Murphy (Migration)

[2017] AATA 1487

Murphy (Migration) [2017] AATA 1487 (18 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Faye Kathleen Murphy

CASE NUMBER:  1700564

DIBP REFERENCE(S):  BCC2016/4353123

MEMBER:Christine Cody

DATE:18 August 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 18 August 2017 at 11:16am

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Specified work in regional Australia for 88 days – Beef cattle farm work for one employer – Weekend days counted for full time employment – Salary in line with Pastoral Award 2010

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 417.211(5), r 1.03

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 4 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 23 December 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 applicant had been in Australia as the holder of a Subclass 417 visa, and the delegate was not satisfied that the applicant had carried out specified work in regional Australia for a total period of at least three months as the holder of that visa.

4. Prior to the hearing the Tribunal requested further evidence to address how the applicant may meet the criteria for the grant of the visa. In particular, evidence in relation to the equivalent of three months full-time work being carried out, and that the remuneration was in accordance with the relevant Australian legislation and awards.

5. On the basis of information provided to the Tribunal after the refusal of the application by the delegate, and 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?

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 2016/041.

   Claims and evidence

7. The applicant is 23 years old, and the holder of a passport issued by the United Kingdom authorities on 20 March 2012. She arrived in Australia on 30 December 2015 as the holder of a subclass 417 visa.

8. The applicant’s first Subclass 417 visa expired on 23 December 2016 and she has remained in Australia as the holder of a bridging visa since lodging the present application on 23 December 2016.

9. In the visa application form, the applicant indicated that she had undertaken specified work in regional Australia for a total of three months in the industry of agriculture, forestry and fishing. The applicant specified that she had been employed by DN and TA Teys trading as Lakeland Roadhouse (ABN 83070164336), in regional postcode 4871, from 23 September 2016 until 23 December 2016. She also provided an Employment Verification Form 1263, signed by her employer, which noted that she was working on a beef cattle property, and that the actual number of days worked was 65 days in the period from 23 September 2016 until 23 December 2016.

10. On 4 January 2017 the delegate refused the application on the basis that the form indicates that the applicant worked for 65 days, which the delegate was not satisfied was equivalent to at least three months full-time specified regional work. Therefore the delegate did not accept that she met the requirements of regulation 417.211(5).

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

11. The term 'work' is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration. The expression, 'three months' is not defined in the Regulations; however Departmental guidelines (PAM 3) suggests that three 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.

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

13. The applicant provided additional information (in the form of bank account statements, payslips, payslip summaries, a letter from her employer, and submissions about her work and the industry) to the Tribunal which can be summarised as follows:

    ·     The applicant worked  on a beef cattle farm,  undertaking duties including feeding and watering cattle,  feeding calves, helping with fencing and repairs of the fence line, and general farming duties on the cattle farm property. The employer was impressed that she was very organised, reliable and willing to work on any project that was assigned to her.

    ·     She worked for a three month period, and during that period she worked on average 5.5 days per week (five 8 hour week days and a half day Saturday). She started work the day she arrived (23 September 2016) and she worked a half day on the last day (a Saturday).

    ·     Payslips and documents from the employer indicate that her annual salary rate was $45,760 and her hourly rate was $22, a weekly gross rate on average of over $900. The submissions note that the employer advises that the individual agreements for working holiday makers on their farm are above the award and are a flat rate of $22 per hour. It was noted that a basic guide for inexperienced farm hands was sourced from a Pastoral Award 2010, namely a base rate of $18.29 per hour, a weekly rate of $694.90[1].

    [1] >

    The Tribunal was also informed that the employer was willing to give evidence at hearing of the work of the applicant. The Tribunal did not consider it necessary to call the witness having regard to its findings.

14. The relevant instrument, “Working Holiday visa – Definitions of “Specified Work and Regional Australia” (IMMI2016/041) states that specified work includes animal cultivation, maintaining animals for the purposes of selling them or their bodily produce, including natural increase. The Tribunal is satisfied on the evidence presented that the work done by the applicant, namely working with cattle, is within the categories as set out in the relevant instrument. Further, the Tribunal accepts that the applicant undertook the work in postcode 4871, an area specified to be Regional Australia in IMMI2016/041, and that she did so while holding a working holiday visa. Therefore the Tribunal is satisfied the applicant meets cl.417.211(5)(a).

15. The Tribunal accepts that the applicant worked on a full time basis, from 23 September until 23 December 2016, and that the total days in that period are 91. The Tribunal accepts that the actual days worked were less than this, as she did not (and was not required to) work seven days per week. The Tribunal accepts that she worked on average 5.5 days per week and that this is the equivalent of full time work, and thus the Tribunal accepts that she worked for three months in this employ.

16. The Tribunal is prepared to accept that she worked for a three month period on a full time basis in accordance with industry standard at this location and that she meets cl. 417.211(5)(b).

17. As the work was undertaken after 1 December 2015, the Tribunal has considered whether the applicant was remunerated in accordance with relevant Australian legislation and awards.

18. According to Departmental Guidelines (which are not binding upon the Tribunal):

    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. In identified instances of inadequate remuneration, its officers should refer this to the Fair Work Ombudsman for investigation[2].

    [2] PAM3 Schedule 2 Visa 417

19. The Tribunal is aware that there have been issues of underpayment and exploitation of seasonal workers. However the Tribunal has considered the applicant’s wage (AUD 22), the pastoral award information provided, and the information from the Guidelines about the minimum wage:

    The national minimum hourly wage (before tax) for 2015-2016 is AUD 17.29. This is AUD 656.90 for a 38 hour week. Casual employees also receive a casual loading of at least a 25% on this base rate[3].

    [3] PAM3 Schedule 2 Visa 417

20. The Tribunal is prepared to accept that the applicant, who has been paid at a flat rate above the minimum wage and a base Pastoral Award, was remunerated in accordance with Australian legislation and awards and meets cl.417.211(5)(c).Therefore, the applicant satisfies cl.417.211(5). 

21. 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

22. 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.

    Christine Cody

    
    

    Member