1507064 (Migration) [2015] AATA 3590 (6 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Miss Jiseon Bae
CASE NUMBER:	1507064
DIBP REFERENCE(S):	BCC2015/751267 
MEMBER:	Alison Mercer
DATE:	6 November 2015
PLACE OF DECISION:	Melbourne
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 06 November 2015 at 1:47pm
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 6 May 2015 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 9 March 2015. 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 delegate found that the applicant had not completed at least 3 months of specified work in regional Australia.  In reaching this conclusion, the delegate found that the payslips provided by the applicant indicated that, for the majority of the 3 month period claimed, she worked on average less than 4 hours per day.  The delegate noted that a full day’s work was defined in the Department’s policy as working the minimum number of hours considered to be a standard working day by the particular industry in which the applicant worked, but generally, the Australian working week was considered to be 35 to 40 hours per week, or 7 to 8 hours per day.  The delegate noted that individual employers could not opt out of this.
4.  	The Tribunal received a review application from the applicant on 25 May 2015. It was accompanied by a copy of the delegate’s decision and various documents in support of the applicant’s case, including her form 1263 (in which she gave her employment details as having worked for Propick Pty Ltd in Bundaberg, Queensland, in which she stated that she picked and packaged tomatoes for 88 days between 28 November 2014 and 6 March 2015), an employment reference from Propick Pty Ltd, a job description indicating that the applicant worked on a casual basis 1 to 7 hours per day packing and sorting tomatoes and sweet potatoes, a table containing the hours worked per day throughout the relevant period by the applicant, the applicant’s PAYG statement summary for 2014/15 from Propick Pty Ltd, copies of her bank statement showing salary payments in the relevant period, evidence of the applicant’s rental payments in Bundaberg and of her travel to and from regional Queensland.
5.  	On 14 August 2015, the Tribunal wrote to the applicant to invite her to a hearing on 23 September 2015 to present arguments and evidence in support of her case.
6.  	The applicant appeared before the Tribunal on 23 September 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
7.  	Following the hearing, the Tribunal wrote to the applicant’s employer with several queries and received responses by email on 23 and 24 September 2015.
8.  	For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
9.  	The issue in this case is whether the applicant meets cl.417.211(5). 
Has the applicant carried out the requisite specified work in regional Australia?
10.  	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 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 08/048.
11.  	From the documentary evidence provided, the Tribunal is satisfied that the applicant was employed on a casual basis by Propick Pty Ltd in Bundaberg, Queensland to pick and sort tomatoes and sweet potatoes between 28 November 2014 and 6 March 2015 (a total of 88 days). The Tribunal is further satisfied that Bundaberg (postcode 4670) is specified as a regional area of Australia in IMMI 08/048, and that the work undertaken by the applicant is one of the types of specified work listed in IMMI 08/048, being plant cultivation/the harvesting and/or packing of fruit and vegetable crops.
12.  	The issue is whether the specified work meets the requirements of cl.417.211(5) and IMMI 08/048. The Tribunal notes that the hours of work required to be undertaken by an applicant is not specified in either the Regulations or the instrument.  The Department’s policy guidelines (referred to by the delegate) provide as follows [Tribunal emphasis added]: 
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, consisting of 7 to 8 hours of work each day. Individual employers can not 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 work 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 the 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 whose 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 time 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 specified 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 day 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 where they were employed (that is, paid) and entitled to sick leave or covered by a workers compensation scheme. Days may also be counted if 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 from the employer by the applicant. Casual workers who were prevented from working because of injury or 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	Examples that do not 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.	Weekends - The applicant works on a farm 3 days a week for 3 months. Five days is considered full time work by the industry. Weekends cannot be counted, so the applicant must work a total of 88 days.	
Cyclical work - The applicant completes 3 months of specified work in regular monthly cycles, working 21 consecutive days, followed by a period of 7 days off. This monthly cycle is the industry standard for the type of work.	Short days - The applicant completes 88 days of specified work, but only works 5 hours a day. The industry considers 7 hours to be a standard "full time" day. None of this work can be counted.	
