Mcloughlin (Migration)

[2021] AATA 3471

Mcloughlin (Migration) [2021] AATA 3471 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Bernadette Mcloughlin

CASE NUMBER:  2001301

HOME AFFAIRS REFERENCE(S):          BCC2019/6572020

MEMBER:Nicole Burns

DATE:25 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 25 August 2021 at 2:53pm

CATCHWORDS

MIGRATION – Working Holiday (Temporary) (Class TZ) visa – subclass 417 Visa –specified regional work requirements not met – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 417.111, 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 20 January 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, a 32-year-old Irish national, applied for the visa on 10 December 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). Relevant to this case, they include cl 417.211(5).

3. The applicant arrived in Australia on 25 January 2019 holding a Subclass 417 visa that ceased on 25 January 2020.  In her application for the second Subclass 417 (Working Holiday) visa, she indicated that she undertook specified work from 5 June 2019 to 4 December 2019 at Patties Foods Pty Ltd (Patties Foods), ABN:6007157182, postcode 3875.  The applicant submitted to the Department copies of payslips and bank transaction statements covering the specified work period. 

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5) because they were not satisfied the work the applicant had undertaken in the relevant period was ‘specified’ work as per the relevant instrument.  

5. The applicant gave evidence and presented arguments about the issues in her case to the Tribunal on 25 August 2021 via teleconference. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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?

8. 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.

9. ‘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 savings 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.

10. In this case the applicant claims to have been employed at Patties Foods, Bairnsdale from 5 June 2019 to 4 December 2019.  The description of duties in the visa application form was described as ‘Immediate processing of plant products’.  Her payslips show she was employed as a general hand.  The delegate considered the applicant’s work to be manufacturing, and therefore was not specified work in as per the relevant instrument (IMMI 17/018) in place at the time. 

11. On review the applicant submitted to the Tribunal a letter from the General Legal Counsel, Patties Foods dated 24 January 2020. In it the General Legal Counsel explains that in around December 2018 Patties Foods had operational requirements for short term casual workers to work on its fruit line and in packing and from therein engaged a number of working holiday makers, including the applicant.  Further the General Legal Counsel states that they ticked the box for ‘Immediate Processing of plant products’ on each of the workers’ Employment Verification Form (Form 1263) because the workers were intended to be engaged in Patties Foods fruit line in its Bairnsdale Factory.  The General Legal Counsel goes on to explain that all casual workers engaged by Patties Foods are listed as ‘General Hands’ on their payslips and contracts of employment and that this is the classification description in the ‘Patties Foods Limited Enterprise Agreement – Bairnsdale 2017’ under which all directly employed casual staff are engaged and paid. 

12. A Tribunal officer contacted Jennifer Bates, Human Resources Manager at Patties Foods to confirm the applicant’s employment and nature of work.  In an email dated 28 June 2021 Ms Bates confirmed that the applicant was employed as a General hand and worked on a casual basis in the relevant period.  She listed the following tasks and duties performed:

    §Initial checking product for defects and removing as required from the line

    §Replenish packing machine with empty boxes from pallet

    §Removing pies and adding back in undamaged product for packing

    §Critical Check Point- standing or sitting to check weight/ temp of product at station

    §Sliding packed product into boxes

    §Cleaning duties

13. Ms Bates confirmed in a phone conversation with a Tribunal officer on 30 June 2021 that Patties Foods are manufacturers of pre-baked foods, and that the roles do not involve directly handling of primary produce.

14. This information was discussed with the applicant at the Tribunal hearing pursuant to s.359AA of the Act.  She agreed that she performed those tasks and duties, as well as some other ad hoc duties.  The applicant said Patties Foods was a bakery, she worked the night shift undertaking various roles including working in the meat room, making pastry, and primarily packing pastry products.  She said Patties Foods in Bairnsdale used to have fruit products – such as apple pies – but they had moved those functions to a distribution centre in Pakenham before she started. 

15. The applicant said prior to working at Patties Foods she checked with the HR manager there to make sure the type of work met the relevant requirements to be granted a second working holiday visa.  She (along with others) were told that it would: falling under the ‘immediate processing of plant products’ under the Plant and animal cultivation section of the relevant legislative instruments.  The Tribunal accepts her evidence in this regard, noting the acknowledgement of such in Patties Foods General Counsel letter.  However it has no discretion to take this into account when determining whether the work was specified work or not.

16. It is not in dispute that the applicant worked for at least three months in regional Australia.  Evidence has been provided to the Department in the form of payslips from her employer (Patties Foods) and her bank statements showing payments.  The Tribunal is satisfied further that the applicant was the holder of a subclass 417 visa at the time, based on Departmental records, and that the work took place in postcode 3875 which is in regional Australia as set out in LIN 20/103.  Based on the payslips, bank statements and a letter from the General Counsel, Patties Foods provided to the Tribunal advising that the company is registered with the ATO as an employer of Working Holiday Makers and has paid all working holiday makers in accordance with its Enterprise Agreement’, the Tribunal is also satisfied the applicant was remunerated in accordance with relevant Australian legislation.

17. The remaining issue in this case is whether the work undertaken by the applicant at Patties Foods was ‘specified work’ as set out in the relevant instrument.  In the visa application form the applicant described the work as ‘immediate processing of plant products’ which is listed as a kind of work in the work category titled ‘Plant and animal cultivation work’ (Agriculture) in Table 1 (Item 3(e)), LIN 20/103.  However because the payslips listed the applicant’s position as ‘General Hand’ and an internet search of Patties Foods in postcode 3875 showed it was a bakery, the delegate found the applicant’s work more accurately classified by the Australian and New Zealand Industrial Classification (ANZSIC) as belonging to the ‘bakery product manufacturing’ group (216) within ‘food, beverage and tobacco manufacturing’ subdivision, within the ‘MANUFACTURING’ division. 

18. Based on the applicant’s description of the nature of her work at hearing and the correspondence from Patties Foods outlining her tasks and duties performed, the Tribunal is not satisfied that the work could be accurately described as ‘immediate processing of plant products’ or any of the other work listed in the work category titled ‘Plant and animal cultivation work’ (Agriculture) in Table 1 (Item 3(e)), LIN 20/103.  The work primarily involved packing ad sorting of bakery products.  

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

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

    DECISION

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

    Nicole Burns

    
    

    Member