Thammawan (Migration)

[2020] AATA 515

Thammawan (Migration) [2020] AATA 515 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Miss Adchariyarat Thammawan

Miss Kwanruthai Pasurawatkul

CASE NUMBER:  1928903

HOME AFFAIRS REFERENCE(S):          BCC2019/4005400

MEMBER:R. Skaros

DATE:21 February 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 applicants meets the following criteria for a Subclass 482 visa:

·cl.482.223(1) of Schedule 2 to the Regulations.

Statement made on 21 February 2020 at 2:02pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Short-term stream – English language proficiency – IELTS language test – minimum required score – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 10 October 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).The applicants applied for the visas on 13 August 2019.

2. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On review, the Tribunal received a copy of the first named applicant’s (‘the applicant’) IELTS test results for a test taken on 1 February 2020.

4. In light of the new evidence received, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the applicant meets cl.482.223(1).

   English language proficiency

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

7. The relevant instrument for cl.482.223(1) is IMMI 18/032, which relevantly requires the applicant to provide evidence that they sat an approved English language test and achieved the required test scores in a single attempt at that test, unless they are an exempt applicant. The test must not be more than 3 years before the day on which the evidence was provided. Furthermore, the day when the test was done must not be more than 3 years of the day the evidence was provided.

8. In relation to an IELTS language test, the instrument provides that, for a Subclass 482 visa in the short-term stream, the scores required are an overall band score of at least 5.0 and a score of at least 4.5 in each component of the test.

9. In this case, the applicant applied for the visa in the short-term stream. The Tribunal has received the IELTS test report for an IELTS test undertaken by the applicant on 1 February 2020 in which she achieved the following scores: 5.0 overall, 5.5 in listening, 4.5 in reading and 5.0 in speaking and writing. The report has been verified.

10. As the applicant has sat an approved language test on a particular day and has achieve the required test score on the IELTS test in a single attempt at the test and the test day was not more than 3 years before the day on which she provided evidence of having achieved the required test score, the applicant meets cl.482.223(1).

11. The Tribunal finds that the requirement in cl.482.223(1) has been met.

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

13. In relation to the second named applicant, the Tribunal notes that the Department refused her application on the basis that she was not a member of the family unit of a person that holds a relevant visa. The Tribunal notes that on remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will reconsider the second named applicant’s eligibility for the visa.

    DECISION

14. 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.482.223(1) of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member