Yuan (Migration)

[2024] AATA 1206

Yuan (Migration) [2024] AATA 1206 (15 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Guoming

Yuan

Ms Hong Chang
Mr Chen

Yuan CHANG

REPRESENTATIVE:  Mr Yew Han Hee (MARN: 1460673)

CASE NUMBER:  2112905

HOME AFFAIRS REFERENCE(S):          BCC2020/2318989

MEMBER:Peter Emmerton

DATE:15 May 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 15 May 2024 at 10:42am

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – Medium-term stream – occupation of Metal Fabricator – English language requirements – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 482.232, 482.312

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 21 September 2021 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 17 September 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 (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, Metal Fabricator, ANZSCO322311, skill level 3.

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 they were not satisfied the applicant met the English language proficiency requirements nor the exemptions.

4. The applicants informed the Tribunal of their decision not to appear before the Tribunal in a letter from their legal representative dated 14 May 2024. Contained within that letter was in addition a statement that there was no additional evidence in support of their case to put before the Tribunal. The Tribunal has as requested, made a decision based upon the evidence presented.

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 English Language proficiency requirements are met.

8. The Tribunal has read and carefully considered all the evidence presented to the delegate and the Department.

9. The Tribunal has read and carefully considered the evidence presented to it as detailed below.

   • Passport of Applicant
   • IELTS Booking Summary, appears generated 29 September 2021
   • Letter of Support, Chris Yan, Managing Director Metwest Steel Pty Ltd, 29 September 2021
   • Letter from applicant’s legal representative dated 14 May 2024 requesting the decision be made on the papers and stating there was no further evidence in support of their case

   English language proficiency

10. 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.

11. 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.

12. It is clear from the information provided in the visa applicant’s application and the evidence subsequently presented to the delegate and the Tribunal that there is no evidence to support a claim that the applicant is an exempt applicant, as defined in the relevant instrument.

13. No evidence has been presented to the Tribunal, the Department or the delegate to indicate the applicant is able to meet the language test requirements specified in the instrument.

14. On 27 October 2020, the primary applicant was requested to provide evidence that they have achieved the required level of English language proficiency.

15. The primary applicant was provided with 28 days to provide this evidence to the Department. The applicant had not responded to the delegate at the time of their decision.

16. The applicant did not provide any evidence relevant to the requirements of subclause 482.232(1) with their application.

17. The Tribunal was provided with an IELTS Booking Summary, which appears to have been generated on 29 September 2021. No results have been provided subsequently.

18. The AAT requested further information on 3 May 2024.

    ‘Further to this hearing invitation, please find a reminder/follow up to the following request which was sent at the time of acknowledgment of this application - if you have not already done so:

    Please provide, when possible, evidence that Mr Yuan meets the English language requirement (within the period of three years from the date of the visa application).’

19. The Tribunal has not been provided with any evidence that they have achieved the required level of English language proficiency.

20. The applicant requested additional time to obtain the information. This was not granted as the applicant had failed on several occasions over the last 3 years to provide that information in-spite of requests by the Department, the Minister’s delegate and the Tribunal. They had been invited to the hearing scheduled for 20 May 2024 on 3 May 2024 and at that time again requested to provide the relevant English language proficiency evidence which was not forthcoming.

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

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

    Assessment against the secondary criteria

23. The Tribunal has also assessed the ability of the applicant to meet the secondary criteria for the Temporary Skill Shortage visa.

24. One of these secondary criteria is specified in clause 482.312 of Schedule 2 of the Migration Regulations. Clause 482.312 requires that the applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.

25. As the Tribunal has determined there are no secondary applicants included in the application who hold a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa having met the primary criteria, it is not satisfied the applicant meets clause 482.312 for the grant of a Temporary Skill Shortage visa.

26. Therefore, the Tribunal must refuse the application by Guoming Yuan for a Temporary Skill Shortage visa.

    Secondary applicants - Consideration of Clause 482.312

27. In relation to the secondary applicants Ms Hong Changand and Mr Chen Yuan The requirements of clause 482 stipulate the following.

    (1) The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.

28. As the primary applicant does not hold the requisite visa the secondary applicants are therefore not members of the family unit of a person who is the holder of a Subclass 457 visa or a Subclass 482 visa.

29. The secondary applicants are also not members of the family unit of another person who holds a Subclass 457 visa or a Subclass 482 visa having satisfied primary criteria for it. Consequently, the secondary applicants do not meet subclause 482.312(1), and therefore clause 482.312 is not met. As clause 482.312 is not met by the applicants, the Tribunal must find the secondary criteria for the grant of a Temporary Skill Shortage visa are not met by the secondary applicants.

    DECISION

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

    Peter Emmerton
    Member