Shift work - The applicant is employed to harvest oysters for 3 months, and under the employment contract is only required to work every second week, and has every other week off.	Work done on another visa type - As the holder of a Student visa, the applicant completes 3 months of specified work during their summer break. Even if they have previously held a first Working Holiday visa, the work done while on the Student visa cannot be counted toward the 3 month requirement.	
Blocks of work - The applicant completes 60 days of specified work, followed by a period of travel for 2 months. They then complete another 28 days of specified work.	Couldn't work - The applicant picks bananas for 80 days on a casual basis, but cannot find more work as there is a cyclone and their first Working Holiday visa ceases.	
 
13.  	In Re Drake No 2 the Administrative Appeals Tribunal (AAT) was exercising a discretionary power (deportation). Justice Brennan, sitting as the President of that Tribunal, stated:

In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy.  The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.  
14.  	While the Tribunal cannot deprive itself of the freedom to give policy no weight when exercising a discretionary power in a particular case, there are substantial reasons which favour cautious and sparing departure from Ministerial policy, particularly if Parliament had scrutinised and approved the policy. As Brennan J stated in Re Drake No 2:

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.
15.  	However, the Tribunal must not determine an issue simply by resolving whether or not it conforms to policy. The Tribunal is not entitled “to abdicate its function of determining a correct or preferable decision in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be”. The application of policy assumes that, in the absence of any reason to the contrary, its standards and values are an appropriate guide in the particular case.  But where the policy is more narrow or restrictive than the legislation, it will not be a lawful policy and reliance on it is likely to result in a jurisdictional error.  In this case, the Tribunal has had regard to the above policy but only to the extent that it is consistent with the terms of cl.417.211(5) in determining whether as a matter of fact, the applicant has carried out specified work in regional Australia for a total period of at least 3 months.
16.  	The applicant’s employer originally certified that the applicant worked 1 to 7 hours per day for 88 days on a casual basis for Propick Pty Ltd.  The applicant’s work records showing her actual hours per day and per fortnight indicate that the lowest number of hours she worked in a day was 1.98 and the highest was 6.  The figures logged for her indicate that she typically worked 2.5 to 5 hours per day for the days per week that she worked.
17.  	The applicant told the Tribunal at the hearing that she went to work at Propick Pty Ltd after a friend told her about it.  One of the owners there, Candice Lee, was Korean. The employers did not mention the hours per day to her but told her it would be part-time work.  The applicant said that the girls working there mostly did packing work, while the male workers did most of the picking work.  The applicant said that she did both types of work but the picking work was physically demanding so she asked to do more of the packing work.  
18.  	In relation to her hours of work, the applicant said that initially, they were not giving her enough hours and she asked for more hours, but was told that she was not experienced enough.  As she gained more experience, she was given more hours per day and per week. She told the Tribunal that the weather in Bundaberg when she started work there was quite bad, and some days they could not work because of the rain.  
19.  	In relation to what was required to get a further subclass 417 visa, the applicant said that she knew that she had to work for 88 days.  She was not aware that she had to work 35 hours per week, and if she had been aware of this before the Department’s decision, she would have asked to work more hours.  The applicant said that Propick Pty Ltd gave full time work to male workers, and that she did ask about this but was initially told she was not experienced enough.  If she had been aware of the issue about working 7 to 8 hours a day or 35 hours per week, she would have worked more hours and/or days.  Prior to the Department’s decision, she understood she had satisfied the requirements to get a second subclass 417 visa because she had worked for Propick Pty Ltd for 88 days.  When she got the Department’s decision, she contacted her employer but they said they only ever had a few full-time positions available at any given time.  The applicant said that the Department’s decision was hard for her to understand because there were other people working with her with the same or similar hours of work, yet they were successful in being granted second subclass 417 visas by the Department.  
20.  	The Tribunal discussed with the applicant its preliminary view that she did not appear to have worked full-time hours according to the Department’s guidelines on this issue.  However, it indicated that it would contact Candice Lee and ask her to clarify whether the industry standard in that industry was less than a 7 to 8 hour day.  If the response was negative, the Tribunal would provide a copy of that response to the applicant for her response prior to the Tribunal making its final decision.  If the response was positive, it would still be a matter for the Tribunal to determine whether it was reasonable to accept that the industry in which the applicant worked had a full-time working day that was less than 7 to 8 days and if so, whether the applicant worked full-time hours by the standards of that industry.
