Fikiris Enterprises Pty Ltd (Migration)

[2023] AATA 706

Fikiris Enterprises Pty Ltd (Migration) [2023] AATA 706 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Fikiris Enterprises Pty Ltd

VISA APPLICANT:  Mr Jeffrey Nudalo

REPRESENTATIVE:  Mrs Geroselene Francisco Glico-Kovarskis (MARN: 2015041)

CASE NUMBER:  2216747

HOME AFFAIRS REFERENCE(S):          BCC2022/1044487

MEMBER:Nicole Burns

DATE:8 March 2023

PLACE OF DECISION:  Melbourne

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

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

Statement made on 08 March 2023 at 3:19pm

CATCHWORDS
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482–  evidence of English language ability provided – applicant achieved the required test scores in an approved test – decision under review remitted   

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 28 October 2022 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 visa applicant applied for the visa on 15 March 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 visa applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Welder (First Class), sponsored by Fikiris Enterprises Pty Ltd.

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

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded 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 visa 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 visa 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 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 4 February 2023 in which he achieved the overall band score of 5.5 and 5.0 or more in each of the four 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 visa applicant meets the following criteria for a Subclass 482 visa:

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

    Nicole Burns
    Member