Bombaro (Migration)

[2019] AATA 2555

Bombaro (Migration) [2019] AATA 2555 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Giovanni Bombaro
Miss Heloise Navecth

CASE NUMBER:  1831084

DIBP REFERENCE(S):  BCC2018/3096987

MEMBER:Karen McNamara

DATE:13 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 482 visa:

·cl.482.232(1) of Schedule 2 to the Regulations.

Statement made on 13 June 2019 at 2:30pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482– applicant achieved the required test score on the IELTS test – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 on 12 October 2018 to refuse to grant the visa applicant a GK – Temporary Skill Shortage (Class GK) Subclass 482 visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Giovanni Bombaro (the first named applicant) applied for the visa on 16 August 2018. On 12 October 2018, the delegate refused to grant the visa on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On review, the Tribunal received a copy of the applicant’s IELTS test results for a test taken on 19 May 2019.

4. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review. The Tribunal has therefore made a decision on the papers before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets cl.482.232(1).

   English language proficiency

7. Clause 482.232(1) is met if the applicant satisfies any language test requirements specified for the applicant by the Minister in the relevant legislative instrument.

8. The relevant instrument in this case is IMMI 18/032, which relevantly requires the applicant to provide evidence that they sat an approved English language test and achieved the required test scores in a single attempt at that test, unless they are an exempt applicant. The test must not be more than 3 years before the day on which the evidence was provided.

9. In relation to an IELTS language test, the instrument provides that, for a Subclass 482 visa in the medium-term stream, the scores required are an overall band score of at least 5.0 and a score of at least 5.0 in each component of the test.

10. In this case, the applicant applied for the visa in the medium-term stream. The Tribunal has received the IELTS test report for an IELTS test undertaken by the applicant on 19 May 2019 in which he achieved the following scores: 5.5 overall, 5.5 in reading and writing, 5.0 in speaking and listening. The report has been verified online.

11. As the applicant has sat an approved language test on a particular day and has achieved the required test score on the IELTS test in a single attempt at the test and the test day was not more than 3 years before the day on which he provided evidence of having achieved the required test score, the applicant meets cl.482.232(1).

12. The Tribunal finds that the requirement in cl.482.232(1) has been met.

13. Miss Heloise Navecth applied on the basis of being a member of the family unit of the first named applicant. The application by Miss Heloise Navecth will be determined by reference to the outcome of Mr Giovanni Bombaro’s application on remittal to the Department for consideration.

14. Given the findings above, the appropriate course is to remit the application to the Minister to consider the remaining criteria for the grant of the visa.

    DECISION

15. The Tribunal remits the application for reconsideration, with the direction that the applicants meet the following criteria for a Subclass 482 visa:

    ·cl.482.232(1) of Schedule 2 to the Regulations

    Karen McNamara
    Member