1500064 (Migration)

[2016] AATA 4117

1500064 (Migration) [2016] AATA 4117 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lisha Dong

CASE NUMBER:  1500064

DIBP REFERENCE(S):  BCC2011/477688

MEMBER:Antoinette Younes

DATE:18 July 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 18 July 2016 at 5:25pm

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 14 October 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 visa on 17 December 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 8 July 2017 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent.

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).

9. 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 skilled occupation of Cook (ASCO Code 451311).

   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

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 the occupation of Cook and she provided a copy of a suitable skills assessment for that occupation.  Therefore, the applicant is entitled to 60 points under this part.

    Part 6B.2 – Age Qualifications

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

13. The applicant’s date of birth is 3 November 1984.  As she was aged more than 18 years and under 30 years at the time of application, the applicant is therefore entitled to 30 points under this part.

    Part 6B.3 – English Language Qualifications

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

15. The applicant provided an IELTS test results dated 4 December 2010; she scored 6.5 for listening, 6.5 for reading, 6 for writing, 6.5 for speaking with an overall score of 6.5.  The Tribunal finds that the applicant has competent English as defined in r.1.15C.  Therefore, the applicant is entitled to 15 points under this part.

    Part 6B.4 – Specific Employment Qualifications

16. 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.

17. In the visa application, the applicant claimed that she had worked as a cook at the Waterside Oriental Bistro from 1 June 2010 until 19 September 2011. In support of the claim, she provided handwritten completed PAYG form and handwritten payslips from the Waterside Oriental Bistro covering July 2010 to June 2011. In the course of the hearing, the Tribunal indicated to the applicant that even if the Tribunal were to accept this employment, the evidence before the Tribunal indicates that the applicant was not employed in her nominated occupation or a closely related skilled occupation, for at least 36 months in the 48 months immediately before the visa application was made.

18. Therefore, the Tribunal finds that applicant is not entitled to any points under this part.

    Part 6B.5 – Australian Employment Qualifications

19. 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.

20. As mentioned earlier, in the visa application, the applicant claimed that she had worked as a cook at the Waterside Oriental Bistro from 1 June 2010 until 19 September 2011. In support of the claim, she provided handwritten completed PAYG form and handwritten payslips from the Waterside Oriental Bistro covering July 2010 to June 2011. To the Tribunal, the applicant provided a letter dated 4 July 2016 from an accountant referring to her employment as a chef at the Waterside Oriental Bistro from July 2010 to June 2011. 

21. In the course of the hearing, the Tribunal asked the applicant about her employment at Waterside. She stated that she commenced employment in June 2010 but she could not recall exactly when and that she worked until the end of June 2011. She gave evidence that she worked for 20 hours a week but she was unable to tell the Tribunal what visa she held.  She however thought she was allowed to work. The applicant gave evidence that there were occasions when she worked for over 20 hours a week. The Tribunal referred to the payslips provided by the applicant in support of the visa application and noted that all the payslips indicate that she worked 20 hours a week which would appear to be inconsistent with her evidence that there were occasions when she worked for over 20 hours a week. The Tribunal further suggested that if that were true, then the payslips are not an accurate account of the number of hours she had worked which could raise doubts about the veracity of her claim that she worked for 20 hours a week at Waterside. She stated that when she worked over 20 hours a week, it was only for one or two hours.

22. The Tribunal suggested to the applicant that whilst the Tribunal is not an expert in handwriting, it appears that all the payslips were written at the same time. The applicant denied that the payslips were all written at the same time. The applicant stated that at all times she was paid by the owner, Mr Chan $300 a week in cash.

23. The Tribunal asked the applicant what days she worked and she stated that she did three 5 hour shifts per week and the days varied. The Tribunal indicated that this would mean that she worked for 15 hours a week not 20 hours. The applicant stated that she did the night shift, from 5 to 10pm. She now changed her evidence and said that the number of days she worked depended on how busy the bistro was and that she normally worked for four days a week. The Tribunal reminded the applicant of her earlier evidence that she had worked three days a week to which the applicant replied that she normally worked 20 hours a week.

