Partipilo (Migration)

[2023] AATA 128

Partipilo (Migration) [2023] AATA 128 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Chiara Partipilo

REPRESENTATIVE:  Mrs Simone Louise  Kearney (MARN: 1173899)

CASE NUMBER:  2216781

HOME AFFAIRS REFERENCE(S):          BCC2022/2662934

MEMBER:Alison Mercer

DATE:10 January 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 applicant meets the following criteria for a subclass 482 visa:

·cl 482.223 of Schedule 2 to the Regulations.

Statement made on 10 January 2023 at 10:55am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – English language proficiency requirements – qualifying IELTS test results provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 482.223

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 2 November 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 applicant applied for the visa on 13 July 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 applicant is seeking the visa in the Short-term stream to work in the nominated occupation of Hairdresser.

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 482.223 of Schedule 2 to the Regulations because she did not satisfy the applicable English language proficiency requirements. The delegate acknowledged that the applicant provided an International English Language Testing System (IELT) test form, but found that the applicant obtained 3.5 in 1 of the 4 test components, when the minimum score prescribed for each component was 4.5. The delegate found that the applicant did not meet cl.482.223(1) and thus did not meet cl.482.223 as a whole.

4. The Tribunal received a review application from the applicant on 16 November 2022. It was accompanied by a copy of the delegate’s decision. On 13 December 2022, the applicant and her agent provided a new IELTS test form, issued to the applicant on 4 December 2022, stating that she obtained scores of 5.5 for listening, 4.5 for reading, 5.0 for writing and 6.0 for speaking (overall band score of 5.5) in a test she undertook on 29 November 2022.

5. The Tribunal has independently verified that these results are genuine, using the IELTS online verification website.

6. 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 section 360(2)(a) of the Act.

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

   CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

   English language proficiency

8. Clause 482.223(1) requires the applicant to satisfy any language test requirements specified for the applicant in an instrument. Clause 482.223(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.

9. The relevant instrument for cl 482.223(1) is IMMI 18/032. This instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

10. The Tribunal is satisfied that the applicant is not exempt under the terms of IMMI 18/032. Item 5 of the instrument states that the required test scores for an IELTS test are (a) an overall band score of at least 5.0; and (b) a score of at least 4.5 for each test component.

11. As noted above, the applicant has now provided an IELTS test (undertaken on 29 November 2022) that meets the above requirements, and is not more than 3 years old. The Tribunal has independently verified these results as genuine.

12. For these reasons, the applicant meets the requirements of cl 482.223(1) and thus meets cl.482.223 as a whole (as there is no evidence that she was requested to provide evidence of her English proficiency under cl.482.223(2)).

13. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    decision

14. 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 482.223 of Schedule 2 to the Regulations.

    Alison Mercer
    Member