Shim (Migration)

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.