Haentjens (Migration)

[2021] AATA 2868

Haentjens (Migration) [2021] AATA 2868 (18 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Noemie Margaux Dominique Haentjens

CASE NUMBER:  1905432

HOME AFFAIRS REFERENCE(S):          BCC2018/5263853

MEMBER:Nicole Burns

DATE:18 June 2021

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 18 June 2021 at 5:11pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 (Working Holiday) – previous specified work in regional Australia – meat packer – secondary processing’ – supermarket – no butcher in town – work undertaken falls within immediate processing of animal products including butchery and packing – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 417.211(5)

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 15 February 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 28-year-old French national, applied for the visa on 25 November 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 (Cth) (the Regulations). Relevant to this case, they include cl 417.211(5).

3. The applicant arrived in Australia on 2 December 2017 holding a Subclass 417 visa that ceased on 2 December 2018.  In her application for the second Subclass 417 (Working Holiday) visa, she indicated that she undertook specified work from 25 January 2018 to 10 September 2018 at FoodWorks in Lorne, postcode 3232.  She indicated she undertook work in the ‘plant and animal cultivation industry.’  She also provided payslips, a PAYG summary and bank transaction statements for the specified work claimed.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5) because he was not satisfied that she had carried out a period of ‘specified work’ whilst the holder of a Subclass 417 visa previously.

5. The applicant appeared before the Tribunal via video link on 17 June 2021 to give evidence and present arguments about the issues in her case. The Tribunal also received oral evidence from her former employer, Mr Daniel Lau, manager at FoodWorks, Lorne.

6. The applicant’s representative also participated in the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant carried out the requisite specified work in regional Australia whilst the holder of a Subclass 417 visa.

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

9. 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 three 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.

10. ‘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 LIN 20/103 dated 4 March 2020: instrument LIN 20/182 repeals all earlier instruments however provisions in that instrument mean that LIN 20/103 continues to apply to an application for a Subclass 417 visa made but not finally determined prior to the commencement of LIN 20/182 on 18 August 2020.

11. In this case, the applicant claims to have been employed at FoodWorks in Lorne from 25 January 2018 to 10 September 2018.  In completing Form 1263 at the visa application stage, she stated she worked in the supermarket industry with the job title of ‘Meat Packer’ and listed her description of duties as: working in butcher’s department; packing and wrapping meat products; cutting and preparing meat products; shelf stacking; and quality control. This information was reflected in the WHM 417 Specified Work Questionnaire completed by the applicant who advised she completed her specified work in the ‘plant and animal cultivation industry’.

12. However the delegate determined her work involving the processing of meat is considered as ‘secondary processing’ given it deals with processing carcases which come from the immediate processing of animal products (i.e. abattoirs) into consumer‑friendly products.  As such, the delegate was not satisfied the work fell under ‘immediate processing of animal products including shearing, butchery, packing and tanning’ as per (9) in the relevant instrument (IMMI 17/018) in place at the time.  The delegate found therefore that the applicant’s work was not of a kind specified by the Minister in an instrument in writing as required.

13. On review, the applicant provided an initial written statement to the Tribunal in which she confirms that she worked at FoodWorks in Lorne in the meat section and was told by her employer that the position was eligible for ‘farm workdays’.  She became responsible for the entire meat section which included ‘specialised slaughtering tasks, cutting standard of meat for marketing, making sausage or wrapping meats’.  At hearing, she confirmed that what she meant by ‘specialised slaughtering tasks’ was the cutting and processing of meat provided by abattoirs: they did not slaughter animals at FoodWorks, Lorne.  She attributed the confusion to the translation of her written statement in French to English with the help of a friend at the time.

14. Prior to the hearing, the applicant provided a further written submission in which she details her work at FoodWorks in the relevant period.  She submitted that although she did not work in an abattoir slaughtering animals or carrying carcasses, she performed over 88 days of work in regional Australia butchering, processing and packaging meat to the same hygienic standards and this meat was then supplied on both retail and wholesale bases and therefore this qualifies for specified work.  She explained that Lorne FoodWorks is not a usual metropolitan supermarket given there is no butcher in Lorne and therefore the work performed in their meat room – where she worked – is consistent with the work usually performed by a butcher or meat process worker.  She added that FoodWorks does not receive meat which is already packaged into consumer-friendly or saleable products.  She described the work she performed as follows:

    The work I performed included receiving larger portions of meat from an abattoir which are then processed (by cutting with knives and machine saws) into smaller consumer friendly products that are then packaged for sale. The processing of the meat also includes removal of fat and other undesirable sections of the larger meat portions when processing into smaller consumer friendly products. In my submission, the work which I performed clearly satisfies the definitions of ‘butchery’ and ‘packaging’.

15. The applicant argued further that the work she performed in the meat room at FoodWorks can be considered ‘immediate processing’ of animal products.  This is because, she submits, whether such processing of animal products occurs at an abattoir immediately after slaughter or at a subsequent location (such as FoodWorks) is immaterial given it still involves the same work: that is, breaking down of animal carcases into smaller consumer‑friendly products, which is the ‘immediate processing’ of an animal.  To support her contentions in this respect, the applicant provided a letter from the current FoodWorks manager which sets out a job description for working in their meat room and two current job advertisements for meat process workers at an abattoir in Warrnambool, which detail much of the same work the applicant was performing at FoodWorks such as slicing, bone removal and packaging.

