PHOTHATTHONG (Migration)

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.