21.  	The applicant told the Tribunal that she was currently working as a waitress in a restaurant and hoped to undertake studies in Aged Care in Australia in future.
22.  	On 23 September 2015, the Tribunal sent an email to the applicant’s employer, Ms Candice Lee of Propick Pty Ltd, summarising the requirements of cl.417.211(5) and the Department’s policy about full-time work and noting that there was no doubt that the applicant had worked for Propick Pty Ltd for 88 days but that the issue for the Tribunal is whether her hours amounted to full-time work, given that her certified roster showed she generally worked less than 6 hours per day for the duration of her employment with Propick Pty Ltd.  The Tribunal stated that it would be assisted to receive information by 7 October 2015 indicating whether:
•	a standard full-time day in the fruit/vegetable industry in which Propick Pty Ltd operated was less than 7 to 8 hours per day, and if so, on what basis this was the case; and
•	whether the applicant was considered by Propick Pty Ltd to have worked on a full-time basis (for the industry) between 28 November 2014 and 6 March 2015.
23.  	On 23 September 2015, the Tribunal received an email response from Ms Lee in which she stated that the applicant definitely worked for Propick Pty Ltd and was a hard worker.  Ms Lee asked that the applicant be allowed to stay in Australia for a further year and indicated that she had already paid tax to the ATO on the applicant’s behalf.
24.  	On the same date, the Tribunal sent a further email to Ms Lee emphasising that the issue before it was whether the applicant had worked for 88 days for Propick Pty Ltd on a full-time basis, and thus it needed information on whether a standard full-time day in the fruit/vegetable industry in which Propick Pty Ltd operated was less than 7 to 8 hours per day, and if so, on what basis this was the case, and whether Propick Pty Ltd considered that the applicant worked for 88 days on a full time basis.
25.  	On 24 September 2015, the Tribunal received an email response from Ms Lee in which she stated that if the weather was good, employees worked more than 12 hours per day, but if it was rainy or cloudy, they worked 1 to 2 hours per day, as farming was always dependent on the weather.  She further stated that this was totally different to office workers and that it was the same as full-time work.
26.  	On 6 October 2015, the Tribunal sent the applicant a letter via email inviting her to comment on information it had located on a website (http:///www.travellers.com.au) entitled ‘Harvest Work/Fruit Picking – Your Rights at Work,’ which indicated that the fruit and vegetable picking work offered by Propick Pty Ltd would come under the Horticulture Award 2010, which provided that a full-time employee in this industry would normally work 152 hours over 4 weeks, or 38 hours per week, or 7.6 hours per day.  The Tribunal indicated that it considered that this information was relevant to the applicant’s review application because, if the Tribunal accepted that (despite Ms Lee’s suggestion) a standard working week in the fruit and vegetable picking industry was 38 hours per week, and therefore a standard working day was 7.6 hours, it would have to find that the applicant’s 88 days of work at Propick Pty Ltd was not undertaken on a full-time basis.  This would mean that it did not fall within the Department’s policy guidelines as constituting full-time work. The Tribunal advised that if it accepted that it was appropriate to apply the Department policy guidelines in her case, then it would have to find that the applicant did not meet cl.417.211(5), and this would be a reason to affirm the decision under review.  The applicant was invited to provide comments or a response in writing by 20 October 2015.
27.  	On 19 October 2015, the applicant forwarded by email to the Tribunal a letter from Mr James Lee, owner of Propick Pty Ltd and Tomato Backpackers.  Mr Lee stated that he provided the following in support of the applicant’s application for a second subclass 417 visa:
[The applicant] worked a total of 303 hours in 88 days, an average of 3.44 hours per work day.  While this may not technically meet the 7.6 hours per day as suggested by the Horticulture Award 2010, I do believe that there are certain circumstances in this case that might help explain the short-fall.
