Shim (Migration) - [2022] AATA 2975

Shim (Migration) [2022] AATA 2975 (14 May 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mrs Jungin Shim Mr Sukjin Cho Miss Ara Cho Master Arthur Cho

REPRESENTATIVE: Mr Dow Woo PARK (MARN: 0741800)

CASE NUMBER: 1913140

HOME AFFAIRS REFERENCE(S): BCC2018/5904758

MEMBER: Alison Mercer

DATE: 14 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 482.231 of Schedule 2 to the Regulations.

Statement made on 14 May 2022 at 1:48pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage – Medium-term stream – Chef – two years' work experience in related field – Departmental Policy – Procedures Advice Manual (PAM3) – 5 years’ experience on regular part-time basis of 20 hours per week – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 482.231
CASES
Moller v MIAC [2007] FMCA 168

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 14 May 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 1 January 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 Medium-term stream to work in the nominated occupation of Chef.

The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.231 of Schedule 2 to the Regulations, which required that she had worked in the nominated occupation or a related field for at least 2 years. The delegate did not accept the applicant’s claimed Korean work experience as a Chef, as it was not verified by objective documentary evidence, such as payslips. The delegate also refused to grant subclass 482 visas to the second, third and fourth named applicants (the applicant’s husband and children), as they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 482 visa, and there was no evidence that they met the primary visa criteria in their…

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.

Continue reading Shim (Migration)

Details

AGLC: Shim (Migration) [2022] AATA 2975
Case: [2022] AATA 2975
Decision Date: 14 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Mr Shim for a Temporary Skill Shortage (TSS) visa (subclass 482) in the medium-term stream. Mr Shim sought review of the delegate's decision to refuse his visa application. The refusal was based on the delegate's assessment that Mr Shim did not satisfy the work experience requirement for the nominated occupation of Chef.

The primary legal issue before the Tribunal was whether Mr Shim possessed the requisite two years of work experience in a related field, as stipulated by the relevant legislative instrument and the Department's Procedures Advice Manual (PAM3). Specifically, the Tribunal had to determine if Mr Shim's work experience, undertaken on a regular part-time basis of approximately 20 hours per week, met the Department's policy interpretation of "five years’ experience on a regular part-time basis".

The Tribunal found that the delegate had erred in their interpretation of the PAM3 guidance. The Tribunal reasoned that the PAM3 guidance, which suggested that five years of part-time experience at 20 hours per week was equivalent to two years of full-time experience, was intended to provide a flexible approach to assessing part-time work experience. The Tribunal concluded that Mr Shim's evidence demonstrated he had accumulated sufficient relevant work experience, and that the delegate had applied the policy too rigidly.

Consequently, the Tribunal remitted the decision to the delegate with a direction to grant the visa, finding that Mr Shim had met the work experience requirement.

Orders