Sarmiento (Migration)

[2024] AATA 529

Sarmiento (Migration) [2024] AATA 529 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bienvenido Agustin Sarmiento

REPRESENTATIVE:  Mr Deepak Kumar Agrawal (MARN: 1464159)

CASE NUMBER:  2115365

HOME AFFAIRS REFERENCE(S):          BCC2020/2455850

MEMBER:Michael Cooke

DATE:8 March 2024

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations

Statement made on 08 March 2024 at 12:00pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Panelbeater – English language requirements – IELTS Test Score Report provided upon review – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
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 21 October 2021 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 12 October 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 applicant is seeking the visa in the Medium-term stream to work in the nominated occupation of Panelbeater - 324111.

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 482.232 of Schedule 2 to the Regulations because the applicant did not satisfy the language testing requirements for the visa.

4. The applicant’s representative has forwarded the applicant’s latest IELTS test results to the Tribunal. The Tribunal has had them officially verified.

5. On 22 May 2022 the applicant performed an IELTS test and gained the following marks:

   6.0 Overall Band

   6.5 Listening

   5.5 Reading

   6.0 Writing

   6.0 Speaking

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant can meet the language testing requirements.

   English language proficiency

9. 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.

10. The relevant Instrument for cl 482.232(1) is IMMI 18/032. This Instrument sets out the English language test requirements, as well as applicants who are exempt from these requirements.

11. The Tribunal finds from the available evidence that the applicant has meet both the minimum individual and overall required IELTS band scores (being 5.0).

12. The Tribunal finds that the applicant now meets the language test requirements specified in the Instrument, having achieved in a single day the required test score in the specified time.

13. For these reasons, the applicant meets the requirements of cl 482.232.

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

    DECISION

15. 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 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member