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

1. 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).

1. 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.

1. 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 own right.

1. The Tribunal received a review application from the applicants on 27 May 2019, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Chang Ho Yoo, as their representative and authorised recipient for correspondence.

1. On 14 January 2022, the Tribunal wrote to the applicants via their agent to request them to provide updated and current information to demonstrate that the applicant had worked in his nominated occupation (or a related field) for at least 2 years.

1. The applicant requested an extension of time to respond on 27 January 2022 and this was granted to 11 February 2022. On 9 February 2022, the applicant and her agent provided the following:

·applicant’s curriculum vitae;

·employment reference for the applicant;

·pay slips for the applicant; and

·PAYG payment summaries, together with associated tax returns, for the applicant.

1. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

Requirement to have worked for at least 2 years

1. Clause 482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years.

1. This criterion is assessed at the time of decision; in this case, the time of the Tribunal’s decision in 2022.

1. The applicant’s nominated occupation is Chef (ANZSCO code 351311). The description for this occupation contained in the Australian and New Zealand Standard Classification of Occupation (ANZSCO) online dictionary:

…

UNIT GROUP 3513 CHEFS

CHEFS plan and organise the preparation and cooking of food in dining and catering establishments.

Cooks, Fast Food Cooks and Kitchenhands are excluded from this unit group. Cooks are included in Unit Group 3514 Cooks. Fast Food Cooks and Kitchenhands are included in Minor Group 851 Food Preparation Assistants. Indicative Skill Level:

Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.

In Australia:

AQF Associate Degree, Advanced Diploma or Diploma (ANZSCO Skill Level 2)

…

At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on- the-job training may be required in addition to the formal qualification.

Tasks Include:

·planning menus, estimating food and labour costs, and ordering food supplies

·monitoring quality of dishes at all stages of preparation and presentation

·discussing food preparation issues with Managers, Dietitians and kitchen and waiting staff

·demonstrating techniques and advising on cooking procedures

·preparing and cooking food

·explaining and enforcing hygiene regulations

·may select and train staff

·may freeze and preserve foods

Occupation:

351311 Chef

351311 CHEF

Plans and organises the preparation and cooking of food in a dining or catering establishment.

Skill Level: 2 Specialisations:

Chef de Partie Commis Chef Demi Chef Second Chef Sous Chef

…

1. In her curriculum vitae, the applicant lists the following work experience:

   …

[Jul 2017~Now] Yang Tz River Chinese Restaurant, Eastwood, NSW

·Position : Chef (Part time)

·Design the menu, review food and beverage purchases, and often train cooks and other food preparation workers, etc

[Mar 2013~Jan 2016] Jukcheongol, Inchon-si, South Korea

·Position : Chef (Full time)

·Design the menu, review food and beverage purchases, and often train cooks and other food preparation workers, etc

[Mar 2005~Feb 2013] Chungsachorong, Incheon-si, South Korea

·Position – Chef (full time)

·supervise cooks, prepare meals, and report results to the head chefs.

[Mar 2004~Feb 2005] Yang Tz River Chinese Restaurant, Eastwood, NSW

·Position : Chef assistant (Full time)

·Make dumpling, trim vegitables, etc

[Mar 2003~Feb 2004] Choigojib BBQ, Inchon-si, South Korea

·Position : Chef assistant (Full time)

·All kind of Cooking in menu, Make side dishes, etc

…

1. The reference letter from the owner of LJJ Holdings Pty Ltd (trading as Yang Tz River Chinese Restaurant), Jong Jin Lee, dated 7 February 2022, provides the following information:

   …

LJJ Holdings Pty Ltd is an Australian proprietary company limited by shares and located in Eastwood NSW. [It] is a Chinese-Korean restaurant under the trading name as Yang Tz River Chinese Restaurant and caters for lunch and dinner services.

Our restaurant provides a vast range of Chinese-Korean cuisine and services to satisfy a variety of demands of potential patrons, serving over 100 different menu items and some of them vary partially according to seasons.

The nominee, Jungin, started as a part time Chef since 01 July 2017 and she is still with us as a part time Chef (20 hours per week) as her visa condition 8105.

During her employment, she has been performing her duties and tasks diligently as listed below.

