KIM (Migration)

[2023] AATA 1168

KIM (Migration) [2023] AATA 1168 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinyoung KIM

REPRESENTATIVE:  Mr Jonghyon Sohn

CASE NUMBER:  2210829

HOME AFFAIRS REFERENCE(S):          BCC2020/1803679

MEMBER:Naomi Schmitz

DATE:28 April 2023

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 28 April 2023 at 8:37am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Federal Circuit and Family Court remittal – visa extension application – 3 months of specified work in regional area while holding first visa – mining support services – processing rock samples for testing – broad term in legislative instrument cannot be narrowed down by reference to ANZSCO – colleagues performing same work granted visas – decision made without hearing necessary – decision under review remitted

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

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 17 November 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 applied for the visa on 26 June 2020. 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). Relevantly to this case, they include cl 417.211(5)(a).

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl 417.211(5)(a) because the delegate was not satisfied with the applicant had carried out a period or periods of specified work in regional Australia as the holder of the visa.

   Background

4. The applicant is a citizen of South Korea and currently aged 28 years.

5. The applicant was granted his first Working Holiday visa (Subclass 417) on 21 May 2019.

6. The applicant arrived in Australia on 6 June 2019.

7. On 26 June 2020, the applicant applied for a second Working Holiday visa (Subclass 417).

8. On 17 November 2020, the second Working Holiday visa (Subclass 417) was refused by the Department.

9. On 2 December 2020, the applicant applied to the Tribunal for review of the refusal decision.

10. The applicant appeared before the Tribunal on 25 June 2021, by a differently constituted Member.

11. On 26 May 2021, the Tribunal affirmed the decision under review.

12. On 17 June 2021, the applicant filed an application for judicial review in the Federal Circuit Court of Australia regarding the Tribunal's decision to affirm the decision under review.

13. On 12 July 2022, the Federal Circuit and Family Court of Australia (FCFCA) remitted by consent the Tribunal's decision. The court found that:

    The Tribunal fell into jurisdictional error by misapplying the Departmental policy concerning Working Holiday (Temporary) (Class TZ) (Subclass 417) visas ([Sch2Visa417] Sch2 Visa 417 – Working Holiday (document ID VM- 3182)) and the 1292.0 Australian and New Zealand Standard Industrial classification (ANZSIC) 2006 (revision 1.0) such that it did not perform its statutory tsk to make the correct or preferrable decision: Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20 at [41]-[44] referring to Drake v Minister for Immigration and Ethnic Affairs [1979] FCAFC 39.

14. The matter was constituted to a different Member.

15. On 9 February 2023, the Tribunal invited the applicant to attend a hearing listed on 27 February 2023. The applicant was requested to provide all information in support of his application for review by 20 February 2023.

16. On 14 February 2023, the Tribunal received a request that the hearing be postponed.

17. On 15 February 2023, the Tribunal Member adjourned the hearing to a date to be fixed.

18. On 17 February 2023, the representative requested an extension of time to provide information until 27 February 2023. On 17 February 2023, the Tribunal Member granted the application for an extension of time.

19. On 27 February 2023, the representative provided legal submissions and various documents in support of the applicant’s application for review including an employment contract between Jinning Pty Ltd and the applicant; the applicant’s pay slips; the applicant’s bank statement from 22 March 2020 until 29 July 2020; photographic evidence of the applicant working at Jinning Pty Ltd at the Kalgoorlie site; the applicant’s original visa application form; a screen capture of Jinning Pty Ltd laboratory services overview (including a google map of the Kalgoorlie site location); the original Tribunal decision record quashed by the FCFCA; two analogous Tribunal decisions; two statements from Jinning Pty Ltd workers who undertook the same work as the applicant and their visa grant notices evidencing that both were granted Working Holiday (Subclass 417) visas.

20. On 5 April 2023, the Tribunal advised that the Tribunal Member had carefully consider the information provided and was able to make decision favourable to the applicant without re-listing the matter for hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

22. If the applicant has held only one Subclass 417 visa in Australia, cl 417.211(5) requires that at the time of the visa application,

    (a)  the applicant has carried out a period or periods of specified work in regional Australia as the holder of the visa; and

    (b)  the total period of the work carried out is at least 3 months; and

    (c)  the applicant has been remunerated for the work in accordance with relevant Australian legislation and awards.

23. ‘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 at the time of application was IMMI 20/103.

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

24. Information provided to the Tribunal shows that the applicant was employed by Jinning Pty Ltd (ABN 95609444635) from 16 March 2020 until 21 June 2020, working a total of 98 days as a casual employee. The hourly rate was $33.85. In support the applicant provided an employment contract, seven pay slips, the applicant’s bank statements from 22 March 2020 until 29 July 2020 and photographic evidence of the applicant during his course of employment.

25. The applicant worked at one of Jinning Pty Ltd’s places of business, Jinning Testing and Inspection located at 201 Broadwood St, Kalgoorlie, Western Australia 6430. This is supported by the employment contract at clause 3 which has the applicant’s principal place of employment as ‘Kalgoorlie’.

26. In the applicant’s visa application form, the applicant wrote that he worked in the mining industry and the description of duties was ‘Sample preparer, Sort, Scan, Crush, Milling’. In the employment contract, his position is ‘Sample prepare worker’. On 25 May 2021, at the original Tribunal hearing, he gave oral evidence, where he described his duties as processing samples sent from mining sites. This involved him operating a machine to mill, sort and crush rock, to reduce the material to a sample size at the Kalgoorlie location. The samples were thereafter sent to the laboratory at the Canning Vale location. The applicant confirmed he never worked at the Canning Vale address.

