PHOTHATTHONG (Migration)

[2022] AATA 2805

PHOTHATTHONG (Migration) [2022] AATA 2805 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Miss Thunyathon PHOTHATTHONG

Mr Anupong WONGHARN

REPRESENTATIVE:  Mr Richard Wah Choi Tan (MARN: 9896875)

CASE NUMBER:  1936398

HOME AFFAIRS REFERENCE(S):          BCC2019/5554435

MEMBER:Antonio Dronjic

DATE:24 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl 482.221of Schedule 2 to the Regulations; and

·The Tribunal does not have jurisdiction in respect of the second named applicant.

Statement made on 24 May 2022 at 9:41am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Restaurant Manager – at least 2 years of relevant experience – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.221

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 December 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 November 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. In this case, the primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of a Restaurant Manager.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant has worked in the nominated occupation or a related field for at least 2 years.

4. The applicants applied to the Tribunal on 25 December 2019 for review of the visa refusal and with their application submitted a copy of the primary decision record.

5. On 16 February 2022, the applicants’ representative provided submissions and documentary evidence in support of the applications. The list of documents is attached to this decision record and marked as Attachment A.

6. On 21 April 2022, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a video hearing scheduled for 17 May 2022.

7. On 28 April 202, the applicants’ representative wrote to the Tribunal stating that Miss Phothatthong and Mr Wongharn divorced on 27 May 2021 and that secondary applicant in no longer a review applicant. On 2 May 2022, the primary applicant submitted the withdrawal form in respect of her former spouse, Mr Wongharn.

8. The applicant appeared before the Tribunal on 17 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicants were represented in relation to the review.

9. In her evidence, the applicant stated that she ceased employment at the sponsoring business located in Alice Springs, NT on 21 December 2020 because of her former husband. They moved to Western Australia and she commenced working as a restaurant manager at Kiosk Floreat Beach located in Perth.

10. In May 2021, she divorced Mr Wongharn but they continued to live together until March 2022, when her former husband departed Australia and returned to Thailand.

11. The applicant is and has been employed as a full-time restaurant manager since 13 September 2021, at Cimbalino restaurant located in West Perth. This business did not sponsor or nominated her for a Subclass 482 visa. 

12. The applicant gave evidence that she intends to move back to Alice Springs and continue her employment at the nominating business as soon as the Tribunal decides the current application. She gave evidence that she has been in contact with the management of Epilogue Lounge and that they are willing to offer her position of a restaurant manager as soon as she returns to Alice Springs.

13. The Tribunal requested additional documentary evidence from the sponsoring business that will confirm their willingness to employ the applicant and granted additional time until 23 May 2022 to do so.

14. On 23 May 2022, the applicant’s representative submitted a copy letter from Mr Chris Wilkinson, the owner of the Epilogue Lounge, dated 23 May 2022, confirming that the nominated position is still available for Mss Phothatthong. The representative also submitted evidence that the applicant booked a one-way ticket to Perth on 19 June 2022.

15. For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement to have worked for at least 2 years

16. Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

17. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and the Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

    [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

    [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]

18. Departmental policy is that it is generally expected that the work experience should have been undertaken on a full-time basis (though not continuously) in the last five years. The Tribunal note that, given that cl 482.221 does not explicitly require the work to be undertaken on a full-time basis, the departmental policy is likely to be ultra vires.

19. On 16 February 2022, the applicant submitted additional documentary evidence of her employment as a Restaurant Manager in Australia. Based on the evidence before it, the Tribunal finds that the applicant has worked in the nominated occupation or a related field for at least 2 years.

20. For these reasons, cl 482.221 is met.

21. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

22. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl 482.221of Schedule 2 to the Regulations; and

    ·The Tribunal does not have jurisdiction in respect of the second named applicant.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Submissions from the applicant’s representative dated 16 February 2022

    ·Letter from BUPA dated 16 February 2022

    ·Payslips from Brika

    ·Primary applicant’s ATO income statement for the period December 2020 to June 2021

    ·Letter from Epilogue Lounge dated 10 December 2020

    ·Payslips from Epilogue Lounge

    ·Primary applicant’s ATO superannuation letter dated 22 April 2021

    ·Department of Home Affair’s sponsorship approval letter dated 4 November 2019

    ·Advanced Diploma of Leadership and Management certificate and academic transcript

    ·Letter from Cimbalino Espresso dated 15 February 2022

    ·Payslips from Cimbalino Espresso

    ·Primary applicant’s ATO income statement for the period September 2021 to February 2022

    ·Letter from Kiosk Floreat Beach dated 18 October 2021

    ·Payslips from Albarossa Pty Ltd

    ·Primary applicant’s ATO income statement for the period March 2021 to September 2021

    ·Letter from Brika dated 8 February 2022

    ·Primary applicant’s Commonwealth Bank of Australia transactions statement for the period December 2015 to March 2016

    ·Primary applicant’s PAYG payment summary for the years ending 30 June 2016 and 30 June 2017

    ·Primary applicant’s Resume

    ·Primary applicant’s ATO Notice of assessment for the years ended 30 June 2016 to 30 June 2021

    ·Primary applicant’s ATO income statement for the period July 2020 to December 2020

    ·Primary applicant’s employment contract with Epilogue Lounge

    ·Letter from Urban Café Store dated 20 April 2019

    ·Payslips from Urban Café Store

    ·Primary applicant’s PAYG payment summary for the year ending 30 June 2018

    ·Letter from Lembooth Pty Ltd dated 5 December 2016

    ·IELTS test report form dated 29 September 2018

    ·Divorce order dated 26 April 2021

    ·Primary applicant’s Certificate III in Advanced English for Further Study and academic transcript

    ·Letter from Sydney Institute dated 25 January 2013

    ·Primary applicant’s Diploma of Marketing certificate and academic transcript

    ·Primary applicant’s Diploma of Project Management and academic transcript