1415297 (Migration)

[2015] AATA 3196

1415297 (Migration) [2015] AATA 3196 (27 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shikha Nayagar

CASE NUMBER:  1415297

DIBP REFERENCE(S):  BCC2010/262478

MEMBER:Nicole Burns

DATE:27 July 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 27 July 2015 at 10:46am

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 Immigration to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 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 visa on 22 August 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had the qualifying score of 120 points under Schedule 6B of the Regulations.

4. The applicant appeared before the Tribunal on 19 May 2015 and on 27 May 2015 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.  The agent attended the second hearing, on 27 May 2015.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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).

8. 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). In the present case, the applicant nominated the occupation of ‘Welfare Worker’.

   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

9. 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.

10. The applicant nominated the occupation of ‘Welfare Worker’ in the visa application.  The relevant instrument specifies that it is a skilled occupation and that 60 points are available for this occupation. The relevant assessing authority for the nominated occupation is specified in the Instrument as the Australian Institute of Welfare and Community Workers Inc. (AIWCW). 

11. The applicant enclosed with her visa application evidence that she had received a positive skills assessment from AIWCW dated 9 June 2010 for her nominated skilled occupation. The Tribunal is satisfied on the basis of this evidence that the applicant has a suitable skills assessment for her nominated skilled occupation for which 60 points are available.

12. Therefore, the applicant is entitled to 60 points under this part.

    Part 6B.2 – Age Qualifications

13. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.

14. A copy of the applicant’s passport, presented with the application, indicates that she was born on 7 December 1982, which meant she was aged 29 at the time of application. 

15. Therefore, the applicant is entitled to 30 points under this part.

    Part 6B.3 – English Language Qualifications

16. Points are available under this Part on the basis of the applicant’s level of English language proficiency.

17. The applicant submitted to the Department results of an International English Language Testing System (IELTS) test she sat on 10 July 2010 in which she received 6.5 for listening and reading components, 6.5 for writing, and 7.0 for speaking.  On this basis the Tribunal is satisfied that the applicant has ‘Competent English’ as defined in r.1.15C and is eligible for 15 points against this Part.

18. At the first Tribunal hearing the applicant said she has sat the IELTS test a number of times since in an attempt to reach scores to demonstrate ‘Proficient English’ and to attract additional points against this Part[1].  The applicant requested additional time to sit another English test in an attempt to reach minimum scores to demonstrate ‘Proficient English’ to obtain additional points against this Part and provided a receipt for a PTE English test booked for 30 June 2015.  The Tribunal initially granted this request during the course of the first hearing, however on closer examination of legislative changes that came into effect on 18 April 2015, the Tribunal formed the view that it would be futile and therefore refused the request.  That is because, as explained to the applicant at the second Tribunal hearing, the current definition of proficient English as in force from 18 April 2015[2] requires that the test must have been conducted in the 3 years immediately before the day on which the Minister invited the person under the Regulations, in writing, to apply for the visa.  Therefore the current definition of proficient English which refers to an English language test by reference to the date of invitation to apply for the visa, cannot apply to the visa subclasses relevant to Schedule 6B – as is this case under review – as these subclasses are not subject to an invitation to apply.  It follows that the applicant can no longer be awarded points for proficient English under Schedule 6B.

    [1] She provided results of four IELTS tests as well as a typed summary of results of six tests she has sat in the past.

    [2] Migration Amendment (2015 Measures No. 1) Regulation 2015 (SLI 2015, No.34).

19. At the hearing the representative submitted that at the time of the visa application in June 2010 the definition of Proficient English was the same but the High Court case of Berenguel[3] meant that English results provided after the time of application could be accepted, if the visa application was made prior to 30 June 2011.  He submitted that he believes whatever definition was in the legislation at the time of application should be relevant.  He said he had talked to a lawyer who said that legislative changes could be from parliament or from a judicial decision, and no case officer can override these changes.  He said also that the applicant’s nominated skilled occupation is no longer on the Skilled Occupation List.  However he has spoken to a Departmental officer who told him that if the applicant manages to achieve the requisite English scores and gets a positive response from the Tribunal, the application will proceed under the old regulations, in effect on 30 June 2010 when the application was made.