27. At the original Tribunal hearing, the applicant told the Tribunal that his work was a ‘mining support service’ because it involved preparing samples from a mining site. The applicant described his duties as processing samples sent from mining sites. The processing involved ‘milling, sorting and crushing’. The samples were prepared for laboratory tests at Canning Vale. He knew that the samples came from the mines because the material would come with paperwork and specify which mining site they originated from. In support the applicant provided a screen capture of Jinning Pty Ltd’s website which shows the company's laboratory services regarding minerals which the Tribunal accepts.

28. In submissions provided to the Tribunal, the applicant submitted that he undertook work that can be classified as Item 4(g) ‘Mining Support Services’ of Table 7 Specified work of the Instrument LIN 20/203. The applicant also referred to the Australian New Zealand Standard Industrial Classification (ANZSIC) 2006.  

29. The applicant submitted the important paragraph of the ANZSIC document should be:

    This class consists of units mainly engaged in providing mining support services integral to the mining process. Crushing and moving rock samples at a field office of a mining town is day-to-day work done by many laboratory test service businesses around the town and it is integral to the mining business. Without the service, the mining companies cannot ascertain the quality of the mined minerals and their profitability is in doubt.

    Even though we admit that JINNING Pty Ltd ultimately provides laboratory-type testing service for mining companies, the testing work is done at laboratories in major cities like Perth. Even though the laboratory service can serve to other industries, the physical work done with rock/mineral samples by the applicant in the mining town Kalgoorlie would be solely in support of the mining companies in Kalgoorlie.

    … PAM3, and by reference ANZSIC, is only one relevant factor to be taken into account and only to the extent it is not inconsistent with the relevant regulation and instrument. PAM3 and ANZSIC, while providing guidance, are not referred to in the relevant legislation as a reference point by which ‘specified work’ or ‘mining support services’ must be assessed. The term ‘mining support services’ in the relevant instrument is a broad term and while assistance can be gained from ANZSIC as to what might constitute mining support services, the Tribunal does not consider that the broad term in the instrument can be read down by reference to ANZSIC.

30. The Tribunal accepts that the Departmental policy PAM3 is used as guidance and is not a definitive answer or checklist. The authoritative source of legislation hierarchy includes Acts, Regulations and instruments, gazette notices, but not the Departmental policy. The Tribunal accepts that the broad term ‘mining support services’ in the instrument LIN20/103 cannot be narrowed down by reference to ANZSIC.

31. The applicant  further submitted that there are other working holiday makers who worked as ‘sample prepare workers’ for Jinning Pty Ltd, at the same Kalgoorlie site and who undertook identical work to the applicant who were granted their second or third Working Holiday visas. In support the applicant provided statements from two work colleagues, together with visa grant notices from the Department. The applicant also provided two Tribunal decisions, where the Department had originally refused the visas on the same grounds, but the applications were remitted by the Tribunal and the visas eventually granted. The applicant conceded although the Tribunal was not bound by the decisions of other Tribunal Members, consideration ought to be had to them for consistency.

32. The applicant submitted payslips and banking records that showed the applicant worked full-time from 16 March 2020 until 21 June 2020 which was more than three months.

33. The casual hourly rate of the applicant on his payslips was $33.85 and the casual loading with 25%. Therefore, the hourly rate for a full-time employee would have been $27.08 which is more than the minimum wage in 2020 and the wage Level 1 and 2 employee of Mining Industry Award 2020 for the year 2020. The applicant was therefore remunerated for the work in accordance with the relevant Australian legislative awards.

34. Overall, applicant submitted that he had undertaken the specified work stipulated in cl 41.211(5)(a) for more than three months while being renumerated for the work in accordance with the relevant Australian legislative awards. Therefore, the applicant cl 417.211 in Schedule 2 of the Regulations.

    FINDINGS

35. The Tribunal has carefully considered the representative’s submissions and evidence filed in in support, in addition to the relevant legislative instrument LIN 20/103.

36. The Tribunal is satisfied on the evidence of the employment contract, the pay slips and bank statements that the applicant has carried out work in Australia as the holder of a Subclass 417 visa for a period of three months. The Tribunal is further satisfied that the applicant undertook work at the Kalgoorlie location, in regional Australia, where samples were prepared and processed by the applicant. The fact that the samples were subsequently sent off site for analysis, that is to Canning Vale, does not detract from the applicant’s work at the Kalgoorlie work site.

37. The Tribunal has further considered the description of the job duties and responsibilities performed by the applicant as a ‘Sample Preparer’. The Tribunal accepts the applicant’s evidence that his role entailed processing untested rocks from a mining site involving the processing steps of milling, crushing, and sorting. The Tribunal accepts the description of tasks performed by the applicant were primarily mechanical processes that could reasonably be regarded as ‘mining support services’ integral to the mining process and accepts it was specified work under the Mining category LIN 20/103. The Tribunal observes this is consistent with the Department's treatment of similar work performed by others as indicated in the evidence submitted by the applicant of associates known to him.

38. The Tribunal does not share the delegate’s concerns that Jinning Pty Ltd was a ‘water testing service’, which was based on an amateur Google search conducted by the delegate. Of significance, this was never put to the applicant at the Departmental stage, depriving the applicant of natural justice. The Tribunal also does not share the delegate’s interpretation of the Legislative instrument LIN 20/103.

39. The Tribunal accepts the applicant performed this work in regional Australia as specified in LIN20/103 and was remunerated in accordance with relevant Australian legislative awards.

40. Therefore, the applicant satisfies cl 417.211(5).

41. Given the findings above, 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

42. 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)(a) of Schedule 2 to the Regulations.

    Naomi Schmitz

    
    

    Member