Avila Borja (Migration)

[2019] AATA 4594

Avila Borja (Migration) [2019] AATA 4594 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andres Fernando Avila Borja
Mrs Jessica Patricia Gutierrez Cobra
Mr Thael Luciana Avila Gutierrez

CASE NUMBER:  1905249

DIBP REFERENCE(S):  BCC2018/3415133

MEMBER:Katie Malyon

DATE:13 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl.482.232 of Schedule 2 to the Regulations

Statement made on 13 September 2019 at 3:00 pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 Temporary Skill Shortage – Medium-term stream – English language proficiency – achieved minimum PTE score – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(3)
Migration Regulations 1994 (Cth), Schedule 2 cl 482.232

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 Immigration to refuse to grant the applicants GK Subclass 482 Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 September 2018. The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and criteria of one of 3 alternative streams: the Short-term stream; the Medium-term stream; or, the Labour Agreement stream.  The applicants applied for the visa in the Medium-term stream.

3. The delegate refused to grant the visas on 14 February 2019 on the basis that the first named application, Colombian national Mr Andres Fernando Avila Borja, did not provide sufficient evidence of his English language ability as required to satisfy cl.482.232 of Schedule 2 to the Regulation. A copy of the delegate’s decision was provided to the Tribunal.

4. The Tribunal did not hold a hearing in this matter as, consistent with s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicants’ favour on the basis of material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether Mr Avila Borja meets the English language requirements as set out in cl.482.232 of Schedule 2 to the Regulations for applicants in the Medium-term stream.

6. For the purposes of cl.482.232 of the Regulations, the relevant legislative instrument as specified by the Minister is IMMI 18/032. This instrument specifies that, in relation to Medium-term stream applicants, the required test scores for a PTE English language test are:

   a)an overall band score of at least 36; and,

   b)a score of at least 36 for each test component of the PTE. 

7. On 17 August 2019, the Tribunal received a copy of Mr Avila Borja’s PTE Academic score report dated 16 August 2019.  The results of his PTE test indicate he scored 39 for Listening, 40 for Reading, 36 for Speaking and 42 for Writing with an Overall Score of 39.  The Tribunal has independently verified the results of this test.

8. Given the above, the Tribunal is satisfied that Mr Avila Borja has achieved at least the minimum specified scores in a PTE test and therefore satisfies the requirements of cl.482.232 of Schedule 2 to the Regulations.

9. In light of the new evidence received, the Tribunal is satisfied that the matter should be remitted for reconsideration.

   DECISION

10. The Tribunal remits the application for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl.482.232 of Schedule 2 to the Regulations

    Katie Malyon

    
    Member