Kim (Migration)

[2021] AATA 1717

Kim (Migration) [2021] AATA 1717 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinyoung KIM

CASE NUMBER:  2017383

HOME AFFAIRS REFERENCE(S):          BCC2020/1803679

MEMBER:Nathan Goetz

DATE:26 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 May 2021 at 3:41pm

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – specified work in regional Australia – nature of business and scope of applicant’s duties – no information from employer provided – department decision maker’s and tribunal member’s online searches – departmental policy that work in specified industry, but not specified work kind, is not eligible – ANZSIC description specifically excludes applicant’s duties – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 417.111, 417.211(5)(a), 417.211(3)

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 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 identifies as a 27-year-old male citizen of South Korea.

3. On 21 May 2019 he was granted a working holiday visa and came to Australia on 6 October 2019 holding this visa.

4. On 26 June 2020 the applicant applied for another working holiday visa. 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). The applicant was granted a bridging visa to regularise his migration status in Australia while his working holiday visa application was being considered.

5. The first working holiday visa expired on 6 October 2020.

6. On 17 November 2020 the delegate refused to grant the visa on the basis that the applicant did not meet cl.417.2211(5)(a). That is to say, the delegate was not satisfied that the applicant had carried out a period or periods of specified work in regional Australia as the holder of the first working holiday visa.

7. On 2 December 2020 the applicant applied to the Tribunal for a review of the refusal decision. The Tribunal considered the material it had but was not able to make a decision favourable to the applicant. Consequently, the Tribunal invited the applicant to appear at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.

8. On 10 May 2021 the applicant was invited to appear at a Tribunal hearing on 25 May 2021. The hearing was to be conducted as a telephone hearing as the applicant was resident in Western Australia.

9. On 25 May 2021 the applicant appeared at the Tribunal hearing. The applicant was represented for the review application by registered migration agent 1798516 Mr Sehoon JUN who also attended the Tribunal hearing by telephone.

   CRITERIA FOR THE VISA

10. Clause 417.211(5)(a) requires that at the time the applicant applied for the visa, he had carried out a period or periods of specified Subclass 417 work as the holder of the visa.

11. ‘Specified Subclass 417 work’ is 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Visa application form

12. The applicant gave his employer as Jinning Pty Ltd trading as ‘Jinning Testing & Inspection’ with an ABN 95609444635. It is not a labour hire company. The business is located at 201 Broadwood Street, Kalgoorlie, Western Australia 6430. He described the work as direct employment in ‘mining.’ He described his duties as ‘sample preparer, sort, scan, crush, milling.’ He was employed there from 16 March 2020 until 21 June 2020 and had worked a total of 626 hours, being 98 days. His hourly rate of pay was $33.85.

13. He provided a letter of employment dated 16 March 2020 that stated his base salary was $24.36 per hour.

14. He provided a one-page letter from the Commonwealth Bank dated 26 June 2020 confirming his account balance as $5,390.45 as at 25 June 2020.  He also produced the bank statements for the period of 11 March 2020 to 31 March 2020 and 1 April 2020 to 29 July 2020 for this account.

15. The applicant provided 7 payslips from Jinning Pty Ltd, which identified their address as 14 Bell Street, Canning Vale, Western Australia 6155.

16. He was paid $1,550 on 26 March 2020 for the pay period 16 March 2020 to 29 March 2020. This was reflected as a payment on 28 March 2020 in his bank statement. His hourly rate in that payslip is $24.00

17. He was paid $2,385.27 on 9 April 2020 for the pay period 30 March 2020 to 12 April 2020. This was reflected as a payment on 12 April 2020 in his bank statement. His hourly rate in that payslip is $24.36

18. He was paid $2,806.51 on 23 April 2020 for the pay period 13 April 2020 to 26 April 2020. This payment was not reflected as a payment in his bank statement. The closest amount to this payment was a payment on 26 April for $2,806.81. His hourly rate in that payslip is $37.00.

19. He was paid $2,186.60 on 7 May 2020 for the pay period 27 April 2020 to 10 May 2020. This payment was reflected on 10 May 2020 in his bank statement. His hourly rate in that payslip is $33.85.

20. He was paid $2,517.88 on 21 May 2020 for the pay period 11 May 2020 to 24 May 2020. This is reflected as a payment on 24 May 2020 in his bank statement. His hourly rate in that pay slip is $33.85.

21. He was paid $2,848.15 on 4 June 2020 for the pay period 25 May 2020 to 7 June 2020. This was reflected as a payment on 7 June 2020 in his bank statement. His hourly rate in that pay slip is $33.85.

