Pappalardo (Migration)

[2019] AATA 176

Pappalardo (Migration) [2019] AATA 176 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Giuseppe Domenico Pappalardo
Ms Tatyana Kaganets
Mr Giulio Cateno Pappalardo

CASE NUMBER:  1833143

DIBP REFERENCE(S):  BCC2018/3824154

MEMBER:Wan Shum

DATE:17 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.482.232 of Schedule 2 to the Regulations.

Statement made on 17 January 2019 at 3:24pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) – Subclass 482 (Temporary Skill Shortage ) – Medium Stream – English language proficiency – test taken within timeframe – satisfies requirements – decision remitted for reconsideration

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 of a delegate of the Minister for Immigration to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) (subclass 482) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the Subclass 482 visas on 19 June 2018.

3. The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The applicants are seeing the Temporary Skill Shortage visa in the Medium Term stream.

4. The delegate refused to grant the visas on 23 October 2018 on the basis that cl.482.232 was not met because the applicant had not demonstrated that he satisfies the English language test and score requirements.

5. The applicants sought review of that decision and were represented in relation to the review by a registered migration agent.

6. On 27 November 2018, the Tribunal received a submission from the representative with a copy of the applicant’s IELTS test results for a test taken on 27 October 2018.

7. Having regard to the new information provided, a hearing was not necessary as the Tribunal was able to remit the matter for reconsideration on the information before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the English language requirements for a Subclass 482 visa in the medium stream. The requirements are set out in cl.482.232 and can be met if 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 (cl.482.232(1)), or if the Minister requires the applicant to demonstrate his or her English language proficiency, the applicant does so in the manner specified by the Minister (cl.482.232(2)).

9. The relevant instrument for the purposes of cl.482.232(1), IMMI 18/032, requires that the applicant provide evidence that he took an approved English language test and achieved the required test scores in a single attempt at that test unless he is an exempt applicant. Furthermore, the day when the test was done must not be more than 3 years of the day the evidence was provided.

10. The applicant provided evidence to the Department of having arranged to sit for an IELTS test on 27 October 2018. A decision was made on his case prior to the test date based on the results of an IELTS test from an earlier date, in which he did not achieve the minimum scores of 5 in each test component. The Tribunal has been provided with a test results for an IELTS test on 27 October 2018 in which he achieved 5 in the listening and speaking components, and 5.5 in reading and writing components. These meets the minimum scores for an IELTS test in each of the test components (being 5.0 in each component).

11. As to the test being provided after the visa application was made, the wording used in the instrument requires that the test day is not more than 3 years before the day on which the applicant provided evidence that they achieved the required test scores for the approved English language test. There is nothing in the wording of cl.482.232 which requires the test be taken prior to the visa application and, as it is a time of decision criterion, it appears to the Tribunal that the applicant may take a test after the date of visa application. The policy guidelines relevantly state that “the scores must have been achieved in a single attempt at the test and the test must have been completed within 3 years of the valid visa application lodgement date”.

12. On the information before the Tribunal, the applicant satisfies the requirements of cl.482.232(1) and therefore cl.482.232.

13. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

14. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.482.232 of Schedule 2 to the Regulations.

    Wan Shum
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    (a)each of the following applies:

    (i)    a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;

    (ii)     the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;

    (iii)    the approval of the nomination has not ceased as provided for in regulation 2.75; and

    (aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and

    (ba)either:

    (i)    the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or

    (ii)     each of the following applies:

    (A)the applicant is employed to work in the nominated occupation;

    (B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;

    (C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and

    (d)the Minister is satisfied that:

    (i)    the applicant’s intention to perform the occupation is genuine; and

    (ii)     the position associated with the nominated occupation is genuine; and

    (da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and

    (e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    the applicant:

    (iv)   has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and

    (v)    achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and

    (ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and

    (f)either:

    (i)    there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or

    (ii)     it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.

    …

    (6)This subclause applies to an applicant if:

    (a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and

    (b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

    …

    (11)In subclause (4):

    exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.