El Khoury (Migration)

[2023] AATA 163

El Khoury (Migration) [2023] AATA 163 (30 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bilal El Khoury

REPRESENTATIVE:  Dr Mahmoud Ajjawi (MARN: 9900118)

CASE NUMBER:  2105078

HOME AFFAIRS REFERENCE(S):          BCC2020/1085261

MEMBER:Wan Shum

DATE:30 January 2023

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 482.232(1) of Schedule 2 to the Regulations.

Statement made on 30 January 2023 at 10:27am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – carpenter – English language proficiency – approved test report provided to tribunal – required test scores achieved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 482.232(1)

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 13 April 2021 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 March 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Carpenter.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not provide evidence that the applicant satisfies the English language test and score requirements for subclause 482.232(1).

4. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant satisfies cl 482.232(1).

7. 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.

8. The relevant instrument for cl 482.232(1) is IMMI 18/032: Language Test Requirements—Subclass 482 Visa. This is the same instrument which applied at the time of the delegate’s decision. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

9. On review, the applicant has provided a test report for an IELTS test taken on 27 December 2022 in which achieved the overall band score of 6.0 and 6.0 or more in each of the test components. This means that he achieved the required test scores in an approved test.

10. For these reasons, the applicant meets the requirements of cl 482.232(1).

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

    decision

12. 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 482.232(1) of Schedule 2 to the Regulations.

    Wan Shum
    Member