Faso (Migration)

[2024] AATA 279

Faso (Migration) [2024] AATA 279 (24 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Naomi Faso

REPRESENTATIVE:  Mr Riccardo Ippoliti (MARN: 1386990)

CASE NUMBER:  2317871

HOME AFFAIRS REFERENCE(S):          BCC2023/5825092

MEMBER:De-Anne Kelly

DATE:24 January 2024

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 meets the following criteria for a Subclass 482 visa:

·cl 482.232(1) of Schedule 2 to the Regulations and

·cl 482.232 of Schedule 2 to the Regulations.

Statement made on 24 January 2024 at 8:47am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Agricultural Technician – English language proficiency – IELTS – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 Home Affairs on 17 October 2023 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 October 2023. 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 Agricultural Technician.

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 482.232(1) and 482.232 of Schedule 2 to the Regulations because the applicant had failed to achieve the prescribed test result in a prescribed English test within three years of the valid visa lodgement date.

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) which provides as follows.

   482.232
   (1) The applicant satisfies any language test requirements specified for the applicant by the
   Minister in a legislative instrument made for the purposes of this subclause.

   English language proficiency

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) sets out the English language test requirements, as well as applicants who are exempt from these requirements.

9. One of the English prescribed tests is an IELTS test which requires the results shown in the table below and under that the actual results achieved by the applicant in a test taken on 11 December 2023 and thus within the prescribed time period of three years from the date of the visa application being 10 October 2023. The applicant has achieved the required scores.

Modules	Listening	Reading	Speaking	Writing	Overall
IELTS	5.0	5.0	5.0	5.0	5.0
Applicant	5.0	5.5	5.0	5.5	5.5

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

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

   DECISION

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

   ·cl 482.232(1) of Schedule 2 to the Regulations; and

   ·cl 482.232 of Schedule 2 to the Regulations.

   De-Anne Kelly
   Member