1415570 (Migration)

[2016] AATA 3916

1415570 (Migration) [2016] AATA 3916 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Evan Stephen Rossler

CASE NUMBER:  1415570

DIBP REFERENCE(S):  BCC2009/408716

MEMBER:Alan Duri

DATE:16 May 2016

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 16 May 2016 at 8:02am

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 Mr Rossler a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Rossler applied for the visa on 26 October 2009. The relevant subclass in this case is Subclass 886 (Skilled - Sponsored). The criteria to be met for the grant of a Subclass 886 visa are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on 3 September 2014 on the basis that Mr Rossler did not satisfy cl.886.221 of Schedule 2 to the Regulations because Mr Rossler did not satisfy the points test.

   Hearing

4. Mr Rossler appeared before the tribunal on 6 January 2016 to give evidence and present arguments.

5. Mr Rossler was represented by his registered migration agent Ms Sarah Hatch.

6. During the hearing the tribunal received a letter concerning Mr Rossler’s employment at Hornsby RSL club since 5 September 2007.

7. Mr Rossler told the tribunal that apart from his employment at Hornsby RSL he was also employed at an Italian restaurant in Hornsby.  He cannot recall the name of the restaurant, but he was employed as a pasta and pizza chef.  He was paid “under the table”.

8. The tribunal foreshadowed that it may not be prepared to accept that Mr Rossler would be able to obtain any points for any employment in Australia based on his evidence alone.

9. Mr Rossler was born in South Africa in an English-speaking household and subsequently migrated to Ireland.  Ms Hatch submitted that as a native English speaker Mr Rossler may well be able to obtain additional points for his English skills.

10. The tribunal agreed to defer its decision to enable Mr Rossler to undertake an IELTS test.

11. Following the hearing the tribunal was advised that Mr Rossler had booked an IELTS tests for 20 February 2016.

12. On 22 January 2016 the tribunal was advised that Mr Rossler wished to attend a wedding on 20 February 2016 and that the IELTS test was rescheduled to 5 March 2016.

13. On 22 March 206 the tribunal was advised that Mr Rossler did not achieve the required result in the IELTS test.    Mr Rossler achieved 8.0 for listening, 6.5 for reading, 7.0 for writing and 8.5 for speaking.

14. Ms Hatch (and the tribunal agreed) that Mr Rossler be given an opportunity to do another test.

15. On 13 May 2016 the tribunal was provided with Mr Rossler’s IELTS results for a test conducted 30 April 2016.  Mr Rossler achieved 7.5 for listening, 5.5 for reading, 8.0 for writing and 8.0 for speaking.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The question before the tribunal is whether Mr Rossler satisfies cl.886.221 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).

17. 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).

18. 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 this case Mr Rossler nominated the occupation of cook.

    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

19. 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.

20. Mr Rossler’s nominated occupation is “cook”. The department’s file contains a TRA skills assessment.

21. The occupation cook attracts the maximum 60 points.

    Part 6B.2 – Age Qualifications

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

23. Mr Rossler was born 25 July 1967.  The visa application was made on 29 October 2009.  He was 42 at the time of the visa application. Therefore, Mr Rossler is entitled to 15 points under this part.

    Part 6B.3 – English Language Qualifications

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

25. As a passport holder of Ireland, Mr Rossler is deemed to have competent English.  Therefore, he is entitled to 15 points under this part.

26. As noted above Mr Rossler was given the opportunity to undertake IELTS tests to determine whether he had a higher level of English.  Unfortunately both tests undertaken by Mr Rossler fell short of meeting the requirement for a higher level of English.  Therefore no extra points can be awarded for Mr Rossler’s English language qualifications.

    Part 6B.4 – Specific Employment Qualifications

27. 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.

28. In particular item 6B42 provides that points can be awarded under this item if the applicant has been employed in a skilled occupation for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made.  The skilled occupation does not have to be the one nominated in the visa application. 

29. Mr Rossler provided the tribunal with an undated letter from Hornsby RSL Club indicating he had been employed as a cook with that club since 5 September 2007 and completed 1040 hours kitchen experience. 

30. Mr Rossler also gave evidence that he worked for cash at an Italian restaurant in Hornsby.  He cannot recall the name of the restaurant and understands that the restaurant no longer exists.  Mr Rossler was also unsure of the period he worked for this restaurant.  Given the lack of detail and lack of corroborative evidence, the tribunal has not taken Mr Rossler’s claimed employment in this unnamed Italian restaurant into account in reaching this decision.