24. The Tribunal asked the applicant why she left Waterside in 2011 and she stated she got a job in Canberra in November 2011 and she needed time to prepare to leave Melbourne. She said she wanted a rest. The applicant gave evidence that she was working at Melbourne Crown Casino for one and a half years in events management. She stated that she commenced working at the Crown Casino from March 2010 until November 2011. She stated that she worked between 20 to 30 hours a week and earned $25,000. The Tribunal noted that this would mean that she was working at the Crown Casino mostly at the same time as when she was working at Waterside with which the applicant agreed.  The Tribunal referred to the PAYG payment summary provided in support of the visa application. The applicant confirmed that this was lodged at the end of the 2011 financial year. The Tribunal noted that there is no mention of the income derived from her work at Crown Casino PAYG Payment Summary or in the letter from the accountant dated 4 July 2016 provided to the Tribunal raising doubts about the information contained in those documents. The applicant reiterated her evidence that she worked at Crown Casino. The Tribunal asked the applicant why she made no reference to her work at Crown Casino in the visa application to which the applicant replied that she does not know why her employment at the Casino was not mentioned.

25. The Tribunal asked the applicant why she has not provided a letter from Waterside confirming her employment and she stated that she had thought that the payslips would be sufficient. She stated that she has recently tried to contact the restaurant but has been unsuccessful.

26. In post hearing submissions, the applicant provided copies of her tax Notice of Assessments for years ending June 2011 and June 2012, Individual Tax Return 2001, a copy of “Notice of amended assessment – year ended 30 June 2011”.  The Tribunal notes that the Notice shows that “…Total Tax Withheld…Total Gross payment…..Adjusted as a result of audit or investigation”.  The Tribunal observes that for the financial year ending June 2011, the applicant has declared incomes from two sources, an annual income of $27,315 and the other for $15,600. The Tribunal notes and as discussed in the course of the hearing, the income of $27,315 was not mentioned in the handwritten PAYG payment summary – individual non-business for year ending June 2011 provided both in support of the visa application and to the Tribunal (at folio 25), nor was this income mentioned in the letter from the accountant dated 4 July 2016 provided to the Tribunal. In submissions to the Tribunal dated 15 July 2016, the adviser noted that the applicant’s performance at the hearing was not “very good and probably attributable to nerves… The attached documents put beyond doubt the genuineness of claims in relation to the 12 months work experience as a cook in the 12 months prior to the application being lodged”. The Tribunal is satisfied that whilst the documents show that the applicant has declared two sources of income in the year ending June 2011, the documents are not evidence that the applicant has worked at Waterside 20 hours a week for 12 months as claimed; they show an income from Waterside but not hours or period worked.

27. Whilst the Tribunal is of the view that it is plausible that the applicant was nervous in the course of the hearing, the Tribunal is not satisfied that any such nervousness accounts for the evidentiary problems. The Tribunal found the applicant’s evidence in relation to her employment at Waterside to be vague and internally inconsistent. She was confused about whether she worked three or four days a week. When asked why she left in June 2011, she indicated that she left to prepare for Canberra. She subsequently gave evidence that during the time that she worked at Waterside she was also working at the Crown Casino. The Tribunal acknowledges that the visa application asks about the applicant’s past employment – “List your relevant past employment experience” and arguably the applicant’s employment at the casino was not relevant to the occupation of Cook. However that is not what she said to the Tribunal when asked about the reasons; she stated that she does not know why her employment at the Casino was not mentioned.  Her employment at Crown Casino was not mentioned in the visa application, or in the letter from the accountant, or PAYG Payment Summary. She provided payslips which even if accepted to be genuine documents, do not provide an account consistent with her oral evidence about the number of hours she worked; all the payslips note that she worked for 20 hours, whereas in oral evidence, she stated that there were times when she worked for more.

28. The Tribunal has carefully considered the documents that have been provided by the applicant as well as her oral evidence. Although the evidence before the Tribunal shows that the applicant has derived an income from Waterside, on the basis of the available information and given the Tribunal’s concerns about the evidence, the Tribunal does not accept that the applicant had worked as claimed at Waterside. Specifically and for those reasons, the Tribunal does not accept that the applicant was employed as a cook for 20 hours a week at the Waterside Oriental Bistro from 1 June 2010 until 19 September 2011. The applicant has not provided evidence or claimed that her employment at Crown Casino in events management was employment in the skilled occupation or a closely related skilled occupation.

