KWOK (Migration)

[2017] AATA 584

KWOK (Migration) [2017] AATA 584 (4 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hoi Tai KWOK

CASE NUMBER:  1619688

DIBP REFERENCE(S):  BCC2016/2084079

MEMBER:Meena Sripathy

DATE:4 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 April 2017 at 4:50pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Weekly pay did not reflect full time work – Not appropriate level of remuneration – Significantly low level of weekly pay – Not full time work – Paid well below minimum hourly rate 

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 – cl 417.211, cl 417.211(5), cl 417.211(5)(a),

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 14 November 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 June 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 completed the equivalent of 3 months full time work and had been appropriately remunerated in accordance with Australian legislation and awards.

4. The applicant appeared before the Tribunal on 31 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. 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 for applications made before 1 July 2016.

7. In his application for the visa the applicant declared he undertook specified work with QV Contracting Pty Ltd from 31 December 2015 to 20 January 2016 (21 days) in the postcode area of 3500 picking grapes and with National A Contracting P/L from 4 February 2016 to 13 April 2016 (70 days) as a farm hand also in the postcode area 3500.

8. Upon request to provide further evidence to support his claim that he completed specified work as defined in the relevant instrument he provided Completed Forms 1263, a bank transaction list, photos and payslips.

9. Before the Tribunal the applicant provided copies of documents previously submitted, including the Form 1263, payslips and his NAB bank statements for the periods January to July 2016. 

10. At the hearing the applicant confirmed that he came to Australia on 3 July 2015 on a working holiday visa.  He went to Mildura for work from 2 January 2016 to 30 April 2016.  He worked for two separate companies in that period.  The first one was QV Contracting. He travelled to Mildura by train with friends.  He stayed at an address in Mildura at a couple’s home.  He paid them $110 per week in rent.  He was picked up in a bus at 5 or 7 am and driven to different farms and worked until 1 or 3 pm each day. He said he worked 7 days a week.  After this job, he worked for another employer also in Mildura.  He picked grapes for them also and was paid on a piecework basis. The Tribunal discussed with the applicant the issue of his rate of payment and total amount of pay received and explained that the weekly pay does not appear to reflect full time work or an appropriate level of remuneration. It asked the applicant if he signed a piecework agreement in relation to these jobs? He said he recalls signing an agreement with the second employer, and requested time to provide this document.  The Tribunal agreed to give him one week to provide further evidence.

11. On 3 April 2017 the Tribunal received from the applicant copies of a signed piecework agreement dated 4 February 2016 between the applicant and National A Contracting Pty Ltd, including a schedule of rates and an Employment Agreement dated 28 December 2015 between the applicant and QV Contracting & Management Group Pty Ltd also setting out the piecework rate.   

12. Having considered all of the evidence now before it, including the oral evidence, documents and information located by the Tribunal, it makes the following findings. The Tribunal accepts on the basis of the applicant’s oral evidence, completed Forms 1263 and payslips that the applicant has carried out work as claimed between 31 December 2015 and 20 January 2016 and from 4 February 2016 to 13 April 2016 in Mildura, Victoria picking grapes for two different employers. The Tribunal accepts that the grape picking work undertaken by the applicant comes within the ‘plant and animal cultivation’ category and that Mildura is included as regional Australia under the relevant instrument. Accordingly he meets the requirements of cl.417.211(5)(a).

13. The issue in the present case is whether the work carried out by the applicant was full time and whether he has been remunerated in accordance with Australian legislation or awards.  The applicant claims he worked full time hours between 5 or 7 in the morning, to 1 or 3 in the afternoon, 7 days a week.  He claims that he was paid on a piecework basis, and following the hearing he provided copies of a signed piecework agreement with each of the employers.  While the Tribunal accepts that, the provision of a signed piecework agreement indicates that payment to the applicant on a piecework basis was permitted under the relevant Horticulture aware, it remains concerned about the significantly low level of weekly pay he earned in the periods worked. The payslips provided indicate weekly payments of $51.59, $156.10 and $15.00 respectively for the three week period with QV Contracting.  On the basis of this amount of pay, the Tribunal is unable to accept that the applicant worked full time for QV Contracting.  The payslips for his employment with National A Contracting show weekly payments between $133.45 and $424.25, with most weeks well under $200. While the payslips themselves provide no information about how the wage was calculated, as they do not refer to the number of units or piece rate paid, given the minimum weekly wage is $672.70 (according to clause 14 of the Horticulture Award)[1] the Tribunal finds it difficult see how he could have worked full time with this employer and be lawfully remunerated. On the basis of the information he provided of his pay, if he worked 38 hours a week he was effectively paid between $3.50 -$11 per hour during this period (most weeks well under $7/hour), well below minimum hourly rate of $17.70.

    [1] >

    Therefore, on the evidence provided, the Tribunal cannot be satisfied that the applicant worked at least three months full time and/or that he was remunerated in accordance with Australian legislation and awards.  

14. Therefore, the applicant does not satisfy cl.417.211(5). 

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

    DECISION

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

    Meena Sripathy

    
    

    Member