Tyulpinov (Migration)

[2020] AATA 5016

Tyulpinov (Migration) [2020] AATA 5016 (26 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  

Mr Roman Tyulpinov

Mrs Irina Tyulpinova

Mr Alexey Tyulpinov

CASE NUMBER:  2001181

HOME AFFAIRS REFERENCE(S):          BCC2019/5237842

MEMBER:R. Skaros         

DATE:26 November 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.482.232 of Schedule 2 to the Regulations.

Statement made on 26 November 2020 at 4:11pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Wall and Floor Tiler – English language proficiency – IELTS test report – minimum required score achieved – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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 3 January 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 18 October 2019. 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 Wall and Floor Tiler (ANZSCO 333411) .

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.482.232 because he did not provide evidence that he satisfied the specified English language test requirements.

4. The Tribunal did not conduct a hearing in this matter as it was able to find in favour of the applicants on the basis of the evidence before it.

5. The applicants were represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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 an overall band score of 5.0.

9. In this case, the applicant advised the Department that he had booked a PTE exam for 28 October 2019 and an IELTS test for 28 November 2019. However, the applicant did not provide the results for either exam. The delegate was therefore not satisfied the applicant met the requirements of cl.482.232.

10. The applicant has now provided the Tribunal with a copy of an IELTS test report form dated 4 October 2020. This shows that the applicant achieved the following results; 5.0 for listening; 5.0 for reading; 5.0 for writing; 5.5 for speaking; and an overall band score of 5.0.

11. Accordingly, the Tribunal finds that the applicant achieved in a single day the required test score in the specified time. There is nothing to indicate that the Minister has otherwise required the applicant to demonstrate his English proficiency in another manner.

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

13. Given these findings, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visas in respect of the first, second and third named applicants.

    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.482.232 of Schedule 2 to the Regulations.

    R. Skaros
    Senior Member