Ya-Jou (Migration)

[2021] AATA 3161

Ya-Jou (Migration) [2021] AATA 3161 (6 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Huang Ya-Jou

CASE NUMBER:  1907224

HOME AFFAIRS REFERENCE(S):          BCC2019/1064523

MEMBER:Susan Trotter

DATE:6 August 2021

PLACE OF DECISION:  Brisbane

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)(a) and (b) of Schedule 2 to the Regulations.

Statement made on 6 August 2021 at 7:39am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – equivalent of at least three months’ full-time work – deduction of two weeks’ leave – employment records provided upon review – variable duration of working days in the agricultural industry – decision under review remitted          
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 417.111, 417.211

CASES
G v MIBP [2018] FCA 1229
Re Drake (No. 2) (1978-1980) 2 ALD 634    

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 25 March 2019 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, a now 28-year-old citizen of Taiwan, applied for the visa on 4 March 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. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5)(b) because the delegate was not satisfied that the applicant had completed at least three months full-time work as required. In particular, the delegate noted that, in relation to the stated period of work from 8 October 2018 to 3 March 2019, the pay report provided indicated that they were not paid for pay periods ending 11 and 18 February 2019.

4. The applicant lodged an application for review of this decision with the Tribunal on 27 March 2019.

5. The Tribunal has received the following additional documentation from the applicant:

   (a)   Multiple bank statements;

   (b)  Working shift records;

   (c)   Payslips issued by MH Fresh Pty Ltd to the applicant from October 2018 to March 2019;

   (d)  Payslips issued by NBNE MC Pty Ltd to the applicant from February 2019 to March 2019;

   (e)  Photographs of the applicant’s worksite;

   (f)    Form 1263 – Working Holiday visa: Employment verification form – completed by the applicant;

   (g)  Detailed daily work records between 8 October 2018 and 3 March 2019; and

   (h)  Letter from Fiona Pang of MH Fresh Pty Ltd.

6. The applicant appeared before the Tribunal on 27 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal discussed with the applicant that it needs to be satisfied that the applicant carried out work in regional Australia and that the work she carried out added up to at least the equivalent of at least three months’ full-time work.

9. The applicant told the Tribunal at hearing that her understanding of why the Department had refused to grant the visa was because she had not met the requirement of 88 working days on the farm but she had worked more than 88 days.

10. The delegate noted that the applicant claimed she was employed by MH Fresh Pty Ltd from 8 October 2018 to 3 March 2019 but based on the pay reports provided by the applicant, she was not paid for the pay periods ending 11 and 18 February 2019.

11. The applicant agreed that she was away from work for two weeks for family reasons but still did the required time. She told the Tribunal that she, and the other workers, all worked the same sorts of hours and were paid for some of work based on the hours worked and paid for some of work based on how much was completed. The applicant’s evidence was that she was being paid the minimum rate required by the government.

12. The Tribunal asked the applicant how many hours a person would normally work on the farm where she worked picking and washing fruit; how long other people would normally work each day. The applicant said it was the same as her, six to eight hours per day, depending upon the weather and the amount of produce ready to be picked etc.

13. The applicant further told the Tribunal that some of her other colleagues have received visas on the basis of doing the same work she had done.

    ISSUES

14. The issue in this case is whether the applicant meets the prescribed requirements specified in cl417.211(5)(a) and (b) of Schedule 2 to the Regulations.

15. Subclauses 417.211(5)(a) and (b), as at the date of the applicant’s visa application, required, 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 three months full-time (or equivalent) as the holder of a Working Holiday visa. ‘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: Working Holiday Visa- Specified Work and Regional Australia.

