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 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.
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.
There is no claim or evidence that the applicant has ever undertaken an OET. Evidence on the Department’s file confirms he holds none of the specified passports.
According to the delegate’s decision, as supplied to the Tribunal by the applicant with his review application, the applicant did not provide any documents to evidence his English language ability. On the day of the hearing he provided to the Tribunal a copy of an IELTS test he undertook on 15 March 2014 which indicated scores of 8.5 for listening, 6.5 for reading, 7.0 for writing and 7.0 for speaking [1].
[1] In certain circumstances an IELTS test may undertaken after the visa application was made: Berenguel v MIAC (2010) 264 ALR 417, at [25-26], which held that the language used in r.1.15B (and r.1.15C) was susceptible of the construction that the test was conducted no earlier than 2 years before the application was lodged.
This IELTS test demonstrates that the applicant obtained a score of at least 6 in each of the 4 test components and based on the above results the Tribunal finds that the applicant has ‘competent English’, as defined in regulation 1.15C and is entitled to 15 points under item 6B32 of part 6B.3.
Notwithstanding this result the applicant sought that the Tribunal allow him some time to sit for further IELTS tests in an effort to secure a score of ‘7’ in each of the components, thus enabling him to be assessed as having ‘proficient’ English and entitling him to a higher score. The Tribunal allowed a significant period of time for the applicant to sit several further tests and to apply for re-marks of those tests but unfortunately, although he did achieve a score of ‘7’ for reading, he did not achieve a score of at least ‘7’ for each of the 4 test components in a single test. The Tribunal has considered whether it can, in effect, combine the test results from the several different IELTS tests undertaken by the applicant, which demonstrate that at different points in time he has scored at least ‘7’ in each component. In this respect it has had regard to the words of r.1.15C and r.1.15D which, it notes, each specify that the score is achieved in “a test.” That is, each definition contemplates a score in a single test. This construction is, in general terms, supported by judicial consideration of an item in Schedule 6A which refer to scores achieved in ‘an IELTS test’.[2] On this basis the Tribunal considers that it is unable to have regard to the applicant’s different scores over time so as to characterise him as having “proficient’ English and thus qualifying him for a higher points score.
[2] See Bodruddaza v MIMIA (2007) 228 CLR 651 and Hadiuzzaman v MIAC [2008] FMCA 1266 (McInnis FM, 3 August 2007) where McInnis FM considered item 6A31 and held at [42] that ‘there is clearly a logical reason why the phrase refers to a singular test and I do not accept that it is appropriate nor consistent with the regulation to suggest that a combination of tests or a ‘mix and match’ approach is appropriate’ (not disturbed on appeal: Hadiuzzaman v MIAC [2008] FCA 1015 (Ryan J, 4 July 2008)).
Therefore, on the basis of the above finding (paragraph 18), the applicant is entitled to 15 points under this part.
Part 6B.4 – Specific Employment Qualifications
Points are available under this Part if the applicant has been employed in a skilled occupation or a closely related skilled occupation for at least 36 months in the 48 months before the visa application was made.
Item 6B41 in Part 4 of Schedule 6B provides for 10 points to be awarded where an applicant has nominated a skilled occupation for which 60 points are available, and where the applicant has been employed in that skilled occupation for a period totalling 36 months in the 48 months immediately before the lodgement of the application. Employment in any other skilled occupation will attract 5 points (Item 6B42).
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Accordingly, based on the evidence before it, the Tribunal finds that the applicant was not employed in a skilled occupation for at least at least 36 months in the 48 months immediately before he applied for his visa, as required by either item 6B41 or 6B42. Therefore, the Tribunal finds that he is not entitled to any points under Part 6B.4.
Part 6B.5 – Australian Employment Qualifications
Points are available under this Part if the applicant has been employed, or completed a professional year (that is, a course specified in an instrument), in Australia in the nominated occupation or a closely related skilled occupation for a total of 12 months in the 48 months immediately preceding the visa application date.
Item 6B51 provides for 10 points to be awarded where an applicant has been employed in Australia in the applicant’s nominated skilled occupation for a period totalling at least 12 months in the 48 months immediately before the lodgement of the application.
Item 6B52 also provides 10 points for an applicant who has completed a professional year in Australia in their nominated occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the lodgement of the application.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, the Tribunal finds that the applicant does not meet the requirements of item 6B51 or 6B52 of Schedule 6B to the Regulations and is not entitled to any points under this Part.
Part 6B.6 – Australian Educational Qualification
An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia.
Item 6B61 provides for 25 points where an applicant has met the requirements for award of a doctorate by an Australian educational institution as a result of a course of study of at least 2 academic years.
Items 6B62 and 6B63 provide 15 points each where an applicant has undertaken a course of study in Australia of at least 3 academic years, in English, and has met the requirements for the award of a master’s degree or honours degree (6B62) or an undergraduate honours degree (6B63) for which he or she has achieved second class (division 1) or higher honours.
Finally, item 6B64 provides 5 points to an applicant who satisfied the Australian study requirement.
Documents on the Department’s file demonstrate that the applicant was awarded a ‘Bachelor of Information Systems’ by the University of Ballarat for a course he undertook from October 2006 to July 2008.
As this course is self-evidently not a doctorate or masters or honours degree, no points are attributable to the applicant under items 6B61 or 6B62. Item 6B63 provides points for an undergraduate degree awarded with Honours at Second Class (Division 1) or higher. Documents on the Department’s file indicate that the applicant’s Honours were awarded at Division 2B level (that is, Second Class, Division 2). Therefore no points can be awarded under item 6B63.
