Newman (Migration)

[2017] AATA 937

Newman (Migration) [2017] AATA 937 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr George Newman

CASE NUMBER:  1700208

DIBP REFERENCE(S):  BCC2016/2977421

MEMBER:Mary Urquhart

DATE:22 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2017 at 1:20pm

CATCHWORDS

Migration – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Remuneration in accordance with relevant legislation – Specified work in regional Australia – Applicant unable to contact employer for evidence – Deductions from pay for miscellaneous goods – No piece rate agreement

LEGISLATION

Migration Act 1958, s 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 22 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 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 (5).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211 (5) (c) because he was unable to be satisfied that the applicant has been remunerated for their work in accordance with the relevant Australian legislation and awards.

4. On 4 April 2017 the Tribunal  wrote to the applicant inviting him to provide any evidence of an authorisation to deduct wages or other information to assist in assessing whether he had been remunerated for his work in accordance with the relevant Australian legislation and awards whilst working for Kalo Hua Tangitau (ABN: 86 576 159 394).

5. The Tribunal  received a response dated 17 April 2017 in which the applicant submitted inter alia the following:

   With regards to your Invitation to Provide Information letter I have attempted on several occasions to contact Kalo Hua Tangitau in order to ask her to send me any documents she may have for me to use as evidence in my appeal such as authorisation to deduct wages.

   I have phoned the telephone number on the sign off sheet four times between the 6^th April and 16^th April but have been unsuccessful in reaching her. The first time I called the number I got the ringing tone but there was no answer and it cut off. On the second attempt it went straight to a recorded message saying “The number is not connected” and I have received the same message each time since.  Please see evidence of attempted calls attached.

   Obviously I am keen in making contact with Kalo Hua Tangitau in order to get any evidence that would help my case and as a result of not being able to reach her on the number I have for her I have searched the internet to see if she is still advertising for farm workers.  From there I was hoping to get her new contact details. However there are no current adverts from her.

   I then thought of contacting Rocky Hill Table Grapes (see evidence attached) to see if they might have contact details for her but the office is closed for the Easter Holidays.

   ....I will continue to try Rocky Hill Table Grapes once the office reopens after the Easter break or you may be happy that the attached evidence shows I have attempted to make contact in order to get further evidence. Please advise me if you require me to continue trying.

6. The applicant provided some 7 screen shots showing numerous attempted phone calls as referred to in his submission.

7. The applicant appeared before the Tribunal on 10 May 2017 to give evidence and present arguments.

   Post Hearing

8. On 15 May 2017 the Tribunal received a further documentation from the applicant.  It included a copy of a letter sent by email by the applicant to Richard [email protected] and a copy of a letter dated 11 May 2017 on Rockyhill Table Grapes letter head.

9. The Rockyhill Table Grapes letter states

   “I George Newman t while the applicant was working at Rockyhill Table Grapes agree to have indicating agreement between the applicant and the employer to have miscellaneous items such as “cigarettes” deducted from my wages”.

10. The letter is signed by the applicant and by his employer.

11. The Tribunal  has considered the documentation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the requirements for the visa specifically whether he has been remunerated for work in accordance with the relevant Australian legislation in accordance with the requirements in 417.211(5)(c).

14. 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.

15. On 7 September 2016 the applicant applied for a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa. The applicant declared that he undertook specified work with the following employers:

    • Natalya Em (ABN: 60 691 980 843) from 30/07/2016 to 07/09/2016 in the 5322 regional postcode area and
    • Kalo Hua Tangitau (ABN: 86 576 159 394) from 02/06/2016 to 24/07/2016 in the 0871 regional postcode area.

16. The applicant provided supporting documents being:

    ·     Specified Work Questionnaire

    ·     Completed Form 1263 Employment Verification Form

    ·     Screenshot of bank transactions

    ·     Payslips

    ·     Cash deposit receipts

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

17. The supporting Form 1263 indicates that the applicant undertook specified work as claimed with the following employers Natalya Em (ABN: 60 691 980 843) from 30/07/2016 to 07/09/2016 in the 5322 regional postcode area and Kalo Hua Tangitau (ABN: 86 576 159 394) from 02/06/2016 to 24/07/2016 in the 0871 regional postcode area.

18. The delegate appears to have accepted that the applicant satisfied the 88 days’ work in a regional area requirement made up of 35 days at his first job and 53 days at the second.

19. However in relation to Kalo Hua Tangitau (ABN 86 576 159 394) where the applicant worked from 02/06/2016 to 24/07/2016, the evidence,  including the information declared on the specified work questionnaire, shows that the applicant had deducted a total of $616 for accommodation and smokes with a further $268 deducted for tax. These deductions leave the applicant with a total take home pay of $831 for period. The delegate whilst acknowledging the applicant was aware of the deductions depleting his take home pay, was unable to be satisfied that the applicant has been remunerated for all of his work in accordance with relevant Australian legislation and awards as prescribed in Regulation 417.211(5)(c),

20. The applicant is a 24 year old British national from Sidcup, near Greenwich, London. He first arrived in Australia in September 2015. He worked as an electrician’s trade assistant before coming out on his first working Holiday visa. He gave his evidence in a frank and straight forward manner showing respect for the Tribunal  and the issue before it.

21. Asked to tell the Tribunal in his own words why he thinks his visa application was refused he said that he “did not earn enough money in line with legislation.”

22. At the hearing the Tribunal discussed with the applicant whether he had consented to the deductions and if so whether any authorisation to deduct was signed and what if any agreements there had been and what evidence of these matters  he could provide.

23. The applicant argued that the total amount of take home pay was incorrect as it did not include his last payslip; he also argued the calculation should not have included the deductions for rent and sundries as he had “chosen to pay for these from his earnings”. However, he agreed he had not been able to “thus far” obtain a signed agreement regarding the deductions.

24. Significantly in this matter, the applicant volunteered that he was not given any piece rate agreement and said he should have been paid on an hourly rate; he agreed he had not been paid the correct rate; in fact his evidence is that the “pay was awful as it was”.

25. However, the applicant said he had accommodation, work and was seeing Australia. Now, given the difficulties he has trying to get a further visa, he said he felt he was personally being punished because after all he completed his farm work. He said he was told “do your days and you will be signed off”. He did his 88 days. Others he worked with were all signed off and were not “investigated by Immigration he said.

26. The Tribunal  well understands the disappointment, feelings of unfair treatment and frustration of the position the applicant finds himself in.

27. The Tribunal records it has taken into account the evidence dated 11 May 2017 regarding deductions. However this is not evidence of a signed agreement prior to the commencement of his work and as such can be given little weight.

28. Whilst sympathetic to the applicant’s situation and acknowledging the difficulty the applicant has had in attempting to obtain any helpful evidence to support his application the Tribunal never the less has no discretion to overcome the requirements of the legislative provisions.

29. The Tribunal notes the legislative provisions were introduced on 1 December 2015 to address a trend of Subclass 417 visa holders accepting underpaid or non-paid work that was contributing to their exploitation.

30. Accordingly, based on the above findings, the Tribunal has no option other than to find that the applicant does not meet the criteria for the grant of the visa.

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

    DECISION

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

    Mary Urquhart

    
    

    Member