    [3] Berenguel v MIAC (2010) 264 ALR 417

20. The representative also requested time to look into the matter further and provide a submission accordingly.  The Tribunal agreed and allowed the representative until 7 July 2015 to provide a submission on this matter.  The Tribunal indicated at the hearing that once it received that submission it would then confirm whether or not it would grant additional time for the applicant to sit another English test, in writing.  The Tribunal did not receive any further submissions from the representative.  In an email to the representative on 8 July 2015, the Tribunal confirmed that, further to the discussion at the Tribunal hearing, under the Regulations as they currently stand, a Subclass 885 applicant cannot be awarded points for ‘Proficient English’ and therefore the applicant’s request for additional time to sit another test was refused.  The Tribunal indicated in that email that it would hold off making a decision on the case until 17 July 2015 if the representative wished to provide any final submissions.  The Tribunal did not receive a response or any submissions from the representative or the applicant on this matter.

21. The Tribunal has considered the representative’s submissions as set out above. However, the definition of ‘Proficient English’ as amended on 18 April 2015 applies to this case.  It applies to all live applications (with exceptions that aren’t relevant to pre SkillSelect applications).[4]  Because the timing of the test in the new paragraph r.1.15D(b) is by reference to the date of invitation, it cannot be applied to pre SkillSelect applications such as Subclass 885, because there is no invitation for these applications.  Accordingly, under the regulations as they currently stand, a Subclass 885 applicant cannot obtain points for proficient English.  For these reasons the Tribunal refused the applicant’s request for additional time to sit a further English test in an effort to achieve the scores to meet the definition of ‘Proficient English’.

    [4] Schedule 13 item 4102 as inserted by SLI 2015 no.34  

22. Therefore, the applicant is entitled to 15 points under this part.

    Part 6B.4 – Specific Employment Qualifications

    24.Points are available under this Part if the applicant was employed in a skilled occupation, or if the nominated skilled occupation was one for which 60 points are available, in that occupation or a closely related skilled occupation, for at least 36 months in the 48 months immediately before the visa application was made.

    25.The applicant has not provided any evidence of having been employed, within the meaning of r. 2.26A(7), in the nominated skilled occupation or in any other skilled occupation, for a period of, or for periods totalling, at least 36 months in the 48 months immediately before the day on which the application was made.

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

    Part 6B.5 – Australian Employment Qualifications

23. 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.

24. The applicant stated at the hearing that she tried hard to find work in her field after finishing studying but was not successful.  She currently works part time at Coles Express, which  is not closely related to her nominated occupation.

25. There is no evidence before the Tribunal that 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.

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

    Part 6B.6 – Australian Educational Qualifications

27. An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia.

28. The applicant provided evidence to the Department that she satisfied the Australian study requirement by completing a Diploma of Community Welfare Work from Cambridge International College in May 2010.  The Tribunal is satisfied that the course was a diploma awarded by an Australian educational institution; a registered course; was completed in a total of at least 16 calendar months; was completed as a result of at least 2 academic years study; and for which all instruction was conducted in English whilst the applicant was in Australia as the holder of a student visa.

29. Therefore, the applicant is entitled to 5 points under this Part.

    Part 6B.7 – Occupation in Demand Qualifications

30. 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. 

31. There is no evidence before the Tribunal that the applicant has been employed 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.

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

    Part 6B.8 – Designated Language Qualifications

33. 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.  

34. The applicant has made no claims and presented no evidence that she is the holder of a qualification as described.

35. Further, the applicant has made no claims and presented no evidence that she is accredited as a professional interpreter or level 3 translator in a designated language.

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

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

37. 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.

38. The applicant does not claim, nor is there any evidence before the Tribunal to indicate that the applicant lived in a part of Australia, the postcode of which is specified by the Minister in an instrument in writing, while meeting the Australian study requirement.

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

    Part 6B.10 – Partner Skill Qualifications

40. 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.

41. The applicant has made no claims against this part.

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

    Part 6B.11 – State or Territory Nomination Qualifications

43. 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. 

44. The applicant has not applied for a Subclass 176, 475, 487 or 886 visa.

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

    Part 6B.12 – Designated Area Sponsorship Qualifications

46. 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.

47. The applicant has not applied for a Subclass 475 or 487 visa.

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

    Conclusion on points

49. 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

50. At the time of the delegate’s assessment 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. The Tribunal finds that the pass mark is unchanged at the time of its assessment.

    CONCLUSION

51. 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

52. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Nicole Burns
    Member