Kim (Migration)

This matter concerned an application for a Working Holiday (Temporary) (Class TZ) visa, subclass 417, brought by Mr Kim. The dispute arose because the Department of Home Affairs and the Administrative Appeals Tribunal (AAT) both determined that Mr Kim had not satisfied the requirements for specified work in regional Australia, which is a condition for this visa subclass. The decision under review was affirmed by the AAT.

The legal issues before the court were whether Mr Kim’s employment with Jinning Pty Ltd, trading as ‘Jinning Testing & Inspection’, constituted ‘specified work’ for the purposes of the Working Holiday visa, and whether his duties as a ‘sample preparer, sort, scan, crush, milling’ fell within the scope of eligible work as defined by the relevant legislative instrument and departmental policy. Specifically, the court had to consider the nature of the business and the applicant’s role within it, in light of the Australian and New Zealand Standard Industrial Classification (ANZSIC) descriptions and departmental guidelines.

The court affirmed the AAT’s decision, finding that Mr Kim did not meet the requirements of clause 417.211(5)(a) of the Migration Regulations. This conclusion was based on the fact that the ANZSIC description for the relevant industry, as interpreted by departmental policy, specifically excluded the applicant’s described duties. While Mr Kim provided evidence of his employment, including payslips and bank statements, and described his work as being in ‘mining’, the nature of his specific tasks did not align with the definition of ‘specified work’ as set out in the Minister’s instrument LIN 20/103. The court noted that the department’s policy stipulated that work within a specified industry, but not the specified kind of work, was not eligible. Consequently, Mr Kim failed to meet the overall visa requirements.