16. Additionally the applicant disputed that the tasks she performed at FoodWorks fall within the definition of ‘retail of dairy or butchery products’ (which are not considered as an eligible form of ‘specified work’ in the legislative instrument in place at the visa application stage) because:

    ·     She was not selling goods to the public, noting the Oxford dictionary definition of ‘retail’ is ‘the selling of goods to the public, usually through shops’.  Her work was the processing of meat and butchery products.  The fact these may be sold to the public at a later stage is immaterial and unrelated to her work, she submits.

    ·     FoodWorks did not only sell meat to the public: it sold and supplied meat to various restaurants and cafes in and around Lorne and the supply of the meat (various cuts of meat, burgers, sausages) was not done on a retail basis as it was not supplied to the public.  Rather it was supplied to these businesses on a wholesale basis.  These businesses would then further cut, process and cook the meat before it was sold to customers on a retail basis.

17. The applicant submitted that given significant portions of the meat the applicant butchered and packaged was not supplied in a retail environment but in a wholesale environment, the work performed did not consist of retail butchery products.  It follows that the work constituted ‘immediate processing’ of animal products, not secondary/retail processing.

18. The applicant also provided photographs of her at work at FoodWorks, Lorne, and a report from FoodWorks, Lorne, showing superannuation payments to the applicant from 4 February 2018 to 20 January 2019.

19. At hearing, the applicant described her role and specific tasks undertaken when she worked in the meat room at FoodWorks, Lorne, in 2018 which included organising, packing, cutting and processing (for example, into burgers or mince) of large meat pieces received from the abattoirs to be sold at the supermarket, local restaurants and other wholesalers.  The applicant told the Tribunal that she considered her work to include immediate processing of animal products because the meat received directly from the abattoirs was often not packaged; she had to cut, break bones (sometimes) and pack it herself, and at times process it further.

20. Mr Lau, the current manager at FoodWorks, Lorne, gave oral evidence to the Tribunal. He said he has held the position for eight years and therefore was the applicant’s manager at the time she worked there.  He confirmed the applicant worked in the meat room for 120 days in the relevant period, noting she returned some months later after travelling and then worked on the registries at the supermarket.  He detailed the nature of her work which included receiving then cutting, processing and packaging large pieces of meat delivered from the abattoirs to be sold at the supermarket as well as wholesalers and restaurants, a general store and bakeries.  He said he considered the work included immediate processing of animal products.  He confirmed there is no butcher in Lorne.

21. At hearing, the representative noted that whilst the legislative instrument stipulates what kind of work can be eligible, the terms ‘immediate’ and ‘secondary’ processing do not appear to be defined in the Act.  When not expressly made clear, and given Mr Lau’s oral evidence that he considered the work tasks performed by the applicant included immediate processing of animal products, the Tribunal should find that the work undertaken by the applicant at the meat room at FoodWorks, Lorne, falls within the definition ‘immediate processing of animal products’ including butchery and packaging, he argued.  He emphasised that the FoodWorks in Lorne does not operate like a metropolitan supermarket where meat products are simply brought in and placed on the shelf: processing of meat occurs, including turning meat into burgers and mince (for example) which is sold to restaurants and wholesalers.  Although a somewhat unique situation, such works fall within the definition of immediate processing of animal products, he reiterated.

22. Based on the evidence provided to the Department including copies of her payslips, a PAYG payment summary, a 2017–2018 tax return summary, and bank statements covering the relevant period employed at FoodWorks, Lorne, the Tribunal is satisfied the applicant worked in the meat section at FoodWorks, Lorne, from 25 January 2018 to 10 September 2018, which is at least three months’ full-time work.  Based on Departmental records, the Tribunal is satisfied she undertook this work whilst the holder of a Subclass 417 visa.  Additionally the Tribunal accepts the applicant worked in postcode 3232 which is in regional Australia as set out in LIN 20/103.

23. Further, the Tribunal is satisfied the applicant was remunerated in accordance with relevant Australian legalisation and awards, confirmed by the manager at FoodWorks, Lorne, Mr Lau, in his oral evidence to the Tribunal and based on evidence provided such as payslips, a PAYG summary and bank statements. 

24. The remaining issue in this case is whether the work undertaken by the applicant at the meat room at FoodWorks, Lorne, can be considered ‘specified work’ as set out in the relevant instrument. The kinds of work listed under ‘plant and animal cultivation’ in LIN 20/103 includes (at (g)) ‘immediate processing of animal products including shearing, butchery, packing and tanning, and not including secondary processing’.

25. The Tribunal has considered the written and oral submissions of the applicant that the work she undertook at FoodWorks, Lorne, in the relevant period included immediate processing of animal products including butchery and packing.  This was confirmed by her former employer in his oral evidence to the Tribunal.  The Tribunal found both the applicant and Mr Lau to be credible.  It accepts that FoodWorks, Lorne, is a supermarket however given the environment in which it operates – as the only meat processing place in the area – and the tasks undertaken by the applicant including cutting and processing of large animal pieces (which are similar to those listed in meat processing worker job descriptions), the Tribunal considers the work undertaken by the applicant does come within the description of the immediate processing of animal products including butchery and packing.  Based on the evidence before it, the Tribunal is satisfied that at the time of application, the applicant had carried out a period of specified work (as set out in LIN 20/103) in regional Australia.

26. Accordingly the Tribunal is satisfied on the evidence before it that the applicant carried out specified work in regional Australia for a total period of at least three months as the holder of a Working Holiday visa.  She therefore satisfies cl 417.211(5).

27. Given this finding, 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

28. 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.

    Nicole Burns

    
    

    Member