Jaiwongpan (Migration)

[2024] AATA 3726

Jaiwongpan (Migration) [2024] AATA 3726 (28 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanat Jaiwongpan

REPRESENTATIVE:  Ms Kirsty Ann Ross (MARN: 1684817)

CASE NUMBER:  2414352

HOME AFFAIRS REFERENCE(S):          BCC2023/7450376

MEMBER:Antonio Dronjic

DATE:28 August 2024

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 applicant meets the following criteria for a Subclass 482 visa:

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

Statement made on 28 August 2024 at 11:24am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 – Medium-term stream – Chef – Tribunal received Pearson (PTE Academic) test results – English language requirements met – decision under review remitted    

LEGISLATION
Migration Act 1958, ss 65, 360
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 15 May 2024 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 21 December 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 Chef.

3. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

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 applicants on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   English language proficiency

5. 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.

6. 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.

7. On 19 June 2024 the Tribunal received Pearson (PTE Academic) test results undertaken by the applicant on 14 June 2024 evidencing the following results:

   Listening 39
   Reading 45
   Writing 42
   Speaking 40
   Overall Band Score 42

8. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

   DECISION

9. 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.

   Antonio Dronjic
   Member