1416329 (Migration)

[2016] AATA 3422

1416329 (Migration) [2016] AATA 3422 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss JUYONG KIM

CASE NUMBER:  1416329

DIBP REFERENCE(S):  BCC2010/260495

MEMBER:Antoinette Younes

DATE:9 March 2016

PLACE OF DECISION:  Sydney

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

·cl.885.221 of Schedule 2 to the Regulations

Statement made on 09 March 2016 at 4:15pm

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 29 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 11 September 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because she did not have the qualifying score.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

6. 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).

7. 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 IMMI12/068. In the present case, the applicant nominated the occupation of Welfare Worker (ASCO 2512-11).

   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

8. 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.   

9. The applicant nominated occupation is Welfare Worker (ASCO 2512-11).  The occupation nominated by the applicant in the visa application is specified in the relevant instrument as a skilled occupation for which 60 points are available.  The applicant provided a skills assessment dated 16 June 2010 from the Australian Institute of Welfare and Community Workers stating that she was found to be suitable for that occupation

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

    Part 6B.2 – Age Qualifications

11. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application. The applicant’s date of birth is 5 January 1983. The Tribunal is satisfied that the applicant was not less than 18 years and under 30 years of age at the time of the application.

12. Therefore, the applicant 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.

14. On 29 May 2013, the applicant provided to the Department documents relating to English language ability. She provided IELTS test results showing that she scored 6 in the listening, the reading, the writing components and 6.5 in the speaking component. Her overall score was 6. Consequently she was found to have competent English and was therefore awarded 15 points.

15. On 29 February 2016, the applicant provided the Tribunal with IELTS test results dated 7 February 2015 with the following scores:

    a.listening 8,

    b.Reading 7.5,

    c.writing 7,

    d.speaking 7, and

    e.overall band score 7.5.

16. Therefore, the Tribunal finds that the applicant has  ‘proficient English’ as defined in reg. 1.15D

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

    Part 6B.4 – Specific Employment Qualifications

18. 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.

19. The applicant made no claims and provided no evidence that she was employed in a skilled occupation, or a closely related skill occupation, for a period totalling at least 36 months in the 48 months immediately before the date on which the application was made.

20. Therefore, the applicant is not entitled to any points under this part.

    Part 6B.5 – Australian Employment Qualifications

21. 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.

22. The applicant has not claimed or provided any evidence that she was employed in Australia, in the nominated occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was lodged, or that she had completed a professional year in Australia.

23. Therefore, the applicant is not entitled to any points under this part.

    Part 6B.6 – Australian Educational Qualifications

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

25. In support of the visa application, the applicant provided documents relating to her Australian qualifications, namely diploma of community welfare from TAFE dated 15 June 2010, transcript of academic record for the diploma, letter from TAFE dated 15 June 2010 confirming that the applicant had completed that the diploma on 15 June 2010 after two years of full-time study.

26. The Tribunal finds that the applicant satisfies the Australian study requirement / 2 year study requirement as defined in r.1.15F.

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

    Part 6B.7 – Occupation in Demand Qualifications

28. 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.  The applicant is not claiming and there is no evidence that she has been employed in an occupation in demand for at least 12 of the 48 months immediately preceding the visa application.

29. Therefore, the applicant is not entitled to any points under this part.

    Part 6B.8 – Designated Language Qualifications

30. 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.   

31. The applicant is not claiming and there is no evidence that she was the holder of a qualification or is accredited as a professional interpreter or translator in a designated language.

32. Therefore, the applicant is not entitled to any points under this part.

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

33. 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. 

34. The applicant has made no claims and there is no evidence that she had lived in a part of Australia, the postcode of which is specified by the Minister in an instrument.

35. Therefore, the applicant is not entitled to any points under this part.

    Part 6B.10 – Partner Skill Qualifications

36. 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.

37. There is no evidence and the applicant has not made claims in relation to the Partner skill qualifications.

38. Therefore, the applicant is not entitled to any points under this part.

    Part 6B.11 – State or Territory Nomination Qualifications

39. 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 has not applied for any of those relevant these subclasses.

40. Therefore, the applicant is not entitled to any 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.  The applicant has not applied for a Subclass 475 or 487.

42. Therefore, the applicant is not entitled to any 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 IMMI12/017. The applicant did not achieve the qualifying score to pass the points test; she scored 110 points.

    Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

45. At the time of Tribunal’s decision, the applicant achieved a higher score because the Tribunal found that the applicant has proficient English and awarded the applicant 25 points instead of the 15 points previously awarded by the delegate. The Tribunal notes that although the English language requirement is a time of application is a ‘time of application’ criterion, the Tribunal is satisfied that for visa applications made before 1 July 2011, the criterion can be satisfied by a test undertaken after the application has been made.[1]

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

46. 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

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

    ·cl.885.221 of Schedule 2 to the Regulations

    Antoinette Younes
    Senior Member