the criteria in clause 417.211(5)(a) and (b).

21. An additional concern is that, because there was no piece rate agreement, the applicant was required to be paid at the hourly rate of $21.61. In the WHM Specified Work Questionnaire, the applicant indicated that she worked for “about 50 hours” a week for AS BOTAK. Therefore the applicant should have been paid about $1080.5 a week. However, her payslips from AS BOTAK indicate that she was paid between $114.37 and $483.70 per week. Thus, the applicant was not being paid in accordance with the Horticulture Award 2010 and was not being remunerated in accordance with Australian legislation and awards while she was working with AS BOTAK.

22. Similarly, because there was no piece rate agreement, the applicant was required to be paid at the hourly rate of $21.61 for the two weeks she claimed to have worked with Metropolitan Mik prior to 1 July 2016 and $22.13 per hour from 1 July 2016 when the hourly rates under the Horticulture Award 2010 increased. In the WHM Specified Work Questionnaire, the applicant indicated that she worked for “about 36 hours” a week for Metropolitan Mik. Therefore the applicant should have been paid about $777.60 a week for the two weeks worked prior to 1 July 2016 and 796.68 for subsequent work in 2016.  However, her payslips from Metropolitan Mik indicate that she was paid between $108.34 and $538.10 per week. Thus, the applicant was not being paid in accordance with the Horticulture Award 2010 and was not being remunerated in accordance with Australian legislation and awards while she was working with Metropolitan Mik.

23. The applicant indicated that she was not paid well for her work and that there was not enough fruit to pick for her to be paid more money. Given the information provided by the applicant to the Tribunal and the payment clauses of the Horticulture Award 2010, the Tribunal can not see how this information alters the finding that the applicant did not meet the criteria in clause 417.211(5).

24. The Tribunal finds that the applicant did not meet the criteria in clause 417.211(5)(c).

25. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Tigiilagi Eteuati

    
    

    Member