FAJARDO SUAREZ (Migration)

[2023] AATA 1896

FAJARDO SUAREZ (Migration) [2023] AATA 1896 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Luz

Mireya FAJARDO SUAREZ

Mr Roberto Bustillo Martinez
Miss

Maegan Bustillo

Miss Stephanie Bustillo

REPRESENTATIVE:  Mr Kris Ahn

CASE NUMBER:  2306815

HOME AFFAIRS REFERENCE(S):          BCC2022/4914937

MEMBER:Angela Julian-Armitage

DATE:19 June 2023

PLACE OF DECISION:  Brisbane

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

·cl 482.223 of Schedule 2 to the Regulations; and

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 19 June 2023 at 8:19am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Provisional) (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – English language proficiency – Pearson PTE English Language test result provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 482.223, 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 17 May 2023 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 18 November 2022. 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 Short-term stream to work in the nominated occupation.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy the requirements of cl 482.223 of Schedule 2 to the Regulations because there was no evidence that the visa applicant had the requisite English language proficiency.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

5. Clause 482.223(1)in Schedule 2 of the Regulations 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.

6. The relevant instrument for cl 482.223(1) sets out the English language test requirements, as well as applicants who are exempt from these requirements.

7. In the present case, the Tribunal has been furnished with a certificate evidencing that the visa applicant undertook a Person PTE English Language test on 23 February 2023 and attained the overall band score of 42 (the minimum requirement being an overall score of 36).

8. For this reason, the applicant meets the requirements of cl 482.223 and as the secondary applicants are members of the applicant’s family unit, they meet the requirements of cl 482.312 of Schedule 2.

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

   Decision

10. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant and the secondary applicant meet the following criteria for a Subclass 482 visa:

    ·cl 482.223 of Schedule 2 to the Regulations; and

    ·cl 482.312 of Schedule 2 to the Regulations.

    Angela Julian-Armitage

    
    

    Member