Further evidence available to the Tribunal and on the Department’s file confirms that the applicant’s Bachelor of Information Systems was a registered course which was conducted in English and which the applicant completed in at least 16 months as a result of 2 academic years of study (as defined) while on a student visa (r.1.15F).
Therefore, the Tribunal is satisfied that the applicant met the Australian study requirement and is entitled to 5 points under Item 6B64 of Schedule 6B to the Regulations.
Part 6B.7 – Occupation in Demand Qualifications
Points may be awarded under this Part if the applicant has nominated a migration occupation in demand (as specified in an instrument), and has been employed in that occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date. Additional points are available if the applicant has an offer of full time employment in certain organisations.
Item 6B71 provides that 20 points may be awarded where an applicant has nominated a migration occupation in demand in their application, has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the visa application was made, and has an offer of full-time employment in that occupation in an organisation that had at least 10 full-time employees at all times in the 24 months immediately before the day on which the application was made.
Similarly, item 6B72 provides 15 points may be awarded where an applicant has nominated a migration occupation in demand in their application and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the visa application was made.
As the applicant’s subclass visa application was lodged on 21 January 2011, the relevant instrument was IMMI 11/033, ‘Migration Occupations in Demand (Regulation 1.15H and 1.15I)’ and it does include the applicant’s nominated skilled occupation (ANZSCO 261399). As the applicant held a subclass 485 visa at 8 February 2010, he is also entitled to be assessed against the earlier instrument – IMMI 10/025. This instrument also includes the applicant’s nominated skilled occupation, however, in addition, he is required to have been employed in this, or a closely related, skilled occupation. The applicant made no claim to have been so employed and confirmed this at the hearing.
Therefore the Tribunal finds that he is not entitled to any points under item 6B71 or 6B72 of Schedule 6B to the Regulations.
Part 6B.8 – Designated Language Qualifications
Points may be awarded under this section if the applicant is the holder of a qualification that is equivalent to a degree awarded by an Australian tertiary institution where the tuition was conducted in a designated language, or the applicant is accredited as a professional interpreter or level 3 translator in a designated language. Designated languages are specified by the Minister.
The applicant did not claim any points against Item 6B81 in his visa application and confirmed this at hearing. Accordingly, based on the evidence before it the Tribunal finds that the applicant does not hold a qualification (of an equivalent standard to a degree awarded by an Australian tertiary educational institution) the tuition for which was conducted in a designated language. The Tribunal further finds that the applicant is not accredited as a professional interpreter or translator (level 3) in a designated language by the National Accreditation Authority for Translators and Interpreters.
Therefore, the applicant is not entitled to any points under Item 6B81 of Schedule 6B to the Regulations.
Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications
Points may be awarded under this part if the applicant meets the 2 year study requirement / Australian study requirement (as applicable), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes.
Item 6B91 provides that 5 points may be awarded where an applicant meets the ‘Australian study requirement’ and the location of the campus(es) at which that study was undertaken, whilst the applicant lived in an Australian postcode that have been specified by the Minister in the relevant instrument for item 6A1001 of Schedule 6A, and none of the study undertaken constituted distance education.
In his visa application the applicant stated that he undertook his ‘Bachelor of Information Systems’ at the Geelong campus of the University of Ballarat while also living at Geelong (Postcode 3220). The Tribunal finds that this is an Australian postcode that has been specified in the relevant instrument/s: IMMI 05/077 and IMMI 12/015.
Accordingly, the Tribunal finds that the applicant is entitled to 5 points under Item 6B91 of Part 6B.9 of Schedule 6B.
Part 6B.10 – Partner Skill Qualifications
Points may be awarded under this Part if the applicant has a spouse or partner who is also an applicant for certain skilled visas, is under 45 years of age and who has certain skills and qualifications.
There is nothing in the visa application or on the Department or Tribunal files indicating that the applicant is married or has a partner who is also applying for a skilled visa. The applicant confirmed at hearing that he claims no points under this Part.
Therefore, based on the evidence before it, the Tribunal finds that the applicant is not entitled to any points under Part 6B.10.
Part 6B.11 – State or Territory Nomination Qualifications
Points are available under this Part for applicants for a Subclass 176, 475, 487 or 886 visa who have been nominated by a State or Territory government and the Minister has accepted the nomination.
The applicant confirmed at the hearing that he is not nominated by a State or territory government, nor has he applied for any of the listed visas.
Therefore, the applicant is not entitled to any points under Part 6B.11.
Part 6B.12 – Designated Area Sponsorship Qualifications
Points are available under this Part for Subclass 475 and 487 visa applicants who have been sponsored by a relative and the Minister has accepted the sponsorship.
Correspondingly, as the applicant has applied for a subclass 885 visa and not a subclass 475 or 487 visa, the Tribunal finds that he is not entitled to any points under Part 6B.12.
Conclusion on points

Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6B is:
Occupational qualifications  60 points
Age qualifications  30 points
English language qualifications  15 points
Specific employment qualifications   0 points
Australian employment qualifications             0 points
Australian educational qualifications   5 points
Occupation in demand qualifications   0 points
Designated language qualifications   0 points
Study in regional Australia or a low-population
growth metropolitan area qualifications   0 points
Partner skill qualifications   0 points
State or Territory nomination qualifications                0 points
Designated area sponsorship qualifications              0 points
Total points  110 points
At the time of the delegate’s assessment and the Tribunal’s decision the pass mark was 120 points: Legislative Instrument IMMI 12/017.
The applicant has therefore not achieved the qualifying score to pass the points test.
CONCLUSION
For the above reasons, the applicant is entitled to a maximum of 110 points under the points test. At the relevant times the pass mark was 120 points. Accordingly the applicant has failed to achieve the qualifying score required to pass the points test and therefore does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Mary-Ann Cooper
Member