29. Therefore, the Tribunal finds that the applicant has not 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.  Therefore, the applicant is not entitled to any points under this part.

    Part 6B.6 – Australian Educational Qualifications

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

31. The applicant has claimed and provided evidence of completion of a Certificate III in Hospitality at Meridian International Hotel School at the Melbourne campus from 23 July 2007 until 29 June 2008, and a Diploma of Hospitality Management at the same institution between 23 July 2007 until 8 February 2009.

32. On the basis of the available information, the Tribunal is satisfied that the applicant has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution, as a result of courses which are registered courses, and that they were completed in a total of at least 16 calendar month, that they were completed as a result of at least two academic years study, and that for which all instructions were in English while the applicant was in Australia as the holder of a student visa. Therefore, the applicant is entitled to 5 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. 

34. The applicant has nominated the occupation of Cook which is gazetted by the Minister as being a migration occupation in demand. However, the Tribunal has not been satisfied that the applicant has been employed in her skilled nominated occupation or a closely related occupation for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made. Therefore, the applicant is not entitled to any points under this part.

    Part 6B.8 – designated language qualifications

35. The applicant has not made any claims or provided evidence that she holds qualifications of an equivalent standard to a degree awarded by an Australian Tertiary education institution that you wish and for which was conducted in a designated language. She has not made any claims or provided evidence that she is an accredited professional interpreter or translator in a designated language by NAATI to the required level 3.  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

36. 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.

37. The applicant has not made any claims or provided evidence that she has lived in a part of Australia, the postcode which is specified by the Minister in an instrument, and studied in one or more campuses specified by the Minister while meeting the Australian study requirement, and that none of her study undertaken constituted distance education.

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

    Part 6B.10 – Partner Skill Qualifications

39. 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. The applicant has not made claims against the Partner skill qualifications.

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

    Part 6B.11 – State or Territory Nomination Qualifications

41. 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. 

42. The applicant is not nominated by state or Territory government agency. Therefore, the applicant is not entitled any points under this part.

    Part 6B.12 – Designated Area Sponsorship Qualifications

43. 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. 

44. The applicant is not an applicant for a subclass 475 or 487.  Therefore, the applicant is not entitled to any points under this part.

    Conclusion on points under Schedule 6B

45. 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

1. The applicant has therefore not achieved the qualifying score of 120 to pass the points test.

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

   Schedule 6C Points Assessment

2. As noted above, under r.2.26AB, persons who apply for a points tested General Skilled Migration visa between 1 July 2011 and 31 December 2012 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 to determine whether he or she has the qualifying score.  For these purposes, the relevant class of persons are specified in Legislative Instrument IMMI 12/068. 

3. In the present case, the visa application was made in the period 1 July 2011 to 31 December 2012, and the applicant is in the class of persons specified in the written instrument because she applied for a Subclass 485 (Skilled Graduate) visa on or before 8 February 2010 and that application had not been finally determined before 8 February 2010 and on or after 1 July 2010 but before 1 July 2012 she applied for the Subclass 885 visa (See IMMI 12/068, paragraph 3(b)).

4. As the Tribunal has found the applicant’s assessed score under Schedule 6B was less than the applicable pass mark, and the applicant is in the class of persons to which r.2.26AB(2) applies, the Tribunal has assessed the applicant against the Schedule 6C points test.

   Part 6C.1 - Age Qualifications

5. The Tribunal has found that the applicant was aged not less than 25 years and under 33 years at the time of application. The Tribunal finds, therefore, that the applicant is entitled to the maximum 30 points for Part 6C.1 of Schedule 6C.

   Part 6C.2 - English Language Qualifications

6. The applicant provided an IELTS test results dated 4 December 2010; she scored 6.5 for listening, 6.5 for reading, 6 for writing, 6.5 for speaking with an overall score of 6.5.  The Tribunal finds that the applicant has competent English as defined in r.1.15C. 

7. The applicant does not have superior or proficient English as defined and consequently the Tribunal finds that no points are awarded for Part 6C.2 of Schedule 6C.

   Part 6C.3 - Overseas Employment Experience Qualifications

8. The applicant has not made any claims or provided evidence of having eligible overseas employment.  The Tribunal finds, therefore, that no points are awarded for Part 6C.3 of Schedule 6C.

