1403712 (Migration) - [2015] AATA 3891

1403712 (Migration) [2015] AATA 3891 (16 December 2015)
DECISION RECORD
DIVISION:  Migration & Refugee Division
APPLICANT:  Mr Avdesh Soni
MRT CASE NUMBER:  1403712
DIBP REFERENCE(S):  BCC2011/41230
TRIBUNAL MEMBER:  Mary-Ann Cooper
DATE:16 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Statement made on 16 December 2015 at 5:08pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 January 2011. The relevant subclass in this case is Subclass 885 (Skilled - Independent). The criteria to be met for the grant of a Subclass 885 visa are set out in Part 885 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on 8 February 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant achieved the qualifying score in the points test prescribed under Migration Regulations Schedule 6B.
The applicant appeared before the Tribunal on 2 May 2014 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies 885.221 which requires that the applicant has the ‘qualifying score’ when assessed under Subdivision B of Division 3 of Part 2 of the Act (ss.92 to 96). That subdivision provides for a ‘points’ system under which an applicant is given the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. The qualifications and points applicable to this case are prescribed in Schedule 6B to the Regulations (r.2.26AA). The applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6B, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act).
In addition, persons who apply for a points tested General Skilled Migration visa on or after 1 July 2011 but before 1 January 2013 who are in a specified class of persons and whose assessed score under Schedule 6B is less than the applicable pass mark at the time of assessment, may also be assessed against the prescribed qualifications in Schedule 6C to the Regulations: r. 2.26AB(2). The applicant is not in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1403712 (Migration)

Details

AGLC: 1403712 (Migration) [2015] AATA 3891
Case: [2015] AATA 3891
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of 1403712, the applicant contested a decision regarding their eligibility for a points-tested General Skilled Migration visa. The Tribunal was tasked with determining whether the applicant met the qualifying score requirements under the Migration Act 1958 (Cth). The applicant, who nominated the occupation of Software and Applications Programmer NEC (ANZSCO Code 261399), sought to establish their eligibility based on various qualifications, age, and English language proficiency. The central legal issue revolved around whether the applicant had achieved the qualifying score under the points system outlined in the Act and Regulations.

The Tribunal examined the applicant's qualifications against the criteria in Schedule 6B of the Regulations. It confirmed that the applicant had a positive skills assessment for their nominated occupation, entitling them to 60 points. The applicant's age at the time of application qualified them for an additional 30 points. However, the key issue was the applicant's English language proficiency. The Tribunal considered the scores required for 'proficient' and 'competent' English, as specified in the relevant legislative instruments. After assessing the evidence, the Tribunal determined that the applicant did not meet the required English language proficiency to achieve the qualifying score.

Consequently, the Tribunal upheld the delegate's decision to affirm the refusal of the visa application. The applicant did not meet the qualifying score required under the Act and Regulations. The Tribunal's decision was based on the applicant's failure to meet the minimum English language proficiency criteria, which was a critical component of the points test. The Tribunal's reasoning was grounded in a thorough analysis of the applicant's qualifications, age, and English language proficiency against the statutory requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant satisfies 885.221 which requires that the applicant has the ‘qualifying score’ when assessed under Subdivision B of Division 3 of Part 2 of the Act (ss.92 to 96). That subdivision provides for a ‘points’ system under which an applicant is given the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. The qualifications and points applicable to this case are prescribed in Schedule 6B to the Regulations (r.2.26AA). The applicant achieves the qualifying score if their assessed score is more than or equal to the applicable pass mark (s.94 of the Act), which is set by the Minister from time to time under s.96(2). The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6B, and the pass mark as in force at the time of the delegate’s assessment and as in force at the time of this assessment, and apply whichever is more favourable to the applicant (ss.93 and 350 of the Act). In addition, persons who apply for a points tested General Skilled Migration visa on or after 1 July 2011 but before 1 January 2013 who are in a specified class of persons and whose assessed score under Schedule 6B is less than the applicable pass mark at the time of assessment, may also be assessed against the prescribed qualifications in Schedule 6C to the Regulations: r. 2.26AB(2). The applicant is not in that specified class of persons. Some elements of the points test relate to the skilled occupation that the applicant nominated in the visa application. An occupation is a ‘skilled occupation’ if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 12/068. In the present case, the applicant nominated the occupation of Software and Applications Programmer NEC (ANZSCO 261399).Does the applicant have the qualifying score applying the law in force at the time of the delegate’s decision?Part 6B.1 – Occupational Qualifications Points are available under this Part if the applicant has a suitable skills assessment for his or her nominated skilled occupation for which 40, 50 or 60 points are available. The Tribunal is satisfied that the applicant nominated a skilled occupation at the time of application, namely, that of ‘Software and applications programmer nec” (ANZSCO Code 261399). The relevant instrument in writing, IMMI 12/068, specifies that 60 points are available for this occupation. In addition, the applicant has a positive skills assessment from the Australian Computer Society Inc. for his nominated skilled occupation.

Decision

Reasons for decision

Some elements of the points test relate to the skilled occupation that the applicant nominated in the visa application. An occupation is a ‘skilled occupation’ if: it is specified by the Minister in an instrument in writing as a skilled occupation; and, if a number of points are specified in the instrument as being available - for which the number of points are available; and that is applicable to the person in accordance with the specification of the occupation (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 12/068. In the present case, the applicant nominated the occupation of Software and Applications Programmer NEC (ANZSCO 261399).Does the applicant have the qualifying score applying the law in force at the time of the delegate’s decision?Part 6B.1 – Occupational Qualifications Points are available under this Part if the applicant has a suitable skills assessment for his or her nominated skilled occupation for which 40, 50 or 60 points are available. The Tribunal is satisfied that the applicant nominated a skilled occupation at the time of application, namely, that of ‘Software and applications programmer nec” (ANZSCO Code 261399). The relevant instrument in writing, IMMI 12/068, specifies that 60 points are available for this occupation. In addition, the applicant has a positive skills assessment from the Australian Computer Society Inc. for his nominated skilled occupation. On this basis the Tribunal finds that the applicant is entitled to 60 points for Part 6B.1 in accordance with item 6B11 of Schedule 6B. Part 6B.2 – Age Qualifications According to his visa application and his passport, the applicant was born in 1987 and was aged between 18 and 30 years at the time of application. Accordingly, the Tribunal finds that the applicant is entitled to 30 points for Part 6B.2 in accordance with item 6B21 of Schedule 6B.Part 6B.3 – English Language Qualifications Points are available under this Part on the basis of the applicant’s level of English language proficiency. Regulation 1.15D relevantly provides that a person has ‘proficient English’ if he or she achieves, in an International English Language Testing System (IELTS) test conducted not more than 2 years before the day on which the application was made, a score of at least 7 for each of the 4 test components of speaking, reading, writing and listening. Alternatively he or she achieves a score in a language test specified by the Minister in writing. The relevant instrument in this regard is IMMI 15/005 which specifies a score of at least ‘B’ in each of the four test components of an Occupational English Test (‘OET’). Similarly, regulation 1.15C relevantly provides that a person has ‘competent English’ if he or she achieves, in an International English Language Testing System (IELTS) test conducted not more than 2 years before the day on which the application was made, a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening . Alternatively he or she achieves a score in a language test specified by the Minister in writing or holds a passport of a type specified by the Minister in an instrument in writing. The relevant instrument in this regard is IMMI 15/005 which specifies a score of at least ‘B’ in each of the four test components of an Occupational English Test (‘OET’) or the holding by the applicant of a valid passport issued by the UK, the USA, Canada, New Zealand or the Republic of Ireland.

Ratio Decidendi

Legal Principle Established

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