ACHARYA (Migration)

[2024] AATA 3847

ACHARYA (Migration) [2024] AATA 3847 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudip

Kumar ACHARYA

Mrs Sapana Maya Bomjan

REPRESENTATIVE:  Mr Siddhartha Raj Bhandari (MARN: 2117623)

CASE NUMBER:  2420996

HOME AFFAIRS REFERENCE(S):          BCC2024/2981049

MEMBER:Glen Cranwell

DATE:23 September 2024

PLACE OF DECISION:  Brisbane

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 482.232(1) of Schedule 2 to the Regulations.

Statement made on 23 September 2024 at 10:18am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – chef – English language proficiency – approved test report provided – required scores achieved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.232(1)

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 21 June 2024 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 5 June 2024. 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.

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.232(1) of Schedule 2 to the Regulations because the applicant did not provide evidence that the applicant satisfies the English language test and score requirements for cl 482.232(1).

4. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies cl 482.232(1).

   English language proficiency

7. Clause 482.232(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.232(2), which enables the Minister to require the applicant to demonstrate their English language proficiency in a specified manner, does not apply in this case.

8. The relevant instrument for cl 482.232(1) sets out the English language test requirements, as well as applicants who are exempt from these requirements.

9. On review, the applicant provided a PTE test report taken on 8 July 2024 in which the applicant achieved an overall score of 50 and 36 or more in each of the test components.  This means that the applicant achieved the required test scores in an approved test.

10. For these reasons, the applicant meets the requirements of cl 482.232(1).

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

    DECISION

12. 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 482.232(1) of Schedule 2 to the Regulations.