Adhikari (Migration)

This matter concerned an application for a Temporary Skill Shortage (Class GK) visa (subclass 482) in the medium-term stream, specifically for the occupation of Food Technologist. The applicant, a citizen of Nepal, sought to demonstrate English language proficiency as required by clause 482.232(1) of the Migration Regulations 1994, referencing IMMI 18/032 as the relevant instrument. The applicant had not provided evidence of completing English language tests or meeting any specified exemptions.

The primary legal issue before the Tribunal was whether the applicant had satisfied the English language proficiency requirements for the visa. The Tribunal considered clause 482.232(1), which mandates meeting language test requirements specified in an instrument, and noted that clause 482.232(2), which allows the Minister to specify a manner of demonstrating proficiency, was not applicable. The Tribunal also examined whether any exemptions under IMMI 18/032 applied, finding none.

The Tribunal reasoned that the applicant had not provided evidence of undertaking the required English language test. While the applicant claimed to have a booked test that was cancelled and a credit for a future test, he had not presented proof of attending or completing any such test. The applicant also cited a workplace injury sustained in November 2021, leading to a shoulder injury, anxiety, and depression, which he argued prevented him from undertaking the test. However, the Tribunal found no evidence that the applicant had met any exemption criteria, nor had he provided sufficient evidence to excuse his failure to meet the primary English language requirement. The Tribunal also noted the applicant's unclear relationship with his migration representative.

Consequently, the Tribunal affirmed the decision not to grant the Temporary Skill Shortage (Class GK) visa to the applicant. As the primary applicant did not meet the criteria for the visa, the Tribunal also affirmed the decision in respect of the second applicant, who was a member of the family unit.