Dal Cengio (Migration)

[2020] AATA 4013

Dal Cengio (Migration) [2020] AATA 4013 (6 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Giulio Dal Cengio

CASE NUMBER:  1914761

HOME AFFAIRS REFERENCE(S):          BCC2019/624421

MEMBER:R. Skaros

DATE:6 August 2020

PLACE OF DECISION:  Sydney

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

·cl.482.223 of Schedule 2 to the Regulations.

Statement made on 06 August 2020 at 1:53pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – Hairdresser – English language proficiency – PTE Academic test undertaken – required test score achieved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.223

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 27 May 2019 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 February 2019. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). 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 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Hairdresser (ANZSCO 391111).

3. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl.482.223(1) of Schedule 2 to the Regulations because he did not provide evidence that he satisfied the English language requirement specified by the Minister.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

5. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 482.223(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.223(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.

8. The relevant instrument for cl.482.223(1) is IMMI 18/032. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements. For applicants who have applied for a Subclass 482 visa in the Short-term stream and who undertake a PTE test, the required score is an overall band score of at least 36 and a score of at least 30 for each test component.

9. On 11 March 2019 the Department requested the applicant provide evidence of a suitable English language test or to demonstrate that he had booked such a test. On 26 March 2019 the applicant provided evidence that he had booked a PTE Academic test to be taken on 8 April 2019; However, the applicant did not provide the results of this test to the Department and the delegate found that he did not meet the requirements of cl.482.223(1).

10. On 23 July 2020 the applicant provide the Tribunal a copy of his PTE test dated 22 June 2020. The result showed that the applicant achieved a score of 33 for listening, 39 for reading, 39 for speaking and 39 for writing. He achieved an overall score of 37. The Tribunal verified this test.

11. Accordingly, the Tribunal finds that the applicant achieved in a single day the required test score in the specified time. There is nothing to indicate that the Minister has otherwise required the applicant to demonstrate his English proficiency in another manner. For these reasons, the applicant meets the requirements of cl.482.223.

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

    DECISION

13. The Tribunal remits the application for a Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 482 visa:

    ·cl.482.223 of Schedule 2 to the Regulations.

    R.Skaros
    Senior Member