Monzalvez Delgado (Migration)

[2023] AATA 2601

Monzalvez Delgado (Migration) [2023] AATA 2601 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ronald Dante Monzalvez Delgado
Ms Carola Francisca Fernanda Gutierrez Jaramillo

REPRESENTATIVE:  Mr Patrick Douglas

CASE NUMBER:  2305136

HOME AFFAIRS REFERENCE(S):          BCC2022/576954

MEMBER:Wan Shum

DATE:17 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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

Statement made on 17 July 2023 at 11:16am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Bricklayer – English language requirements – PTE Academic Score Report provided upon review – 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 to refuse to grant the applicants GK – Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants applied for the visas on 8 March 2022. The delegate refused to grant the visas on 23 March 2023.

2. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl 482.232(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the English language requirements for the visa were not met.

3. The applicants sought review of that decision and were represented by the person named on the front page of this decision.

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

5. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. In this case, the applicant is seeking the Subclass 482 visa in the Medium-term stream to work in the nominated occupation of Bricklayer.

7. The issue on review is whether the English language proficiency requirements for a Subclass 482 visa in the Medium-term stream are now met. 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) is IMMI 18/032: Language Test Requirements—Subclass 482 Visa. This is the same instrument which applied at the time of the delegate’s decision and sets out the English language test requirements, as well as persons who are exempt from these requirements. The applicant is not an exempt applicant and is required to meet the language test requirements specified in the instrument.

9. On 15 June 2023 the Tribunal received a copy of the applicant’s PTE Academic Score Report for a test taken on 9 June 2023. Based on this evidence, the applicant has achieved an overall band score above 36 and more than the minimum score of 36 in each of the four test components in a single test. Given this, the applicant now satisfies the specified language test requirements and meets cl 482.232(1).

10. The Tribunal concludes that the matter should be remitted for reconsideration to the Department to consider the applicants against the remaining criteria for the visa.

    DECISION

11. The Tribunal remits the application 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 of Schedule 2 to the Regulations

    Wan Shum
    Member