Phromrungcharoen (Migration)

[2024] AATA 641

Phromrungcharoen (Migration) [2024] AATA 641 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thanawat

Phromrungcharoen

Mrs Suthida Promrungcharoen

REPRESENTATIVE:  Mrs Jaleh Johannessen

CASE NUMBER:  2109696

HOME AFFAIRS REFERENCE(S):          BCC2020/1376340

MEMBER:Michael Cooke

DATE:26 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visa.

Statement made on 26 March 2024 at 12:19pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – short-term stream – vegetable grower – English language proficiency – no evidence provided to department – no attendance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 368
Migration Regulations 1994 (Cth), 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 12 July 2021 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 16 April 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 (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 primary visa applicant (the applicant) is seeking the visa in the Short-term stream to work in the nominated occupation of Vegetable Grower -121221.

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 the applicant test did not provide results nor any other evidence of English language ability to the Department – despite various requests.

4. The applicants were scheduled to appear before the Tribunal on 26 March 2024 to give evidence and present arguments. The Tribunal received advice from their representative that the applicants would not be attending the scheduled hearing.

5. As the applicants did not attend a scheduled hearing, the Tribunal will proceed to finalize the decision pursuant to s 362B of the Act.

6. The Tribunal will by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

7. The applicants were represented in relation to the review.

8. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the primary applicant can meet the criterion in clause 482.223(1) of the regulations.

   English language proficiency

10. 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.

11. 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.

    Findings and reasons about whether the applicant:

    ·is an exempt applicant, as defined in the relevant Instrument; and if not

12. The Tribunal finds that the primary applicant is not an exempt applicant.

    ·meets the language test requirements specified in the Instrument, e.g. whether they achieved in a single day the required test score in the specified time.

13. The Tribunal finds no evidence has been provided (despite granting extensions of time) that the primary applicant meets the language test requirements specified in the Instrument.

14. For these reasons, the applicant does not meet the requirements of cl 482.223.

15. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Temporary Skill Shortage (Class GK) visas.

    Michael Cooke
    Senior Member