1414778 (Migration)

[2015] AATA 3127

1414778 (Migration) [2015] AATA 3127 (13 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Amandip Singh
Ms Sarbjit Kaur

CASE NUMBER:  1414778

DIBP REFERENCE(S):  BCC2010/235230

MEMBER:Filip Gelev

DATE:13 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

·cl.885.221 of Schedule 2 to the Regulations

·

Statement made on 13 July 2015 at 4:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 June 2010. 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).

3. The delegate refused to grant the visas on 12 August 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because he did not achieve the ‘qualifying score’ specified in Schedule 6B to the Regulations.

4. The applicants appeared before the Tribunal on 24 February 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.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).

8. 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).

9. As this visa application was lodged before 1 July 2011, only 6B is applicable.

10. 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 Welfare Worker, ANZSCO[1] Code 2512-11.

    Does the applicant have the qualifying score applying the law in force at the time of the delegate’s decision?

    [1] Australian and New Zealand Standard Classification of Occupations.

    Part 6B.1 – Occupational Qualifications

11. 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 applicant has nominated the skilled occupation of Cook and has provided a positive skills assessment as a Welfare Worker from the Australian Institute of Welfare and Community Workers Inc (dated 16 April 2010). Therefore, the applicant is entitled to 60 points under this part.

    Part 6B.2 – Age Qualifications

12. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application. As the applicant was between the ages of 18 and 30 years old, he is entitled to 30 points under this part.

    Part 6B.3 – English Language Qualifications

13. Points are available under this Part on the basis of the applicant’s level of English language proficiency. If the applicant has competent English (r.1.15C) he is entitled to 15 points; for proficient English he is awarded 25 points (r.1.15D).

14. Regulation 1.15C relevantly provides that a person has ‘competent English’ if he or she achieves, in a test conducted in the 2 years immediately before the day on which the application was lodged, a score as specified in the instrument. In this case a score of at least 6.0 for each of the 4 test components of speaking, reading, writing and listening in an International English Language Testing System (IELTS) test, or a score of at least ‘B’ in each of the four test components of an Occupational English Test (‘OET’), is required.

15. Regulation 1.15D relevantly provides that a person has ‘proficient English’ if  he or she achieves, in a test conducted in the 2 years immediately before the day on which the application was made, a score specified in the instrument. In this application a score of at least 7.0 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of at least ‘B’ in each of the four test components of an OET is required.

16. For applications, such as this one, lodged prior to 1 July 2011, an applicant can undertake an IELTS – in order to be awarded 25 points for ‘proficient English’ – at any time up until the date of decision: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010).

17. On 24 June the Tribunal received the results of a test undertaken on 18 April 2015. The scores achieved were all above 7.0 (TRF number 15AU000583TA240G). As the applicant has achieved scores of 7.0 or above in all bands, he has ‘proficient English’.

18. Therefore, the applicant is entitled to 25 points under this part.

    Part 6B.4 – Specific Employment Qualifications

19. 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.

20. The applicant has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

21. Therefore, the applicant is entitled to no points under this part.

    Part 6B.5 – Australian Employment Qualifications

22. 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.

23. The applicant has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

    Part 6B.6 – Australian Educational Qualifications

24. The applicant completed a diploma of community welfare work at the Northern Melbourne Institute of TAFE in December 2009. The Tribunal is satisfied that the applicant’s study in Australia meets the relevant definition of the Australian study requirement in r.1.15F.

25. Therefore, the applicant is entitled to 5 points under this part.

    Part 6B.7 – Occupation in Demand Qualifications

26. 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. 

27. The applicant has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

28. Therefore, the applicant is entitled to no points under this part.

    Part 6B.8 – Designated Language Qualifications

29. 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. 

30. The applicant has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

31. Therefore, the applicant is entitled to no points under this part.

    Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications

32. 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.

33. The applicant has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

34. Therefore, the applicant is entitled to no points under this part.

    Part 6B.10 – Partner Skill Qualifications

35. 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.  

36. The applicant has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

37. Therefore, the applicant is entitled to no points under this part.

    Part 6B.11 – State or Territory Nomination Qualifications

38. 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.

39. The applicant has applied for a visa subclass 885, he has made no claims under this part and there is no evidence concerning the applicant’s eligibility for points under this part.

40. Therefore, the applicant is entitled to no points under this part.

    Part 6B.12 – Designated Area Sponsorship Qualifications

41. 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. 

42. The applicant has applied for a visa subclass 885, has made no claims in relation to this part and there is no evidence concerning the applicant’s eligibility for points under this part.

    Conclusion on points

43. 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   25 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                120 points

44. At the time of the delegate’s assessment the pass mark was 120 points: Legislative Instrument IMMI 12/017. The applicant has therefore achieved the qualifying score to pass the points test.

45. For the above reasons, the applicant is entitled to a maximum of 120 points under the points test. At the relevant point in time, the pass mark was 120 points. Accordingly the applicant achieved the qualifying score required to pass the points test and therefore meets cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

46. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

    ·cl.885.221 of Schedule 2 to the Regulations

    Filip Gelev
    Member