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

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).
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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PHOTHATTHONG (Migration) [2022] AATA 2805
Case: [2022] AATA 2805
Decision Date: 24 May 2022

CaseChat Overview and Summary

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (Subclass 482) in the short-term stream, with the nominated occupation being Restaurant Manager. The primary legal dispute revolved around whether the applicant had met the requirement under clause 482.221 of Schedule 2 to the Regulations, which mandates at least two years of relevant work experience. The decision was made by a Member of the Tribunal.

The core legal issue before the Tribunal was to determine if the applicant had satisfied the criterion of having worked in the nominated occupation or a related field for at least two years, as stipulated by clause 482.221. This involved considering the nature of the work experience and its alignment with the legislative requirement, as well as the weight to be given to departmental policy and guidelines in assessing such claims.

The Tribunal acknowledged that while departmental policy, such as that found in PAM3, can guide decision-makers, it is not binding and cannot override the plain wording of the legislation. The Tribunal noted judicial authority confirming that such guidelines are administrative advisory tools and cannot impose requirements beyond those explicitly stated in the Act and Regulations. Crucially, the Tribunal found that clause 482.221 does not explicitly require work experience to be full-time, suggesting that departmental policy to this effect might be *ultra vires*. Based on the documentary evidence submitted by the applicant, including various employment records and payslips, the Tribunal concluded that the applicant had indeed worked in the nominated occupation or a related field for at least two years, thereby satisfying clause 482.221.

Consequently, the Tribunal remitted the applications for Temporary Skill Shortage (Class GK) visas for reconsideration by the Minister. The Tribunal directed that the first named applicant meets the criteria under clause 482.221 of Schedule 2 to the Regulations. The Tribunal also noted that it did not have jurisdiction in respect of the second named applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has decided that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCERequirement to have worked for at least 2 years Clause 482.221 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years. 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] 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. 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. For these reasons, cl 482.221 is met. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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.Antonio DronjicMemberAttachment 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

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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