31. Mr Rossler’s visa application was lodged on 26 October 2009.  The 48 month period commences from 26 October 2005.

32. Based on the Hornsby RSL letter, Mr Rossler had not been employed as a cook for at least 36 months in the 48 month period before the visa application.

33. Therefore, Mr Rossler is entitled to no points under this part.

    Part 6B.5 – Australian Employment Qualifications

34. 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.

35. For the points tests in Schedules 6B  and 6C,  where the visa application was made before 1 July 2012, the term ‘employed’ is defined by r.2.26A(7) as ‘engaged in an occupation for remuneration for at least 20 hours weekly’. 

36. As noted in the delegate’s letter, and as advised during the hearing, Mr Rossler has been unable to provide any evidence such as work contracts, payslips, bank statements, group certificates, taxation assessments et cetera, to substantiate the claim that he was employed for in the nominated occupation for a total of 12 months in the 48 months before the visa application.  According to the delegate’s decision, the department was unable to verify Mr Rossler’s claimed employment with the Hornsby RSL Club.  Ms Rossler’s migration agent noted in a post hearing submission that the RSL has been unable to produce any record of Mr Rossler’s employment, apparently because of a change in the club’s payroll system.   

37. The undated letter is the only evidence Mr Rossler worked at some point at the Hornsby RSL club.  However the letter does not indicate the period of employment or the hours per week worked.

38. As noted above, the tribunal places no weight on Mr Rossler’s evidence that he worked at some point for an Italian restaurant.  Mr Rossler could not remember the name of the restaurant or period that he worked.

39. It summary there is insufficient evidence that Mr Rossler was employed as a cook or in a closely related occupation for a total of 12 months in the 48 months immediately preceding the visa application date.

40. Therefore, Mr Rossler is entitled to 0 points under this part.

    Part 6B.6 – Australian Educational Qualifications

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

42. Based on TAFE records on the department’s file the tribunal is satisfied that Mr Rossler satisfies the Australian study requirement.  Therefore, he is entitled to 5 points under this part.

    Part 6B.7 – Occupation in Demand Qualifications

43. 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. 

44. As noted above the tribunal is not satisfied that Mr Rossler had been employed in his nominated occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date.

45. Therefore, Mr Rossler is entitled to 0 points under this part.

    Part 6B.8 – Designated Language Qualifications

46. 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.

47. Mr Rossler has made no claims against this part.  Therefore, he is entitled to 0 points under this part.

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

48. 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. 

49. Mr Rossler has made no claims against this part.  Therefore, he is entitled to 0 points under this part.

    Part 6B.10 – Partner Skill Qualifications

50. 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.

51. Mr Rossler has made no claims against this part.  Therefore, he is entitled to 0 points under this part.

    Part 6B.11 – State or Territory Nomination Qualifications

52. 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.

53. Mr Rossler is not nominated by a State or Territory government.  Therefore, Mr Rossler is entitled to no points under this part.

    Part 6B.12 – Designated Area Sponsorship Qualifications

54. 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

55. This part is not applicable as Mr Rossler is not applying for Subclass 475 or 487 visas.   Therefore, Mr Rossler is entitled to no points under this part.

    Conclusion on points

56. 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  15 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  95 points

57. At the time of the delegate’s assessment the pass mark was 100 points (Legislative Instrument IMMI 07/056).  There has been no subsequent change to the pass mark.

58. Mr Rossler is entitled to a maximum of 95 points under the points test.  At the relevant times the pass mark was 100 points. Accordingly he has failed to achieve the qualifying score required to pass the points test and therefore does not meet cl.886.221 which is a prescribed criterion for the grant of a Subclass 886 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

59. Ms Hatch’s submission of 13 May 2016 noted that Mr Rossler has insufficient evidence to meet the points test.  Ms Hatch noted Mr Rossler’s family ties to Australia and requested the tribunal supports a request to the Minister under s.351 of the Act.

60. Mr Rossler may well have a close relationship with his brother and the tribunal accepts that Mr Rossler’s case until now has been “in limbo”.  However the tribunal declines to support a request to the Minister on this basis alone. 

61. The Minister has powers under the Migration Act to substitute a decision made by the tribunal with a decision that is more favourable to the applicant. Generally, the Minister will only do so if there are compelling, compassionate or humanitarian considerations. The tribunal notes that Mr Rossler can make a request directly to the Minister.

    DECISION

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

    Alan Duri
    Member