16. Relevantly to this case “regional Australia” includes New South Wales postcodes (2456) and “specified work” includes:

    (7)(2) Plant and animal cultivation

    (a)   the harvesting and/or packing of fruit and vegetable crops;

    (b)   pruning and trimming vines and trees;

    (c)   general maintenance crop work;

    (d)   cultivating or propagating plants, fungi or their products or parts;

    (e)   immediate processing of plant products;

    (f)    maintaining animals for the purpose of selling them or their bodily produce, including natural increase;

    (g)   immediate processing of animal products including shearing, butchery, packing and tanning;

    (h)   manufacturing dairy produce from raw material.

17. The expression, ‘3 months’ is not defined in the Regulations; however Departmental guidelines (PAM 3) suggest as follows:

    Meaning of 3 months

    Under policy, three months is taken to mean 88 days, which is the shortest possible combination of months in a calendar year. 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. Generally, the Australian working week is 35 to 40 hours, comprising 7 to 8 hours of work each day. Individual employers cannot set a smaller period of time than the industry standard to satisfy the specified work requirement.

    In calculating the period of time for which the applicant has undertaken specified work, the type of employment relationship the applicant may have with their employer, including full-part time employment, casual employment or voluntary employment, is not as important as whether the relevant industry considers the period of work completed to be equivalent to full time for that industry. For example, if the applicant’s paid employment involved 2 weeks on and then 2 weeks off, and this is standard practice in the industry, the applicant would be considered to have worked for 4 weeks (28 days). If the employer is satisfied that the applicant has undertaken equivalent of full time work for that industry for the specified period, delegates may be satisfied that the applicant has undertaken full time work for the specified period.

    Applicants who work is equivalent to full time employment may count weekends in the 88 day period. However, if the applicant’s work is not equivalent to full employment, that is, part time or casual, they may only count the full days actually worked.

    If the applicant is employed by more than one employer at the same time, they may only count each calendar day of work completed once towards their 88 day specified work requirement.

    The shortest period that may be counted towards the specific work requirement is 1 day of full time work (for that industry). Applicants cannot count a long day of work as more than one day of specified work. For example, if the industry’s standard is 6 hours long, working a 12 hour day does not count as two days of specified work.

    An applicant may count sick days only during periods they were employed (that is, paid) and entitled to sick leave or covered by a workers compensation scheme. Days may also be counted in the applicant was employed (that is,paid) but was unable to work because of climatic conditions (for example, cyclone). In these situations, supporting evidence should be provided form the employer by the applicant. Casual workers who were prevented from working because of injury of climatic conditions (for example, cyclone) cannot count any time they were unable to work towards the 3 month period.

    Examples that meet the 3 month specified work requirement

    Weekends – The applicant works on a farm for 3 months, from Monday to Friday each week, with Saturday and Sunday off. In this instance, the weekends do not have to be “deducted” from the total 3 months, and the applicant is considered to have worked 7 days each week.

    …

18. The guidelines specify that the work should be the equivalent of full-time work for that employer, that region and that industry.

19. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake (No. 2) (1978-1980) 2 ALD 634. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations. The Courts have also held that these guidelines are incapable of being elevated into legally necessary or relevant considerations. There is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.

20. In the case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. Consistent with these authorities, the Tribunal considers the policy guidelines in PAM3 a relevant consideration to the extent not inconsistent with statutory intention to the contrary.

21. It follows that the issues for the Tribunal to determine are:

    (a)  Has the applicant carried out specified work in regional Australia? And, if so,

    (b)  Was the total period of the work carried out at least, or equivalent to, three months full-time work?

    CONSIDERATION

22. The applicant arrived in Australian on 7 March 2018 as the holder of a working holiday (Subclass 417). That visa ceased on 7 March 2019 and the applicant is currently the holder of a bridging visa in connection with the visa application the subject of the Tribunal’s review.

23. In her visa application, the applicant declared as follows:

    (a)  She has undertaken three months specified work in regional Australia in the industry of Agriculture, Forestry and Fishing.

    (b)  She worked as a packer for (MH Fresh Pty Ltd) ABN 20094765465 from 8 October 2018 to 3 March 2019.