22. He was paid $2,418.09 on 18 June 2020 for the pay period 8 June 2020 to 21 June 2020. This was reflected as a payment on 21 June 2020 in his bank statement. His hourly rate in that pay slip is $33.85.

23. He provided three photographs but did not identify what they were.

    Material received prior to the Tribunal hearing

24. On 19 May 2021 the applicant provided the Tribunal with a written submission addressing the delegate decision. The submission claimed that:

25. The applicable Legislative Instrument LIN20/103 provided that specified work included ‘(g) mining support services.’ The applicant’s duties should have been classified as mining support work because the applicant’s employer and the applicant’s duties ‘support the mining industry.’ It was put that there was no definition of ‘mining support services’ in the Migration Act or Migration Regulation 1.03 definitions. The submission noted that the delegate had done an ‘open source’ search in relation to the employer and found that the employer was described as a ‘water testings service.’ The submission contended that the delegate should not have considered this when deciding the visa application because ‘open source searches are quite often not accurate and true.’ The submission contended that if the decision-maker had queries about the identity and nature of the employer, the decision-maker should have contacted the employer before making a decision. The submission provided the employer’s website address and contended that they had two business locations, being 14 Bell Street Canning Vale WA 6155 and 201 Broadwood Street WA 6430.

    Oral Evidence given at the Tribunal hearing

26. The applicant told the Tribunal that he was no longer working for Jinning Pty Ltd. He quit that job. He described his duties as processing samples sent from mining sites. The processing involved ‘milling, sorting and crushing.’ He did this by pressing a different button on a machine depending on whether the material was to be milled, sorted or crushed. This reduced the material to a size for sampling. He undertook this work at the Kalgoorlie location. He had never worked at the Canning Vale location. He understood that he was preparing samples for laboratory testing. Once the material was milled, sorted or crushed, it was sent to the laboratory which was located at Canning Vale.

27. The applicant told the Tribunal that this work was a ‘mining support service’ because it involved preparing samples from a mining site. He knew that the samples came from the mines because the material would come with paperwork and specified which mining site they came from. He noted that once the samples came back from the laboratory, the samples would also note which mining site they came from.

28. The applicant was asked why he did not provide a letter from his employer. To the Tribunal’s way of thinking, a letter from the employer would have made it clear exactly what the nature of the business was, and how the applicant was involved in mining support services. The applicant said he did not know that he needed to provide additional documents. He thought that the Department would know that the company provided these services. He assumed that if he wrote that he did ‘sample prepare work’ that that would explain what he was doing. The applicant’s migration agent told the Tribunal that he had requested that the employer provide a letter but that this request had been refused. The Tribunal asked how, apart from the applicant’s oral evidence, it could be satisfied that the work he did related to the mining industry. He noted that the employer was a small company but that other people he knew worked for a bigger company and those people were granted a second working holiday visa.

29. The applicant identified the photos that he had submitted as follows:

30. The photo of him standing in front of a wall with the company name was taken at the Kalgoorlie location. The photo of him with a mask on showed that he was putting the samples into a bag to send to the mines. The photo of the green closed bags contained samples from mining sites before they had been prepared.

31. The applicant told the Tribunal his intention was to get a second working holiday visa and then apply for a third working holiday visa. He noted that he was presently working at an egg factory. At the end of his third working holiday visa he plans to return to South Korea. His family still live there. He told the Tribunal that, apart from the international travel restrictions at the moment and his plan for a second and third working holiday visa, there was no reason why he could not return to South Korea. He said that he did not have any problems.

32. At the Tribunal hearing, the Tribunal noted the criticism in the submission about the delegate undertaking a ‘Google search’ of the employer. The Tribunal undertook the same search as the delegate due to the fact that no letter from the employer had been submitted. A ‘Google search’ of the employer provided a result that identified Jinning Pty Ltd in the Searchview widget details as a ‘water testing service.’ The Tribunal notes that using another search engine such as Bing does not describe the business in those terms. The Tribunal noted that the decision-maker was not required to undertake these inquiries but clearly did so because the applicant had not provided a letter from the employer to confirm its business activities. The need for any ‘open source’ search could have been avoided if the applicant provided a letter from the employer. In relation to the applicant’s submission that the decision-maker should have contacted his employer to find out the ‘identity and nature’ of the business, the Tribunal reminded the applicant that it was not the task of a decision-maker to make his case for him.

