Gonzales (Migration)

[2020] AATA 4081

Gonzales (Migration) [2020] AATA 4081 (24 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Steeve Gonzales

CASE NUMBER:  2006139

HOME AFFAIRS REFERENCE(S):          BCC2020/6576

MEMBER:R.Skaros

DATE:24 September 2020

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 of Schedule 2 to the Regulations.

Statement made on 24 September 2020 at 11:23am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – medium-term stream – English language proficiency – evidence of satisfactory test result provided to tribunal – 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 10 March 2020 to refuse to grant the visa applicant a Temporary Skill Shortage (Class GK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 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 (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 Motor Mechanic (General) - 321211.

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 of Schedule 2 to the Regulations because the applicant did not provide evidence to demonstrate that he satisfied the language test specified by the Minister.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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. For applicants who have applied for a Subclass 482 Visa in the Medium-term Stream and who undertake an IELTS test, the required score is at least 5.0 in each of the components of the test and 5.0 overall.

8. In this case, the applicant provided an IELTS test dated 26 October 2019 to the Department showing that he achieved 4.5 for Listening, 3.0 for Reading, 5.5 for Writing, 5 for Speaking and an overall band score of 4.5. The scores did not demonstrate that the applicant satisfied the specified language test and the delegate concluded the applicant did not meet cl.482.232.

9. On 8 September 2020 the Tribunal received a copy of the applicant’s IELTS Test Report Form dated 28 August 2020. The applicant’s test results are 6.0 for Listening, 5.5 for Reading, 5.5 for Writing, 6.5 for Speaking and an overall band score of 6. These results have been verified.

10. Accordingly, the Tribunal finds that the applicant achieved in a single day the required test score in the specified time. There is nothing to indicate that the Minister has otherwise required the applicant to demonstrate his English proficiency in another manner. For these reasons, the applicant meets the requirements of cl.482.232.

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 of Schedule 2 to the Regulations.