24. A letter from MH Fresh Pty Ltd provided to the Tribunal, additional to the documentation provided to the Department, states as follows:

    1^st April 2019

    To whom it may concern,

    Ya-Hou Huang (Xuan) had been employed by MH FRESH PTY LTD as a picker/packer form 8^th October 2018 to 3^rd March 2019. She has worked the equivalent number of required days (88 total) over a period of more than three calendar months during her employment. During this period she has taken time off for family reasons from 1^st Feb 2019 to 17^th Feb 2019. She returned to work on 18^th February 2019 until 3^rd March 2019.

    Issue 1 - Has the applicant carried out the requisite specified work in regional Australia?

25. The Tribunal finds by reference to the evidence of the applicant and the documentary evidence before it that the applicant performed ‘specified work’ by carrying out work as a farm hand picking and washing fruit at Park Ridge, Queensland, postcode 4125. Although the Form 1263 has not been signed by the employer, the payslips, bank account statements and Payment Summary provided by the applicant all corroborate the applicant’s employment as claimed.

26. Having regard to the postcode of the nominated employer and business address, the Tribunal finds that the work was carried out within ‘regional Australia’ as that term is defined in the relevant instrument IMMI 17/018.

27. Therefore, the applicant satisfies cl.417.211(5)(a).

    Issue 2 – Is the total period of the work carried out at least, or equivalent to, three months full-time work?

28. The applicant submits that on the basis of her working on 93 days for the employer between 8 October 2018 and 3 March 2019 she satisfied the requirement to work three months.

29. The Tribunal notes that the period 8 October 2018 to 3 March 2019 is a period of four months and three weeks. The delegate’s conclusion that the applicant had not worked the required number of days seems to be based upon the applicant not working in the pay periods ending 11 February 2019 and 18 February 2019. The applicant agrees that she did not work those two weeks for family reasons, as is also noted in the employer’s letter dated 1 April 2019. However given the applicant worked in excess of four months, nearly five months, for the employer, the deduction of two weeks does not of itself mean that she has not worked the required period.

30. As regards whether the work was full-time, the Tribunal has had regard to the records of daily work provided by the applicant.

31. The applicant told the Tribunal that her hours of work each day varied depending upon weather conditions and also what fruit was ripe and available to pick. The Tribunal acknowledges the applicant’s evidence in this regard and accepts that the duration of a working day in the agricultural industry generally, including in the fruit picking industry, can vary each day impacted by a number of matters including weather conditions and the status of crops. The Tribunal accepts that a typical working day in this industry may not always be seven to eight hours. The Tribunal has taken these matters into account when considering this issue.

32. The information before the Tribunal indicates that the applicant worked varying hours on more than 88 days during the period 8 October 2018 to 3 March 2019 with her work hours on each day consistent with a pattern that was standard practice in the fruit picking/ fruit washing industry. Notably also, the applicant regularly and mostly worked at least five days per week with weekends (or two days) off each week. Without counting those days off the applicant has worked over 88 days with work on each day being of a length and nature consistent with the industry. With the addition of weekends (or the two days off each week), as is suggested by PAM3 would be included in the calculation in the applicant’s circumstances, she has worked significantly in excess of the required three months full-time.

33. On this basis of these matters, the Tribunal finds that the applicant performed specified work in regional Australia for a period of at least, or equivalent to, three months full-time works, with the nominated employer.

34. Therefore, the applicant satisfies cl.417.211(5)(b).

35. Consistent with paragraph 8.2 of the Tribunal President’s Direction – Conducting Migration and Refugee Reviews (30 June 2015) – which provides that, as a general rule, where the delegate has made an adverse decision on particular criteria or issues, the Tribunal should restrict its review to those matters, the Tribunal confined its review to consideration of cl.417.211(5)(a) and (b) of Schedule 2 to the Regulations.

36. 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

    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)(a) and (b) of Schedule 2 to the Regulations.

    Susan Trotter

    
    

    Member