1419599 (Migration)

[2015] AATA 3202

1419599 (Migration) [2015] AATA 3202 (22 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chakra Ratna Bajracharya
Mrs Yada Techatanadirek

CASE NUMBER:  1419599

DIBP REFERENCE(S):  BCC2011/291393

MEMBER:Filip Gelev

DATE:22 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 22 July 2015 at 11:12am

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 30 June 2011. 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 14 November 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 necessary ‘qualifying score’.

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

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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).

9. 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). This application was lodged on 30 June 2011 and therefore r.2.26AB(2) does not apply. Therefore, the applicant is not eligible to be assessed against Schedule 6C.

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 Accountant – General (ANZSCO[1] Code 221111).

    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.

12. As already noted, the applicant’s nominated occupation is Accountant - General. The applicant provided to the Department of Immigration a copy of a successful skills assessment, dated 24 March 2011, by a relevant assessing authority, National Institute of Accountants (in relation to accountants there are three assessing authorities).

13. Pursuant to IMMI 12/068 he is entitled to 60 points under this part.

    Part 6B.2 – Age Qualifications

14. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application. The Tribunal finds based on the applicant’s written evidence that he was born on 19 January 1975.

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 provided to the Department of Immigration a copy of an International English Language Testing System (IELTS) test undertaken on 9 February 2012.

18. The results, which the Department of Immigration verified, were above 7.0 in two bands but below 7.0 in two bands – reading (6.5) and writing (also 6.5).

19. If the applicant were able to achieve scores of 7.0 or above, it would mean that he has proficient English, as defined in r.1.15D and he would have been eligible for 25 points.

20. If his scores are at 6.0 or above in all bands, but below 7.0, he only has competent English as defined in r.1.15C and is entitled to 15 points.

21. At the hearing, the applicant advised the Tribunal that he has tried the IELTS test about 20 or more times. At that time he had last undertaken an IELTS test in February 2015. He told the Tribunal that he only achieved 6.0 in speaking and 6.5 in writing.

22. The applicant asked the Tribunal to be given one more chance and the Tribunal agreed to wait until 1 May 2015 for the results of one or two more IELTS tests. On 1 May 2015 the Tribunal received an email from the applicant’s agent that the applicant had applied for the test results achieved in an IELTS test on 28 March 2015 to be remarked. The applicant had achieved scores of 7.0 or above in 3 bands, but only 6.0 in writing. Ordinarily, remarking takes 6-8 weeks.

23. On 14 July 2015 the Tribunal contacted the representative to seek an update on the remarked IELTS results. He advised the Tribunal that he would follow up with the review applicant “this afternoon” and advise the Tribunal as soon as possible.

24. On 17 July 2015 the Tribunal again contacted the representative to seek an update on the remarked IELTS results. He advised that he did not yet have the requested information, but would contact the Tribunal by the end of the day. He did not do so.

25. As of the date of the decision the applicant has provided no evidence that his score in writing was changed from 6.0 to 7.0 or above.

26. Because the results are above 6.0 in all four bands but below 7.0 in some of the bands, it means the applicant has competent English as defined in r.1.15C. He is entitled to 15 points.

    Part 6B.4 – Specific Employment Qualifications

27. 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.

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

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

    Part 6B.5 – Australian Employment Qualifications

30. 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.

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

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

    Part 6B.6 – Australian Educational Qualifications

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

34. The applicant completed a Master of Business Administration from 16 March 2009 to 28 June 2011. Prior to that he completed a Bachelor of Business Administration from 30 July 2007 to 18 July 2008.

35. The Tribunal is satisfied that the applicant has undertaken at least 3 academic years of study in Australia, that is, from July 2007 to July 2008 and from March 2009 to June 2011, during which he met the requirements for:

    oan Australian masters degree following at least 1 academic year of study; and

    oa closely related undergraduate degree by an Australian institution following at least 1 academic year of study in English in Australia (15 points).

36. The Tribunal notes that the applicant received exemptions in relation to 4 out of 12 subjects in his masters degree and 11 out of 19 subjects of the bachelors degree. However, this is because the applicant had previously completed these subjects while studying at Deakin University (between 2003 and 2006) and Central Queensland University (2006). As the applicant completed these subjects in Australia and they were taught in English, the Tribunal accepts that they count towards the bachelors and masters degrees.

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

    Part 6B.7 – Occupation in Demand Qualifications

38. 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.

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

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

    Part 6B.8 – Designated Language Qualifications

41. 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.

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

43. 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

44. 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.

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

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

    Part 6B.10 – Partner Skill Qualifications

47. 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.

48. At the hearing the visa applicant said that he thought he might have an extra 5 points for his partner’s skills. The applicant’s representative advised the Tribunal that she (the second named applicant) could not satisfy the requirements. The Tribunal pointed out that this would only give him 5 points, not 10 points and the representative agreed. 

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

    Part 6B.11 – State or Territory Nomination Qualifications

50. 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. 

51. The applicant applied for visa subclass 885, rather than one of the relevant subclasses.

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

53. Therefore, the applicant 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. The applicant applied for visa subclass 885, rather than one of the relevant subclasses.

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

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

    Conclusion on points

58. 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  20 points

    English language qualifications  15 points

    Specific employment qualifications  0 points

    Australian employment qualifications  0 points

    Australian educational qualifications  15 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

59. 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.

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

60. For the above reasons, the applicant is entitled to a maximum of 110 points under the points test. There has been no change in the pass mark since the delegate’s decision; it remains 120 points.

61. 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

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

    Filip Gelev
    Member