Chan (Migration)

[2019] AATA 5094

Chan (Migration) [2019] AATA 5094 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pui King Chan

CASE NUMBER:  1919432

DIBP REFERENCE(S):  BCC2019/1644141

MEMBER:Katie Malyon

DATE:23 August 2019

PLACE OF DECISION:  Sydney

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

·cl.482.232 of Schedule 2 to the Regulations

Statement made on 23 August 2019 at 1:51 pm

CATCHWORDS

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 applicant, Mr Pui King Chan, a Class GK Subclass 482 Temporary Skill Shortage visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Chan is a national of the Hong Kong Special Administrative Region of the People’s Republic of China. He applied for the visa on 2 April 2019. 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.  Mr Chan applied for the visa in the Medium-term stream  

3. Mr Chan did not, at the time of application, demonstrate that he met the English language requirement and, despite being given additional time by the delegate to provide evidence of his English language proficiency, he did not do so. The delegate refused to grant the visa on 4 July 2019 on the basis that evidence of Mr Chan’s English language ability was not provided as required to satisfy cl.482.232 of Schedule 2 to the Regulations. A copy of the delegate’s decision was provided to the Tribunal.

4. Mr Chan was represented in relation to the review by his registered migration agent.

5. 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 Mr Chan’s favour on the basis of material before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Chan 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.

7. 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. 

8. On 18 July 2019, the Tribunal received from Mr Chan’s representative a copy of Mr Chan’s PTE Academic score report dated 9 July 2019.  The results of Mr Chan’s PTE test indicate he scored 36 for Listening, 38 for Reading, 36 for Speaking and 41 for Writing with an Overall Score of 40.  The Tribunal has independently verified the results of this test.

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

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

    DECISION

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

    ·cl.482.232 of Schedule 2 to the Regulations

    Katie Malyon

    
    Member