1500136 (Migration)

[2015] AATA 3128

1500136 (Migration) [2015] AATA 3128 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ramandeep Kaur Mangat
Mr Sanjeev Kumar Sharma

CASE NUMBER:  1500136

DIBP REFERENCE(S):  BCC2010/231653

MEMBER:Filip Gelev

DATE:6 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 06 July 2015 at 6:14pm

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 8 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 17 December 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 necessary ‘qualifying score’

4. The applicants appeared before the Tribunal on 26 May 2015 to give evidence and present arguments.

5. The applicants were represented in relation to the review by their 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). As this application was lodged prior to 1 July 2011, the applicant is only entitled to be assessed under Schedule 6B.

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). The relevant instrument for this purpose is Legislative Instrument IMMI 12/068. In the present case, the applicant nominated the occupation of Cook (ANZSCO[1] Code 451311).

   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

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 was assessed as a Cook by the relevant skills assessing authority on 20 May 2010.

12. Therefore, the applicant is entitled to 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 was born on 1 June 1982. She was 28 years old at the time of 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. If the applicant has competent English (r.1.15C) he would be entitled to 15 points; for proficient English he would be awarded 25 (r.1.15D).

16. Regulation 1.15C relevantly provides that a person has ‘competent English’ if he or she achieves, in a test conducted in the 2 years immediately before the day on which the application was lodged, a score as specified in the instrument. In this case a score of at least 6.0 for each of the 4 test components of speaking, reading, writing and listening in an International English Language Testing System (IELTS) test, or a score of at least ‘B’ in each of the four test components of an Occupational English Test (‘OET’), is required. The applicant has in the past, on more than one occasion, achieved scores of 6.0 or more in each of the 4 bands of IELTS.

17. Regulation 1.15D relevantly provides that a person has ‘proficient English’ if  he or she achieves, in a test conducted in the 2 years immediately before the day on which the application was made, a score specified in the instrument. In this application a score of at least 7.0 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of at least ‘B’ in each of the four test components of an OET is required.

18. For applications, such as this one, lodged prior to 1 July 2011, an applicant can undertake an IELTS test at any time up until the date of decision: Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (5 March 2010).

19. At the hearing the applicant provided copies of recent IELTS tests take in the period 16 August 2014 to 14 March 2015. She came closest to achieving 7.0 in all bands in the test of 6 September 2014 (7.5 in listening, 7.0 in reading, 6.5 in writing and 7.0 in speaking). The scores did not in fact improve in the next 5 or so months. In the test she took on 14 March 2015, she achieved a score of 7.5 in listening, but below 7.0 in the other 3 bands.

20. The Tribunal gave her until 26 June to provide the results of one more IELTS test. The Tribunal advised the applicant that as she had applied for the visa almost 5 years earlier and had been living in Australia since 2007, her IELTS scores seem unlikely to improve after such a long time. The Tribunal observed that therefore it might not agree to delay making a decision after 26 June 2015.

21. In any event, as of the date of the decision the applicant has not provided any further results of an IELTS test, nor asked for further time in order to sit another IELTS test or to have a recent IELTS test remarked. In these circumstances, the Tribunal has decided to proceed to a decision without taking any further action.

22. Therefore, the applicant has only demonstrated competent English and she is entitled to 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 has made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

25. Therefore, the applicant is entitled to no 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 made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

28. Therefore, the applicant is entitled to no 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. The applicant completed a Diploma of Hospitality Management at Holmes Institute of TAFE from 12 November 2007 and 17 December 2009.

31. She satisfies the Australian study requirement as defined in r.1.15F.

32. 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 made no claims and there is no evidence concerning the applicant’s eligibility for points under this part.

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

    Part 6B.8 – Designated Language Qualifications

36. 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.  Designated languages are specified by the Minister.

37. The applicant has a degree, which was taught in Punjabi. The Punjabi language is a designated one under the relevant instrument.

38. Therefore, the applicant is entitled to 5 points under this part.

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

39. 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.

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

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

    Part 6B.10 – Partner Skill Qualifications

42. 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.

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

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

    Part 6B.11 – State or Territory Nomination Qualifications

45. 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. 

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

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

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

    Part 6B.12 – Designated Area Sponsorship Qualifications

49. 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.

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

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

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

    Conclusion on points

53. 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  5 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  115 points

54. 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.

55. 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?

56. As the applicant has failed to achieve the pool or pass mark, the Tribunal must also consider the Regulations in force including Schedule 6B at the time of the Tribunal’s assessment. There has not been any change to the relevant Regulations and the Tribunal find that the points assessment remains unchanged. The Tribunal finds, therefore, that the applicant has not achieved the qualifying score to pass the points test.

57. For the above reasons, the applicant is entitled to a maximum of 115 points under the points test. At the relevant times the pass mark was 120 points. 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.

58. The Tribunal has some sympathy for the applicants who are hoping to receive some money from their former employer Farok Shaik. The Tribunal accepts that the Fair Work Ombudsman has commenced proceedings against Mr Shaik – Fair Work Ombudsman v Farok Shaik, MLG2586/2014, Federal Circuit Court of Australia, Melbourne Registry.

59. The Fair Work Ombudsman is seeking the recovery of a substantial amount of money, $85,844.68 in total for the two applicants. The matter did not schedule at mediation on 9 June 2015 and it would appear that it is going to trial. When the Tribunal contacted the Federal Circuit Court on 26 June 2015, the advice received was that the case is listed for a directions hearing on 4 August 2015. This is not a matter relevant to the criteria for the grant of the visa and the Tribunal has decided to proceed to a decision.  

60. The second named applicant has not made any claims that he satisfies the primary criteria for the grant of the visa.

61. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Filip Gelev
    Member