Dos Santos Coelho (Migration)

[2024] AATA 539

Dos Santos Coelho (Migration) [2024] AATA 539 (12 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daniel

Dos Santos Coelho

Mrs Vania Alexandra Gomes Moreira

Mr Diogo Moreira Coelho

CASE NUMBER:  2113317

HOME AFFAIRS REFERENCE(S):          BCC2020/2372294

MEMBER:SM Michael Cooke

DATE:12 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 12 March 2024 at 11:58am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Plasterer – English language requirements – no further evidence provided upon review – decision under review affirmed       

LEGISLATION

Migration Act 1958, s 65
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 Home Affairs on 20 September 2021 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 26 September 2020. 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 (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 Plasterer.

3. The delegate in this case refused to grant the visa on the basis that the primary visa applicant did not satisfy the requirements of cl 482.232(1) of Schedule 2 to the Regulations because he did not satisfy any language test requirements specified for the applicant in an Instrument.

4. The applicants were invited to appear before the Tribunal at a scheduled hearing on 13 March 2024 to give evidence and present arguments. The Tribunal was requested by their representative to finalize the case by deciding the matter ‘on the papers’. The Tribunal agreed to the applicants’ request.

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

6. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant can satisfy any language test requirements specified for the applicant in an Instrument.

   English language proficiency

8. 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.

9. The relevant Instrument for cl 482.232(1) is IMMI 18/032. This Instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

10. The applicants did not provide any evidence relevant to the requirements of subclause 482.232(1) with their application according to the delegate’s decision (tendered by the applicant).

11. Subsequently, the Tribunal requested the applicant to provide it with evidence that he could satisfy the language requirements. None has been provided at time of writing.

    Findings and reasons about the applicant:

    ·The applicant is not an exempt applicant, as defined in the relevant Instrument; and

    ·The applicant does not meet the language test requirements specified in the Instrument.

12. For these reasons, the applicant does not meet the requirements of cl 482.232.

13. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Michael Cooke
    Senior Member