Xue (Migration)

[2023] AATA 3336

Xue (Migration) [2023] AATA 3336 (8 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xueyi

Xue

Mrs Meiqin Yu
Mr Wanjian

Xue

Mr Wankang Xue

REPRESENTATIVE:  Mr Bo Liu (MARN: 1461856)

CASE NUMBER:  2202406

HOME AFFAIRS REFERENCE(S):          BCC2018/3152058

MEMBER:George Hallwood

DATE:8 September 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 08 September 2023 at 2:47pm

CATCHWORDS 
MIGRATION –Temporary Skill Shortage (Class GK) visa – Subclass 482– Medium-term stream – Stonemason – applicant is not exempt from satisfying the language test requirements – applicant failed to meet the prescribed level of English language proficiency – decision under review affirmed

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 8 February 2022 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 21 August 2018. 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 Medium-term stream to work in the nominated occupation of Stonemason - 331112.

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 they were not satisfied that the evidence demonstrated that the applicant satisfies the English language test and score requirements for subclause 482.232(1).

4.    The applicants appeared before the Tribunal on 4 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vic Lentini, employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7.    The issue in this case is whether the applicant meets the requirements of cl 482.232(1).

English language proficiency

8.    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.

9.    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.

1. Exempt applicants are defined in section 4 of IMMI 18/032 as:

   exempt applicant means:

   (a)an applicant who is a citizen of, and who holds a valid passport issued by, one of the following countries:

   (i)Canada;

   (ii)New Zealand;

   (iii)the Republic of Ireland;

   (iv)the United Kingdom;

   (v)the United States of America; or

   (b)an applicant who has completed at least 5 years of full-time study in a secondary education institution or higher education institution where the instruction was delivered in English; or

   (c)an applicant who has been nominated by a standard business sponsor in relation to an occupation that will be performed at:

   (i)a diplomatic or consular mission of another country; or

   (ii)an Office of the Authorities of Taiwan located in Australia; or

   (d)an applicant:

   (i)who has been nominated in relation to an occupation that requires the applicant to hold a licence, registration or membership to perform the occupation; and

   (ii)who has been granted that license, registration or membership; and

   (iii)who, for the purposes of the grant of that license, registration or membership, was required to demonstrate a level of English language proficiency that is equivalent to, or better than, the level of English language proficiency that is required to achieve the required test scores for an approved English language test that the applicant would have been required to achieve but for this paragraph; or

   (e)who:

   (i)is employed by a company operating an established business overseas; and

   (ii)is nominated by a standard business sponsor who is that company or an associated entity of that company; and

   (iii)will receive annual earnings of at least AUD96,400.

2. There is no evidence before the Tribunal and the applicant did not submit that they are an exempt applicant as specified in the instrument. The Tribunal is satisfied that the applicant is not exempt from satisfying the language test requirements.

3. The applicant provided the Tribunal with a copy of their English Language Test that had been found by the Department and the Tribunal to be bogus. The applicant sought time to provide an updated English language test. The Tribunal granted the applicant until close of business on 1 September 2023 in order to provide further submissions.

4. On 31 August 2023 the applicant’s representative wrote to the Tribunal stating: “Mr Xue informed me that he is not able to meet the required level of English language ability, thus not providing any evidence for now”.

5. In the absence of the applicant demonstrating that they have taken an approved English language test on a particular day and met the required scores as set out in the relevant instrument, the Tribunal cannot be satisfied the applicant meets the prescribed level of English language proficiency.

6. For these reasons, the applicant does not meet the requirements of cl 482.232.

OVERALL CONCLUSION

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

DECISION

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

George Hallwood
Member