Wu (Migration)

[2019] AATA 5368

Wu (Migration) [2019] AATA 5368 (5 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chuan-Yu Wu

CASE NUMBER:  1823099

DIBP REFERENCE(S):  BCC2018/1128087

MEMBER:Adrienne Millbank

DATE:5 August 2019

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 05 August 2019 at 12:30pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – remuneration in accordance with relevant Australian legislation and awards – fortnightly payslips – discrepancies with bank statements – decision under review affirmed

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 Immigration on 25 July 2018 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 is a 26 year old national of Taiwan who first arrived in Australia on 20 October 2017 on a Working Holiday (Subclass 417) visa granted on 15 May 2017.

3. The applicant applied for the visa on 9 March 2018. 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).

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(5), and therefore failed to meet cl.417.211 in its entirety.

5. The Delegate was not satisfied on the information provided that the applicant had carried out (whether on a full-time, part-time or casual basis) a period or periods of specified work in regional Australia as the holder of the visa as required by cl.417.211(5)(a); or that the applicant had been remunerated for the work in accordance with relevant Australian legislation and awards as required by cl.417.211(5)(c).

6. The applicant appeared before the Tribunal on 12 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. At the conclusion of the hearing the applicant requested more time to submit further documents. The Tribunal agreed to this request, and granted the applicant two weeks to provide any further submissions.

8. Further documents were received by the Tribunal on 22 July 2019.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant did three months equivalent full-time work in a specified occupation in regional Australia, and whether he was properly paid for the work in accordance with the relevant Australian legislation and awards.

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

11. 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 17/018.

12. The Tribunal asked the applicant at hearing whether he had read and understood the Delegate’s decision, a copy of which he had provided to the Tribunal. The applicant stated that he had received it but did not fully understand it. He confirmed that he had received and understood, on 13 April 2018, a letter from the Department requesting him to provide information to support his claims to have worked for at least 3 months full-time and to have been remunerated in accordance with the relevant Australian legislation and awards by his nominated employer, for the periods he had listed on his application form, further to the payslips, Form 1263, and E medical referral letter he had provided with his application. The applicant acknowledged that the letter listed evidence such as bank transaction statements for the specific work period claimed; employment contracts; a tax statement; and a superannuation statement.

13. The Tribunal discussed the Delegate’s decision with the applicant. The applicant confirmed that he had provided to the Tribunal copies of statements of transactions from his bank account over the period of his regional employment, but that these did not show regular deposits of pay from his employers. The Tribunal asked the applicant why he not provided a copy of work contracts with his two listed regional employers. The applicant stated that while he worked for Midfield Meats in Warrnambool throughout the 4 month period of his regional employment, he was in fact employed by two different labour hire agencies, JHP Canberra, which has since been de-registered, and TMS ACT Pty Ltd. He stated that he had signed a work contract or work contracts, but did not receive a copy of a work contract from his employer.

14. The Tribunal acknowledged that the applicant had provided to the Tribunal copies of his fortnightly payslips covering the period 26 October 2017 to 31 January 2018, and statements of transactions from his bank account covering the same period. The Tribunal acknowledged that the payslips indicated that the applicant was paid an hourly rate, at the minimum award level. The Tribunal put to the applicant that his bank statements however did not show that his pay as shown on the payslips was deposited on a fortnightly basis into his bank account. Several deposits appeared from his stated employers, of around $1,200, but these deposits did not correlate with the time of issue of his payslips, or the amount shown on his payslips.

15. The applicant confirmed that he was not paid in cash, and that all his earnings from his regional employer were deposited into his bank account. He stated that he queried the first amount, which was short of his expectations, and was advised that deductions including an equipment security bond had been taken out of his pay. He stated that he was further advised that payments could be delayed because of things like public holidays. The Tribunal put to the applicant that even if deductions and public holidays were allowed for, it appeared that he had not been paid on a regular basis for his regional work, and that he had not been paid the amount shown on his payslips. The applicant then stated that he has lodged a complaint about his pay for his regional work with the Fair Work Ombudsman, and that he has forwarded his payslips and bank statements to this agency.

16. The applicant provided evidence in the form of copies of paperwork for health tests, that he was employed as a meat packer in Warrnambool in regional Australia. He described his meat-packing work in some detail, and stated that he worked there for 4 months. No employment contract was provided, however, and as noted, the applicant’s bank statements do not show that he received regular payments over this claimed period of employment which correlated with his payslips.

17. Following the hearing, on 22 July 2019, as noted, the applicant provided further documents to the Tribunal, comprising a copy of messages with another person unaccompanied by translation, and a note addressed to the Tribunal in which he advises, regarding the issue of his payment:

    Judge, I asked the Midfield Meat Factory today. The company agent told me that my agent at the time of 30/10/2017 - 8/3/2018 was called KAT. The company had closed down and they destroyed all the information.

    I am sorry that I am unable to provide you with any information at this time. Thank you, the judge, for giving me the opportunity to prove it! I like Australia to give me a feeling of kindness. I will travel back here after I leave! Thank you Australia for giving me good memories!

18. ‘Specified work’ is defined in IMMI 17/018 includes, at paragraph 7(2)(g), ‘immediate processing of animal products including shearing, butchery, packing and tanning’. The Tribunal accepts on the evidence provided including his testimony at hearing that the applicant did specified work in regional Australia.

19. While the applicant’s payslips indicate that he was paid the minimum wage at the relevant hourly rate, discrepancies between the money deposited in the applicant’s bank account and the amounts shown on the pay slips suggest that he was underpaid. The Tribunal has had regard to the applicant’s explanations regarding deductions for a security bond and late payments because of public holidays, but is not satisfied on the evidence provided that the applicant was remunerated according to the legislated requirement for three months equivalent full time work. The Tribunal therefore is not satisfied that the applicant meets cl.417.211(5)(c).

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

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

    DECISION

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

    Adrienne Millbank

    
    

    Member