1. While traditional workplaces require employees to be ‘on site’ in time for the commencement of their work schedules, the nature of the backpacker’s farm work actually necessitates that all workers be ‘on the job’ (ie ready for work and at the assigned pick-up point at the front office) no closer [sic] than 30 minutes before ‘starting time’ every day so that team members, appropriate individual safety wear can be checked and appropriate work-team members be finally allocated to specific farms.  The end-of-day meetings also require workers to remain ‘on site’ for at least 30 minutes each day to complete their work-day timesheets, sign off and/or team discussions concerning the quality of work performance for the day.  Together these ‘on-site’ requirements can add 1 hour per day to the backpackers’ work schedule.  That this hour is currently unpaid yet required in this industry might well be a matter that will need discussion and review by an ethics committee in the near future, but for now it is considered an acceptable practice by those in the industry and should, I believe, therefore be taken into consideration when calculating the hours worked per day
2. For many business (and the Australian Tax Office) the assignment of a meeting point outside the business office is often considered to be the ‘at work’ starting point from which all business-travel (site-to-site travel) is measured and claimed.  This is the case for the backpackers working in Bundaberg.  As explained in point 1 above, they are required to be at the ‘normal work-place starting point’ no closer [sic] than 30 minutes before travelling by company transport to their alternate workplaces for the day.  It is not uncommon in the Bundaberg region for workers to travel for 1 hour between the main office gates and the allocated farms every morning and to travel for another hour from their day’s workplace back to the main office before being released from their duties for the day.  It could therefore be argued that if such office-to-workplace travel is claimable under Australian tax law, then office-to-farm travel needs to be taken into consideration when calculating hours per day when employees are accountable to their employers and considered to be ‘at work.’  For [the applicant] this travel requirement could easily add 2 hours per day to her work schedule.
3. In the picking and packing side of the farm industry, it is not uncommon for at least one or two stand-downs to occur in any two days due to equipment breakage, blackouts, or bad weather.  Stand-downs are so common that specific clauses in insurance policies protect Australian farmers against them.  If not for the stand-down insurance clauses, farmers could lose $1,000s per day. Unfortunately, yet in line with the Australian ‘Fair Work’ standards, workers employed on farms as ‘pickers’ and ‘packers’ are not paid during ‘stand-downs’, even if those ‘stand-downs’ occur during assigned work hours and last only 1 hour.  It is therefore respectfully suggested that at least 45 minutes per day be allocated to the stand-down times when considering [the applicant’s] time worked.
4. Seasonal work is exactly that: seasonal.  During busy times there is a lot of work and those on work visas can work many hours.  However, during quiet seasons, which include weeks when farmers are necessarily waiting to the last of their crop to be fully ready for harvest, available work can be scarce.  Last year (2014) was particularly frustrating because of seasonal factors especially those affecting sweet potato crops and this is reflected in [the applicant’s] payslips.
5. Hours lost by public holidays are also not reflected in payslips and it seems that the December-January period and the Easter season has an abundance of public holidays.  In 2014, there were five public holidays between April and the end of June and another five between August and the end of December.  These are also ‘no work’ days.
… We at Tomato Backpackers Bundaberg are very proud of the role we play in welcoming international visitors, like [the applicant], who are in Queensland on working holiday visas.  We do our best to provide opportunities for backpackers to experience the ‘Great Australian Work Ethic’ of a ‘fair day’s wage for a fair day’s work.’  We recognise that not everything is perfect but we do our best to make all things fair.  Our workers are required to be ‘at work and on site’ 30 minutes prior to leaving the front office for their allocated farms.  Moreover, they are required to remain ‘on site’ for up to 30 minutes at the end of each day.  Travel between the front office and farm, and the return journey, can be anything between 1 to 1.5 hours each way each day. Stand-downs do account for a lot of ‘unidentified work times’ and the nature of seasonal work does make work scarce at particular times of the year.
All this means that the hours worked as indicated on the workers’ payslips are actually an under-calculation and not a true representation of the hours during which they, as ‘pickers and packers,’ are accountable to our company or to the farms on which they work.  I respectfully ask, therefore, for all these factors to be taken into consideration when considering the applicant for a second subclass 417 visa…
28.  	The Tribunal has considered the available information carefully and has formed the view that it is appropriate to assess the applicant’s work hours at Propick Pty Ltd during the relevant period averaged over that period and is satisfied that, on that basis, she worked approximately 3.44 hours per day on a casual basis.  