33. The Tribunal discussed the applicable Department Policy concerning 413 working holiday visas: [Sch2Visa417] – Working Holiday – 1 July 2019 – Document ID VM-3182. In that policy, the Department notes that ‘work undertaken in a specified industry, but which is not of a specified work kind, is not eligible. The policy provides examples of a receptionist working for a construction company or a caterer on a mining site would not qualify for the second working holiday visa.  Further in the policy, it identifies that ‘performing specialised social science services (such as anthropological and archaeological assessments) for mining companies would be ineligible specified work. In addition, the policy states that the broader activity categories relating to construction and mining are further defined in the 2006 version of the Australian New Zealand Standard Industrial Classification (ANZSIC). This source should be referred to when considering eligibility of work undertaken in the construction and mining industries, and decision-makers are referred to the associated Australian Bureau of Statistics (ABS) ANZSIC 2006 website.

34. According to 1292.0 - Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 (Revision 1.0) mining support services exclude ‘providing ore testing, assaying or similar laboratory type services on a contract or fee basis. Those types of services are included in Class 6925 Scientific Testing and Analysis Services.

35. For the sake of completeness, the same Department policy provides that three months is taken to mean 88 days.

    FINDINGS AND REASONS

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

37. The issue in this case is whether the applicant meets cl.417.211(5)(a). The question is, has the applicant carried out a period or periods of specified work in regional Australia as the holder of the visa? If the answer is yes, then the appropriate course is to remit the matter to the Department for a decision-maker to consider the remaining criteria. If no, then the appropriate course is to affirm the delegate decision.

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

38. The applicant did not provide a letter from his employer to confirm the nature of the applicant’s work. It is curious that such a letter would not be provided. However, the Tribunal accepts that the description of Jinning Pty Ltd as a ‘water testing service’ in the Searchview widget of Google does not accurately describe what that business does. According to the website, which the submission directed the Tribunal to, Jinning Pty Ltd provides ‘mineral laboratory testing and inspection.’ They provide analytical services for geochemistry, hard rock mining industries. The Searchview widget is not a reliable indication of the services provided by a company. This demonstrates why it would have been preferrable for the applicant to provide a letter from his employer when he applied for his visa.

39. Noting that the applicant provided an employment contract, payslips, and bank statements to show that he has been paid by Jinning Pty Ltd, the Tribunal is satisfied that the applicant worked for that employer as claimed. The applicant gave oral evidence about what he did during his employment. The Tribunal accepts that his duties were those he described. There is no evidence that the applicant worked in any place other than Kalgoorlie WA 6430 regional postcode. The Tribunal is satisfied that the applicant completed 98 days work between 16 March 2020 to 21 June 2020 as he declared in his visa application form.

40. While the Tribunal reminds itself that it should not elevate Department policy to the criteria for a visa, it is important to be guided by it to ensure consistency in decision-making and to provide relevant context to the broad term of ‘mining support services.’ Without the relevant Department policy providing this context, it would be arguable that most things that had a ‘connection’ to the mining industry may be considered ‘mining support services.’ For example, providing catering on a mining site has a connection to the mining industry, as it is feeding its workers. Likewise, an advertising agency which produces advertisements for the mining industry has a ‘connection’ to the mining industry. However, it is clear from the Department policy that ‘mining support services’ are envisaged as something more than ancillary services to the mining industry.

41. When the Tribunal considers that the Department policy directs a decision-maker to the 1292.0 - Australian and New Zealand Standard Industrial Classification (ANZSIC), 2006 (Revision 1.0) which specifically excludes ‘providing ore testing, assaying or similar laboratory type services on a contract or fee basis’ from the definition of ‘mining support services’ the Tribunal is satisfied that the work the applicant has undertaken for Jinning Pty Ltd is not the ‘specified work’ as envisaged in the definition of ‘mining support services’ in LIN20/2013.

42. The Tribunal gives no weight to the applicant’s claim that other people who were employed in larger companies doing the same type of work as him were granted a second working holiday visa. There is no evidential basis for this assertion. If the applicant wanted to demonstrate the grants of such visas to persuade the Tribunal that his work (and those of these other people) were the same, he would have needed to provide the Tribunal with copies of those peoples visa applications, and copies of the delegate decisions. The Tribunal knows nothing of these other people who have done the same work as the applicant and allegedly been granted visas.

43. Accordingly, the Tribunal is not satisfied that the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa.

    CONCLUSION

44. For the reasons above, the applicant does not meet cl.417.211(5)(a). As a result, the applicant fails to meet cl.417.211(5) in its entirety and thereby cl.417.211 in its entirety. As the applicant does not meet cl.417.211, he fails to meet cl.417.221(3) and therefore does not meet cl.417.221 in its entirety.

    DECISION

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

    Nathan Goetz

    
    

    Member