Pagliarani (Migration)

[2021] AATA 2570

Pagliarani (Migration) [2021] AATA 2570 (2 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marco Pagliarani

CASE NUMBER:  2003961

HOME AFFAIRS REFERENCE(S):          BCC2019/5569400

MEMBER:Tania Flood

DATE:2 June 2021

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 02 June 2021 at 2:21pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – remuneration in accordance with relevant legislation and awards – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 17 February 2020 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 November 2019. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 417.211(5).

3. Prior to making its decision the Department requested the applicant to provide more information in relation to his application within 28 days of the date of the request.  The delegate refused to grant the visa on the basis that the requested information was not provided and she could not be satisfied that the applicant had carried out specified work in regional Australia as the holder of a subclass 417 Working Holiday visa.  The delegate concluded that the applicant did not meet cl 417.211(5) of the Regulations.

4. As part of the application for review the applicant provided a comprehensive submission to the Tribunal including a raft of evidence regarding his employment in regional Australia which is listed below.  In an email dated 13 April 2021 the applicant’s representative advised the Tribunal that the applicant returned home to Italy due to COVID-19 in 2020 and would like the application for review to be decided on the papers.  Accordingly, the Tribunal proceeded to decide the matter without taking any further steps to enable the applicant to appear before it.

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 had carried out specified work in regional Australia for a period of at least 3 months’ as the holder of a Subclass 417 visa and been remunerated in accordance with relevant Australian legislation and awards.  

   Application for a Working Holiday Visa

7. In his application for a Working Holiday Visa the applicant declared that he undertook specified work with the following employers:

8. Moondarra Blueberries (ABN 36104909944) in postcode area 3825 from 2/1/2019 to 16/3/2019 for a total of 74 days (picking blueberries) for which he received an hourly rate of pay.

9. Western Berry Company (ABN 78009235714) in postcode area 6507 from 12/11/2018 to 25 November 2018 for a total of 14 days (picking blueberries) for which he was remunerated under a piece rate agreement.

   Evidence provided to the Tribunal

10. In a submission dated 9 September 2020 the applicant’s representative states the applicant did not receive the Departments request for information and had completed the requirements for the grant of the visa at the time of processing.  The following documentary evidence was provided in support of his claims:

    -Copy of a Piecework Agreement between himself and LN Prompt Services Pty Ltd

    -Copies of payslips issued by Moondarra Blueberries Pty Ltd

    -Copies of bank statements

    -Payment summaries from LN Prompt Pty Ltd

    -PAYG Summary for the year ending 30 June 2019

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

11. Clause 417.211(5) requires that, at the time of the visa application, the applicant had carried out specified work in regional Australia for a total period of at least 3 months as the holder of a Subclass 417 visa. The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘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 Migration (LIN20/103: Subclass 417 (Working Holiday) visa – Regional Australia and Specified Work) Instrument 2020.

12. Relevant to this case “regional Australia” includes Victoria postcode 3825 and Western Australia postcode 6507 and ‘specified work’ includes:

    Plant and animal cultivation

    -Harvesting and/or packing of fruit and vegetable crops;

    -Pruning and trimming vines and trees;

    -General maintenance crop work;

    -Cultivating or propagating plants, fungi or their products or parts;

    -Immediate processing of plant products;

    -Maintaining animals for the purposes of selling them or their bodily produce, including natural increase;

    -Immediate processing of animal products including shearing, butchery, packing and tanning, and not including secondary processing;

    -Manufacturing dairy produce from raw material.

13. The term ‘work’ is defined in r.1.03 of the Regulations as meaning an activity that, in Australia, normally attracts remuneration.  The expression ‘3 months’ is not defined in the Regulations; however, Department guidelines (PAM 3) suggests that 3 months is taken to   mean 88 days which is the shortest possible combination of months in a calendar year.  Further, these guidelines specify that the work should be the equivalent of full-time work for that employer, that region and that industry.

14. From 1 December 2015 onwards, all specified work performed is required to have been paid in accordance with Australian workplace law.  Where an employee gets paid by the piece the Fair Work Ombudsman’s website provides guidance on piece rate and commission payments.  Relevantly, it states:

    An employee can be paid piece rates when:

    ·An award or registered agreement allows for piece rate payments

    ·The employee isn’t covered by an award or registered agreement and they get a pay rate based on how much work they do.

15. Based on the documentary evidence before it the Tribunal is satisfied that the applicant worked for 88 days picking blueberries in two locations in Victoria and Western Australia.  The Tribunal is satisfied he has worked for at least 3 months and completed work which meets the definition of ‘specified work’ in locations which are specified as ‘regional Australia’ whilst in Australia as the holder of a Working Holiday visa. 

16. The Tribunal is satisfied that the applicant meets cl.417.211(5)(a) and (b) of the Regulations.

    Was the applicant remunerated in accordance with relevant Australian legislation and awards?

17. According to the Department’s policy guidelines, “the remuneration verification is intended to be a relatively ‘light touch’ processing check rather than an exhaustive analysis of the applicant’s pay rate history.  It further states that “in the event an applicant clearly appears to have been underpaid, or not paid at all, a higher level of scrutiny may be warranted”.

18. The relevant award for the applicant’s work is the Horticulture Award 2010 which lists the minimum hourly rate of payment.  The award also allows for piece rate payments.

19. The applicant has produced payslips and payment summaries which correspond to the times that he claims he was employed with the abovementioned employers.  He has also provided bank records which include records of deposits which correspond to payments recorded in the payslips.  The PAYG summary for the period 1 January 2019 to 30 June 2019 shows a gross payment equivalent to payslips issued by Moondarra Blueberries Pty Ltd.

20. Having carefully considered the supporting documentation provided by the applicant and having regard to the applicable award and Departmental policy, the Tribunal is satisfied that the applicant was remunerated for the work he performed in accordance with relevant Australian legislation and awards.

21. The Tribunal is satisfied that the applicant meets cl. 417.211(5)(c) of the Regulations.

22. In view of the above findings, the applicant satisfies cl.417.211(5) of the Regulations.

23. 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

24. 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.

    Tania Flood

    
    

    Member