29.  	The applicant’s evidence was that if she had been aware of the need to work more hours per day, she would have asked for more hours, and that other (mainly male) workers for Propick Pty Ltd did work more hours per day than she did.  She also stated that to her knowledge, workers with the same or similar amounts of hours per day as her were granted second subclass 417 visas by the Department.  The Tribunal is unable to verify this is the case but accepts that it is likely.
30.  	However, the relevant Award, the Horticulture Award 2010, indicates that full-time hours in this industry are approximately 7.6 hours per day. The applicant’s average hours per day of 3.44 fall short of this.
31.  	In support of the applicant’s case, her former employer Propick Pty Ltd has suggested that the applicant ought to be considered to have worked more than 3.44 hours per day (as her records show) on the basis that her recorded hours of work do not include:
•	travel time (to and from the central office and to and from the central office to the allocated farm) estimated at 1 to 1.5 hours per day;
•	‘briefing’ time before commencement of work and after completion of work, estimated at 1 hour per day;
•	stand-downs due to bad weather (estimated at 45 minutes per day on average);
•	the fact that there are fewer hours of work in the quiet season(s); and
•	public holidays.
32.  	The Tribunal is not satisfied that there is any justification for counting public holidays on which a worker did not in fact work as hours towards the 3 month calculation for the purposes of a subclass 417 visa application.  
33.  	While there appears some basis for stating that travel time and ‘briefing’ time ought to be considered, the Tribunal observes that as these currently appear not be recorded or paid by the employer, they are virtually impossible to verify.  The same applies to periods in which employees might be ‘stood down’ due to bad weather. 
34.  	The Tribunal accepts that the average working hours per day in this field may be shorter than 7.6 hours in the ‘quiet’ (or quieter) season(s).  However, it is unable to be satisfied that a working days of 3.44 (less than half the hours in a ‘normal’ working day under the Horticulture Award 2010) constitutes a full-time day even in the quiet season, particularly since the applicant’s evidence was that other people she worked with were working more hours than she was.  This was not addressed or disputed by her employer.
35.  	The Tribunal has some disquiet about this case, as it accepts that the applicant was truthful in her evidence, and that she believed that she had done what was required of her in order to meet the 3 month requirement, and that it appears that others who undertook similar hours to her were successful in obtaining second subclass 417 visas (although the Tribunal cannot make any definitive finding on this issue). The Tribunal is also concerned that the system by which back packers provide casual labour in regional areas for picking and packing is vulnerable to exploitation, given the applicant’s employer’s evidence that they effectively work longer hours than they are paid for or that are recorded for them. 
36.  	The Tribunal acknowledges that it is the legitimate aim of the Department’s policy to ensure integrity in this visa category.
37.  	However, in this case, the Tribunal is required to be satisfied according to the terms of cl.417.211(5), which requires that the applicant carried out specified work in regional Australia for a total period of at least 3 months.  As previously noted, neither the Act, Regulations or the relevant instrument setting out what constitutes ‘specified work’ require that the work undertaken must have been full-time, or specify what hours had to be worked to meet cl.417.211(5).  While the Department’s PAM3 Guidelines state that only full-time work should be counted, and give various examples of this, the Tribunal is not satisfied that they should be given significant weight in this case.  Having reviewed them, and although acknowledging the desirability for consistency of decision-making, the Tribunal considers that the PAM3 Guidelines in this area are significantly more prescriptive than cl.417.211(5) itself, such that considering whether the applicant completed 88 days of specified work on a full-time basis would be a jurisdictional error.
38.  	Accordingly, the Tribunal considers that the question to be answered is whether the applicant carried out specified work in regional Australia for a total period of at least 3 months.  It is satisfied from the evidence provided that she did carry out specified work in regional Australia for a total period of at least 3 months, notwithstanding the fact that it appears that her working hours per day may have been less than the industry standard.  In the specific circumstances of this case, the Tribunal considers that the correct and preferable decision is that the applicant meets the test in cl.417.211(5).
39.  	As a result, the Tribunal considers that it is the correct and preferable decision to remit the matter to the Department for reconsideration on this basis.  
decision
40.  	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.

Alison Mercer
Member