Song (Migration)

[2020] AATA 5015

Song (Migration) [2020] AATA 5015 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Ms Lakyoung Song

Mr Sechang Lee

Miss Jiwoo Lee

CASE NUMBER:  2005710

HOME AFFAIRS REFERENCE(S):          BCC2020/1055135

MEMBER:R. Skaros

DATE:10 September 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

·cl.482.232 of Schedule 2 to the Regulations.

Statement made on 10 September 2020 at 5:28pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – occupation of Food Technologist – English language proficiency – IELTS Test result – 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 16 March 2020 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 7 March 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 (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 first named applicant (the applicant) is seeking the visa in the Medium-term stream to work in the nominated occupation of Food Technologist (ANSZCO 234212).

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 provide evidence that they satisfied the English language test specified by the Minister.

4. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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. For applicants who have applied for a Subclass 482 Visa in the Medium-term Stream and who undertake an IELTS test, the required score is at least 5.0 in each of the components of the test and 5.0 overall.

8. In this case the applicant provided the Department with an IELTS Test Result Form dated 11 January 2020 showing that she achieved a score of 5 for listening, 4.5 for reading, 5 for writing, 4.5 for speaking and an overall band score of 5. As the applicant did not achieve at least a 5 in each component of the test, the delegate found that she did not meet cl.482.232 of the Regulations.

9. In a submission dated 14 July 2020 the applicant provided the Tribunal a copy of her IELTS Test Report Form dated 20 June 2020. The applicant’s test results are 5 for Listening, 5 for Reading, 5.5 for Writing, 5 for Speaking and an overall band score of 5. These results have been verified. There is no evidence to indicate that the Minister has requested the applicant to demonstrate her English language proficiency in any other manner. Accordingly, the Tribunal finds that the visa applicant achieved in a single day the required test score in the specified time.  For these reasons, the applicant meets the requirements of cl.482.232.

10. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa for the first, second and third named applicants.

    DECISION

11. The Tribunal remits the applications for Temporary Skill Shortage (Class GK) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 482 visa:

    ·cl.482.232of Schedule 2 to the Regulations.

    R.Skaros
    Senior Member