·Determine production schedules and staff requirements necessary to ensure timely delivery of services;

·Recruit and hire staff, including cooks and other kitchen workers;

·Supervise and coordinate activities of cooks and workers engaged in food preparation;

·Analyse recipes to assign prices for menu items based on food, labour and overhead costs;

·Meet with sales representatives to negotiate prices and order supplies;

·Collaborate with other personnel to plan and develop recipes and menus, taking into account such factors as seasonal availability of ingredients and the likely number of customers;

·Plan, direct and supervise the food preparation and cooking activities of multiple kitchens or restaurants in an establishment such as a restaurant chain, hospital or hotel;

·Check the quality of raw and cooked food products to ensure standards are met;

·Check the quantity and quality of received products;

·Record production and operational data on specified forms;

·Estimate costs and amounts of required supplies, such as food and ingredients;

·Prepare and cook foods of all types, either on a regular basis or for special guests or functions;

·Order or requisition food and other supplies needed to ensure efficient operation;

·Coordinate planning, budgeting and purchasing for all the food operations;

·Monitor sanitation practices to ensure that employees follow standards and regulations;

·Arrange for equipment purchases and repairs;

·Instruct cooks and other workers in the preparation, cooking, garnishing, and presentation of food;

·Determine how food should be presented and create decorative food displays;

·Inspect supplies, equipment and work areas to ensure conformance to established standards;

·Demonstrate new cooking techniques and equipment to staff;

·Meet with customers to discuss menus for special occasions such as weddings, parties and banquets.

Jungin, being a brilliant chef with outstanding skills and a customer-oriented mindset, precisely fits our company’s needs and we need to have this person work in our kitchen and venue for the survival and continued growth of our restaurant. Her cooking skills and knowledge will be playing a pivotal role in keeping my company growing as one of the most admired and preferred Korean-Chinese restaurants in Eastwood NSW.

Having considered the importance of Jungin’s role in the continued growth of our restaurant please let her work with us for her fulfilling life work in this company.

…

1. The above employment experience is substantiated by the applicant’s payslips from 1 July 2017 to 22 January 2022 from LJJ Holdings Pty Ltd, her PAYG payment summaries for 2017/18 and 2018/19 and ATO income statements for 2019/2020 and 2020/2021 (all of which list LJJ Holdings Pty Ltd as her employer), and her tax assessment notices for those financial years.

1. The Tribunal notes that the applicant’s work experience to date with LJJ Holdings Pty Ltd exceeds 2 years, and has been part time.

1. The Tribunal has reviewed the section of PAM3 (as it was at the time that the visa application was made on January 2019) which deals with cl.482.231. It provides as follows (Tribunal emphasis in bold font):

4.6.1  Work experience  

Under clause 482.221 and 482.231, visa applicants are required to have worked in the nominated occupation, or a related field, for at least two years.

This requirement is aimed at ensuring visa applicants are highly skilled and have experience in the occupation (or a related occupation), and can quickly contribute that experience into the Australian workforce.

As a result, the intention is that any work experience completed, subject to the Industry Specific Advice below, including in relation to vocational placements, must be completed while:

·     working in the nominated occupation; or

·     performing tasks at the same skill level in a related field – see Work Experience in a related field below.

Under policy, it is generally expected that the work experience should have been undertaken on a full-time basis in the last five years. This period does not, however, need to be continuous. Decision-makers may also consider work undertaken as a part-time employee that is equivalent to two years full-time, where they are confident that the applicant’s experience and skills are relevant and current.

·     Consistent with the National Employment Standards (NES), employment will be considered ‘full-time’ where the visa applicant worked 38 hours per week.

·     Work experience will, however, also be considered 'full-time' where the visa applicant worked for a period between 32 and 45 hours per week under an industry award or an agreement that was consistent with the NES where applicable.

·     Decision-makers should also be aware that there are a variety of prevailing work arrangements in the Australian labour market that do not adhere to a standard work week and contact Program Management if they require further advice.

Note:

·     The ‘two years’ work experience requirement is separate to any work experience requirements outlined in ANZSCO occupation definitions, which are relevant in terms of assessing sub-clause 482.212(3).

·     Casual employment should not be counted towards meeting the work experience requirement.

