Botos (Migration)

[2023] AATA 1175

Botos (Migration) [2023] AATA 1175 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Balazs

Botos

Ms Mercedesz Csik

REPRESENTATIVE:  Ms Cristina Desiree Clear (MARN: 2015781)

CASE NUMBER:  2302706

HOME AFFAIRS REFERENCE(S):          BCC2022/2435922

MEMBER:Alan McMurran

DATE:1 May 2023

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations; and

The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 482 visa:

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 01 May 2023 at 1:45pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – motor mechanic – English language proficiency – specified test results provided to tribunal and verified with testing centre – member of family unit – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 482.232(1), 482.312

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 8 February 2023 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 29 June 2022. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage).

3. 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 Motor Mechanic (General).

4. 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 had not produced sufficient evidence that he meets the English language requirements.

5. The applicant has produced information for the Tribunal following a request made to provide evidence that the applicant meets the English language requirements. He was requested to provide a response by 17 April 2023. On 13 April 2023, the applicant provided language testing results for a PTE test conducted on 12 April 2023, and which the Tribunal has since verified with the testing centre.

6. As a result, the Tribunal has found it can determine the review favourably and without a hearing.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant satisfies any language test requirements as specified.

   English language proficiency

10. 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.

11. The relevant instrument for cl 482.232(1) is IMMI18/032. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

12. The applicants in this case are not exempt from the requirements and the applicant must meet the language test requirements specified in the instrument.

13. The Tribunal finds that the applicant has provided evidence of his PTE score report ( test date:12 April 2023) indicating an overall score of 42 and a score of at least 38 for each test component of the PTE and which meets the minimum score requirements for the English language test.

14. For these reasons, the applicant meets the requirements of cl 482.232.

    Secondary applicant

15. The Tribunal finds that the second named applicant, Ms Mercedesz Csik, is a member of the family unit of the primary applicant. Cl 482.312 requires that the second named applicant is a member of the family unit of the applicant who now meets the English language criterion for the visa.

16. As a result, the appropriate course is to remit the second named applicant’s application with the primary applicant for reconsideration.

    Conclusion

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

    DECISION

18. 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 of Schedule 2 to the Regulations; and

    The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the second named applicant meets the following criteria for a Subclass 482 visa

    ·cl 482.312 of Schedule 2 to the Regulations.

    Alan McMurran
    Member