   Part 6C.4 - Australian Employment Experience Qualifications

9. Eligibility for points under this part is determined by an assessment of the applicant’s nominated occupation and work experience for a period totalling 96 months in the 10 years immediately before the day on which the application was made.

10. For the reasons stated previously, the Tribunal has found that the applicant has not been employed in Australia in her nominated skilled occupation, a closely related skilled occupation, or a skilled occupation for a period totalling at least 12 months in the 48 months immediately before the date of application was lodged.

11. Accordingly, the Tribunal finds that the applicant is not entitled to any points for Part 6C.4 of Schedule 6C.

    Part 6C.5 - Aggregating points for Employment Experience Qualifications

12. This is determined by aggregating the applicant’s overseas employment experience and Australian employment experience. Points are awarded if the combined number of points for overseas and Australian skilled exceeds 20 points.  The Tribunal has found that the applicants combined number of points for overseas and Australian skilled employment does not exceed 20 points. 

13. Accordingly, the Tribunal finds that the applicant is not entitled to any points for Part 6C.5 of Schedule 6C

    Part 6C.6 - Australian Professional Year Qualifications

14. The applicant has not made any claims to have undertaken a Professional year in Australia. Accordingly, the Tribunal finds that the applicant is not entitled to any points for Part 6C.6 of Schedule 6C.

    Part 6C.7 - Educational Qualifications

15. The Tribunal is satisfied that the applicant has met the requirements for the award of an Australian diploma by an Australian educational institution. The Tribunal finds, therefore, that the applicant is entitled to 10 points on the basis of Part 6C.8 of Schedule 6C. 

    Part 6C.8 - Australian Study Qualifications

16. The Tribunal is satisfied that all the relevant Australian qualifications she used to meet the Australian study requirement are closely related to her nominated skilled occupation.  

17. The Tribunal finds, therefore, that the applicant is entitled to 5 points on the basis of Part 6C.8 of Schedule 6C.

    Part 6C.9 - Credentialed Community Language Qualifications

18. the applicant has not made any claims or provided evidence of having a credentialed community language qualification. The Tribunal finds, therefore, that the applicant is not entitled to any points for Part 6C.9 of Schedule 6C.

    Part 6C.10 - Study in Regional / Low Population Growth Areas Qualifications

19. The applicant has not made any claims to have studied in a regional or low growth area. The Tribunal finds, therefore, that the applicant is not entitled to any points for Part 6C.10 of Schedule 6C.

    Part 6C.11 - Partner Skill Qualifications

20. The applicant has not made any claims to have a partner. Accordingly, the Tribunal finds that the applicant is not eligible for any points for Part 6C.11 of Schedule 6C.

    Part 6C.12 - State or Territory Nomination Qualifications

21. The applicant has not made an application for a Subclass 176 visa and has not claimed to be entitled to a Subclass 886 visa. Nor is the applicant the subject of an approved nomination by a State or Territory government agency nomination. Accordingly, the Tribunal finds that the applicant is not entitled to any points for Part 6C.12 of Schedule 6C.

    Part 6C.13 - Designated Area Sponsorship Qualifications

22. The application is not based on an approved State /Territory government or family member nomination. The Tribunal finds, therefore, that the applicant is not entitled to any points for Part 6C.13 of Schedule 6C.

    Conclusion on Points for Schedule 6C

23. For the reasons above, the Tribunal finds that the applicant is entitled to 30 points for her age, 10 points for educational qualification, and 5 points for the Australian study requirement.   The Tribunal finds, therefore, that the applicant is entitled to a total of 45 points in accordance with Schedule 6C under the points test as it applied under the Regulations.  

24. At the date of the primary assessment the pass mark was 65 points and the pool mark was 65 points. The Tribunal therefore finds that the applicant has not achieved the qualifying score to pass the points test.

    CONCLUSIONS

25. The Tribunal has found above that the applicant is entitled to 110 points in accordance with Schedule 6B of the Regulations and 45 points in accordance with Schedule 6C of the Regulations.  Accordingly, the applicant has not achieved the qualifying score required to pass the points test or to be placed into the pool.

26. Therefore the applicant does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa.

    DECISION

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

    Antoinette Younes
    Senior Member