…

1. In the ordinary case, policy is a relevant factor for the Tribunal to take into account.1 Whether the Tribunal should apply that policy or interpretative guidelines in a particular case will depend on a range of factors, including whether it is exercising a discretionary or non- discretionary power and whether the nature of the power suggests an emphasis on consistency or a focus on the circumstances of the individual case.

1. When exercising a non-discretionary power the Tribunal may consider Departmental Policy regarding the interpretation of a legislative provision. However, it should not treat the

1 See, e.g., Hneidi v MIAC [2009] FCA 983 (Besanko J, 2 September 2009), at [37].

Department’s opinion as determinative in such matters.2 When exercising a non- discretionary power, it is the duty of the decision maker to apply the statutory test.3 Accordingly, while the Tribunal is not bound consider policy, if it does have regard to it, the Tribunal must be mindful to bring its consideration back to the terms of the legislation.

1. The Procedures Advice Manual (PAM3) issued by the Department of Immigration is a document that contains guidelines to the Department’s interpretation and application of the Act and Regulations as well as procedures to be followed by Departmental Officers. Much of PAM3 can properly be categorised as an opinion as to the interpretation of the legislation, rather than as ‘policy’. Unlike Directions made under s.499 of the Act, PAM3 is not a legislative instrument and does not have the force of Ministerial Direction given under s.499.

1. As noted by the Court in Moller v MIAC:

[PAM3’s] status is merely a set of administrative guidelines, and its contents cannot be elevated into legally relevant considerations or binding representations (see Vishnumolakala v Minister for Immigration & Anor [2006] FMCA 1209 at [27]-[29] and cases there cited). Nor can its legal interpretations or restatements be applied by the Migration Review Tribunal or this Court as substitutes for the regulations, which must be construed according to their own language under principles of statutory interpretation.4

1. Similarly, the court in Sakhno v MIAC stated that:

… policy, not matter how clearly set out, in the Procedures Advice Manual 3 of the department cannot change or amend the migration regulations, if what is set out in the policy document is not in accordance with the migration regulations, then it is wrong. It is the regulation that must be preferred to the policy document.5

1. In this case, the wording of cl.482.231 requires that the applicant has worked in the nominated occupation or a related field for at least 2 years; it does not specify that this work must have been on a full time basis. While there may be good policy reasons – as set out in PAM3 above – for preferring that this work have been performed on a full time basis, it is not a legislative requirement. This is in fact recognised in the above PAM3 extract in the statement that ‘Decision-makers may also consider work undertaken as a part-time employee that is equivalent to two years full-time, where they are confident that the applicant’s experience and skills are relevant and current.’

1. The applicant and her employer have stated that the applicant was employed as a part time Chef from July 2017 to date (the reference letter is dated 7 February 2022), a period of nearly 5 years.

1. In the Tribunal’s view, the applicant’s total work for LJJ Holdings Pty Ltd for approximately 5 years on a regular part time basis of 20 hours per week, performing tasks that align with the ANZSCO occupational description for a Chef (as per her employer reference letter), should be taken to constitute 2 years of work in the nominated occupation.

1. For these reasons, the Tribunal finds that cl 482.231 is met.

2 Port of Brisbane Corporation v DCT (2004) 140 FCR 375 at 386.[2004] FCA 1232 at [25] - [26].

3 Su & Anor v MIMIA [2005] FCA 655 (Hely J, 24 May 2005). The Court stated that “a decision as to whether the appellant was not the holder of a substantive visa when he applied for the visa in question because of factors beyond his control is a factual question, which requires neither the consideration of ‘policy’ nor the exercise of a discretion” (at [10]). Hely J found that the Tribunal mechanically applied policy guidelines, rather than the statutory test, and thereby addressed the wrong question (at [14] and [17]).

4 [2007] FMCA 168 (Smith FM, 28 February 2007) at [14].
5 [2007] FMCA 1492 (Scarlett FM, 6 September 2007) at [55].

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

1. As the second, third and fourth named applicants applied as members of the family unit of the applicant, the outcome of their applications will be determined by the outcome of the applicant’s application upon reconsideration by the Department.

DECISION

1. 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.

Alison Mercer Member