One of the first things a prospective migrant does when considering their visa options in Australia is look at the Department of Home Affairs (DHA) website for information on visa requirements.
The DHA website can be a great source of information for people who need a basic understanding of the visa rules. The DHA website is primarily a reflection of Departmental policy, which is essentially the DHA's interpretation of migration law.
It is not uncommon when assisting clients with migration law to notice differences between what the DHA says visa requirements are, and what the law says the visa requirements are. One such example is the requirement that subclass 482 visa applicants have two years of relevant work experience.
This requirement is indeed a legal requirement. However, Departmental policy goes one step further by stating that the 2 years of work experience must be full-time and within the past 5 years. These additional requirements have no legal basis.
The Administrative Appeals Tribunal (AAT) considered this matter in the case of PHOTHATTHONG (MIGRATION) [2022] AATA 2805 (24 May 2022), where the tribunal commented that Departmental policy requiring work experience be full-time and within the past two years is likely 'ultra vires', meaning it is not consistent with the law.
Unfortunately, there is no clear example of what would, or would not, satisfy the two year work requirement. For example, a person working 5 hours per week for 2 years is unlikely to satisfy the requirement. On the other hand, a person working 25 hours per week for two years would be more likely to satisfy the requirement.
Likewise, despite Departmental policy currently being that casual work experience will not be considered, the law does not prevent an application based on casual employment from being successful.
Any prospective subclass 482 visa applicants who do not have 2 years of relevant full-time work experience in the past 5 years, but do still have 2 years of relevant experience (in the past 8 years, for example) are encouraged to convey to the Department how their work experience has prepared them to perform at a skilled level in their proposed role in Australia.
If you are in this situation and would like assistance in getting your visa application approved, please contact us.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
