Yepes Baena (Migration)

[2021] AATA 5372

Yepes Baena (Migration) [2021] AATA 5372 (23 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Julian David Yepes Baena

CASE NUMBER:  2111989

HOME AFFAIRS REFERENCE(S):          BCC2021/1187005

MEMBER:Amanda Mendes Da Costa

DATE:23 November 2021

PLACE OF DECISION:  Melbourne

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(1) of Schedule 2 to the Regulations.

Statement made on 23 November 2021 at 8.30am

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – Engineering professionals nec – English language proficiency – IMMI 18/032 – Pearson Test of English Academic (PTE) language test – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 20 August 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 3 June 2021. 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 Engineering professionals nec (ANZSCO Code 233999).

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(1) of Schedule 2 to the Regulations because she was not satisfied that the applicant satisfied a language test requirement specified in the relevant instrument.

4. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicant to appear before it at a hearing to give oral evidence in relation to the decision under review.

5. The applicant was represented in relation to the review by his 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. The issue in this case is whether the applicant satisfies the criteria in 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.

10. The Tribunal notes that the applicant has provided it with the results of a Pearson Test of English Academic (PTE) language test (dated 30 October 2021) which was undertaken by the visa holder.  IMMI 18/032 states that the required scores for the English test is a PTE overall test score of at least 36 with a score of at least 30 in each of the four test components.

11. The test results provided show that the applicant obtained a score of more than 36 in each of the four components of the test and an overall score of 50 and that he achieved in a single day the required test score in the specified time.

12. For these reasons, the applicant meets the requirements of cl 482.232(1).

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

    DECISION

14. 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.

    Amanda Mendes Da Costa
    Member