1417044 (Migration)

[2016] AATA 3980

1417044 (Migration) [2016] AATA 3980 (27 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Maninder Kaur
Mr Rubaljit Singh Uppal
Miss Jasleen Kaur

CASE NUMBER:  1417044

DIBP REFERENCE(S):  BCC2010/256015

MEMBER:Antoinette Younes

DATE:27 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 27 May 2016 at 12:13pm

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 26 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 26 September 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because he did not have the qualifying score.

4. The applicants appeared before the Tribunal on 11 April 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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).

7. 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). 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?

9. In accordance with s.359AA, the Tribunal discussed with the applicant the information contained in the delegate’s decision record. The Tribunal went through each assessment and the allocation against each criterion in schedule 6B and indicated that it would appear that the allocations of points and total points score of 110 are correct.  The applicant agreed. 

   Part 6B.1 – Occupational Qualifications

10. 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.  

11. 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 15 June 2010 from the Australian Institute of Welfare and Community Workers stating that she was found to be suitable for that occupation.

12. Therefore, the applicant is entitled 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. The applicant’s date of birth is 11 November 1984. 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.

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

    Part 6B.3 – English Language Qualifications

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

16. The applicant provided to the Department an IELTS test dated 7 September 2013 showing that she scored 7 in listening, 8 in reading, 6 in writing, and 6.5 in the speaking component. Her overall score was 7. Consequently she was found to have competent English and was therefore awarded 15 points.

17. The applicant provided the Tribunal IELTS test results dated 18 October 2014, 8 October 2015 and 5 March 2011.  In the 18 October 2014, the applicant obtained the scores of listening 7, reading 7.5, writing 6, speaking 7, and an overall band score 7.  In the 8 October 2015, the applicant obtained the scores of listening 7, reading 7, writing 6, speaking 8, and overall band score 7.  In the 5 March 2011, the applicant obtained the scores of  listening 7, reading 7, writing 7, speaking 7, and overall band score 7.

18. In the course of the hearing, the Tribunal discussed with the applicant the IELTS test scores and particularly those of the test dated 5 March 2011. The Tribunal asked the applicant why she had not provided those results to the Department and the applicant stated she did not provide them because her date of birth was wrong. The Tribunal noted that her date of birth is indicated to be in 11 November 1984 which appears to be her correct date of birth. The applicant stated that 11 November 1984 is her correct date of birth but this document was a second document which she had obtained in relation to the same test. The Tribunal asked why there were two different documents and the applicant handed up to the Tribunal a copy of the same test showing her date of birth to be 1 August 1986. The applicant stated that when she received the document with the incorrect date of birth, she did not have the opportunity to seek a correction. She later changed her evidence and stated that she contacted the centre and asked for it to be corrected. She said they subsequently sent the corrected version which was lost in the mail. The applicant told the Tribunal that she did not want to use the test results of 5 March 2011 because it had incorrect information. The Tribunal indicated that it was concerned about the document dated 5 March 2011, as well as her responses in relation to the document. The Tribunal asked the applicant if the documents dated 5 March 2011 are genuine and containing true information. The applicant stated that both documents are genuine and the reason why she did not want to use the documents was because they contained incorrect information about her date of birth.  The applicant indicated to the Tribunal that she would like the Tribunal to ignore the test of 5 March 2011 and that she did not intend to rely on it. The Tribunal expressed concerns about the applicant’s explanations in relation to the test and the documents. Subsequent to the hearing, the Tribunal wrote to the relevant provider of the IELTS test and they advised that they could not confirm the information in the test report form because it was over two years old. Given the applicant’s indication that she did not wish to rely on that test raising some doubts about its authenticity, Tribunal has decided not to give weight to the document and has not used the document in an adverse manner to the applicant.

19. The applicant asked the Tribunal for an extension of time to enable her to attempt another IELTS test, although she stated she has undertaken over 20 tests in the past. She initially told the Tribunal that she had booked a test on 30 April 2016 but she later changed her evidence and said that there is a test on 30 April 2016.  The Tribunal granted the applicant time to sit for the test on 30 April 2016 and she was given until 14 May 2016 to provide the results of that test.

20. The Tribunal indicated to the applicant that unless she can achieve seven in each component, she would not be a receiving more points than the allocated 15.  The Tribunal explained to the applicant that in order to be allocated 25 points, she needed to achieve at least seven in each of the four test components, otherwise the Tribunal will also allocate 15 points which means that her total score of 110 would not change and consequently the Tribunal would have to affirm the decision to refuse to grant her the visa. The applicant understood.

21. The applicant did not provide any further information to the Tribunal. 

22. The IELTS test dated 7 September 2013 shows that the applicant scored 7 in listening, 8 in reading, 6 in writing, and 6.5 in the speaking component. Her overall score was 7. Consequently the applicant has competent English and is therefore awarded 15 points under this Part.

    Part 6B.4 – Specific Employment Qualifications

23. 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.

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

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

    Part 6B.5 – Australian Employment Qualifications

26. 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.

27. 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.

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

    Part 6B.6 – Australian Educational Qualifications

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

30. In support of the visa application, the applicant provided documents relating to her Australian qualifications, namely Diploma of Community Welfare from the Australian Institute of Commerce and Language (AICL) completed on 27 May 2010, transcript of academic record for the diploma, letter from dated 3 June 2010 confirming that the applicant had completed the diploma on 27 May 2010 after two years of full-time study.

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

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

    Part 6B.7 – Occupation in Demand Qualifications

33. 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.

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

    Part 6B.8 – Designated Language Qualifications

35. 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.   

36. 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.

37. 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

38. 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. 

39. 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.

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

    Part 6B.10 – Partner Skill Qualifications

41. 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.

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

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

    Part 6B.11 – State or Territory Nomination Qualifications

44. 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 visa subclasses.

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

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

    Conclusion on points

48. 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

49. 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?

50. At the time of Tribunal’s decision, the applicant achieved the same score. 

51. For the above reasons, the applicant is entitled to a maximum of 110 points under the points test. At the relevant point in time, the pass mark was 120 points. Accordingly the applicant has not achieved the qualifying score required to pass the points test and therefore she does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa. The appropriate course is to affirm the delegate’s decision.

    Assessment against subclass 886

52. The applicant provided the Tribunal with an unsigned and undated Form 1277, from a person claiming to be the applicant’s first cousin. In the course of the hearing, the Tribunal noted that there is no corroborative evidence in support of the Form 1277 relating to details of the sponsor, such as, whether or not the sponsor is an Australian citizen, the age of the sponsor, the residence of the sponsor, and the relationship of the to the applicant.

53. Moreover, the Tribunal indicated to the applicant that at the relevant time, the sponsor had to be related to the applicant such as, a parent, a child, and adopted child or a step-child, or a brother or sister, and adoptive brother or sister, or a step-brother or a step-sister, and aunt or uncle or an adoptive aunt or uncle, or a step-aunt or step-uncle, and a nephew or niece, and adoptive nephew or niece, or a step-nephew, step-niece. The Tribunal indicated that a first cousin is not a related person for the purposes of the relevant of cl.886.222. The applicant indicated to the Tribunal that she thought the Tribunal could accept the first cousin. The Tribunal reiterated that a first cousin is not a related person and the Tribunal has no discretion to accept the first cousin as a related person.

54. Therefore, the Tribunal finds that the applicant does not meet 886.222.

    DECISION

55. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Antoinette Younes
    Senior Member