1500495 (Migration)

[2016] AATA 4118

1500495 (Migration) [2016] AATA 4118 (18 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Subash Pokharel
Mrs Nirjala Pokharel Phuyal
Miss Sadhana Pokharel

CASE NUMBER:  1500495

DIBP REFERENCE(S):  BCC2014/683366

MEMBER:Antoinette Younes

DATE:18 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 18 July 2016 at 12:08pm

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 on 12 January 2015 to refuse to grant the applicants Skilled - Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 6 March 2014 and applied for the visa on 10 March 2014. The criteria for the grant of a Subclass 190 visa are set out in Part 190 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.190.214.

4. The first-named applicant appeared before the Tribunal on 15 July 2016 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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 first-named applicant (applicant) satisfies the points test criterion which requires that the applicant’s score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act:

   ·is not less than the score stated in the invitation to apply for the visa and

   ·is not less than the ‘qualifying score’.

7. Subdivision B of Division 3 of Part 2 of the Act provides for a points system under which an applicant is given an assessed score based on a prescribed number of points for particular attributes. The qualifications and points applicable to this case are prescribed in Schedule 6D to the Regulations (r.2.26AC). An 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).

8. The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D, 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. Some elements of the points test relate to the nominated skilled occupation. An occupation is a ‘skilled occupation’ if: it is specified by the relevant instrument 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 Accountant General (ANZSCO 2211-11).

   Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

   Part 6D.1 – Age qualifications

10. Points are available under this Part if the applicant was aged between 18 and 44 years at the time of invitation to apply for the visa.

11. The applicant’s date of birth is 18 August 1980. At the time of invitation the applicant was aged not less than 18 years and under 25 years. Therefore, the applicant is entitled to 25 points under this part.

    Part 6D.2 – English language qualifications

12. Points are available under this Part on the basis of the applicant’s level of English language proficiency at the time of invitation to apply for the visa.

13. The applicant has provided an IELTS test report form referring to a test taken on 23 February 2013, in which he scored 8 for listening, 6.5 for reading, 7 for writing, 7 for speaking, with an overall score of 7.

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

    Part 6D.3 – Overseas employment experience qualifications

15. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed outside Australia in the applicant’s nominated skilled occupation or a closely related skilled occupation for at least 36, 60, or 96 months in the 10 years immediately before that time.

16. The applicant was invited to apply for the visa on 6 March 2014, the relevant timeframe for the purposes of determining whether the applicant satisfies the overseas employment experience qualifications is between 6 March 2004 and 6 March 2014. Any employment prior to or after this period is not relevant.

17. The applicant has claimed that he worked as an accountant at Alternative Herbal Products Pty LTD (AHP), Nepal, between 1 March 2004 and 14 December 2007.

18. In the course of the hearing, the applicant gave evidence that prior to working at AHP, he worked as an assistant accountant/field supervisor part-time at CAED in 2001 and 2002. He stated that CAED is a shareholder and board member of AHP and that it was through CAED’s recommendations that he obtained employment with AHP.

19. In relation to his duties at AHP, the applicant stated that he was involved in bookkeeping, payroll, accounts payable/receivable, sales forecasting, budgeting, reporting, and reconciliation. He stated that the auditor assisted with tax matters. The Tribunal asked the applicant if he had prepared any entries for the Board of Directors and other shareholders to which the applicant replied that he made entries on books in relation board meetings and public notices. The Tribunal indicated to the applicant that in the decision record provided by the applicant in support of the application for review, it is noted that on 23 July 2014, departmental officers contacted him over the telephone and when he was asked if he had ever prepared any entries for the board of directors and other shareholders, he stated that he had not. The Tribunal indicated that there is therefore an inconsistency in the information that he had provided. The applicant responded that he did not understand the question when he was contacted by the departmental officer. The Tribunal indicated that it would further consider his explanation but the inconsistency could raise doubts about the veracity of the information that he has provided.

20. The Tribunal asked the applicant if at AHP he was involved in tax records and tax advice to the company and he stated that he was involved in tax records, such as compiling documents and evidence, but the auditor lodged the tax return. The Tribunal asked him if he had provided any tax advice at AHP and the applicant stated that he did; he gave an example about tax advice in relation to the tax liability concerning the use of timber forest products. The Tribunal referred tp the decision record noting that during contact with departmental officers when the applicant was asked about tax records and tax advice to the AHP, the applicant stated that all taxation matters were handled by the referee, namely, the Managing Director. The Tribunal asked the applicant why he provided different responses. The applicant replied that he now understands the question better than when it was asked over the telephone. He stated that he found the questions by the departmental officer to be confusing. The Tribunal indicated that would further consider his explanations.

21. The Tribunal referred the decision record noting that during contact with departmental officers when the duties listed in the ANZSCO for an accountant were described to him, he acknowledged that he had not performed those duties. The applicant denied that he had stated in that interview that he did not perform the described duties. The applicant gave evidence that when he was contacted by the Department, it was 5.30 in the afternoon and he was looking after his 18 months old daughter. The Tribunal asked him if the officer who contacted him had checked with him if it was a convenient time and he stated that the officer did ask and that he told the officer that it was a suitable time. He stated that he believed the interview went well and that the interview took about 20 to 25 minutes. The applicant stated that the officer who contacted him was from the Australian High Commission in New Delhi and that he could tell from his accent that he was of Indian background. The applicant stated that he felt that the officer would naturally favour an Indian applicant rather than a Nepalese applicant, such as himself. The applicant was very careful not to suggest that he was discriminated against but he essentially said that as a Nepalese applicant, he would not have been treated favourably by an officer from an Indian background. The applicant confirmed that he did not feel rushed during the interview.

22. The Tribunal referred the delegate’s decision record noting that on 23 July 2014, departmental officers contacted AHP over the telephone and spoke with the referee who was the Managing Director who was unable to provide any documentary evidence of the applicant’s employment other than the two employment references provided with the application. The Managing Director also confirmed that Mr Bhawani Oli (migration agent) helped him to prepare the reference letters.  The applicant confirmed that Mr Oli has been his migration agent and that he did not know that he had prepared the reference letters as claimed. The applicant stated that Mr Oli and the Managing Director were from the same town in Nepal and had in the past shared accommodation. He stated that the Managing Director does not understand “anything”.

23. The Tribunal discussed with the applicant the documents which he had provided to the Department, in relation to his employment at AHP and CAED:

    a.A reference letter signed by the Managing Director dated 15 May 2014 stating that the applicant was employed as a full-time accountant from 1 March 2014 to 14 December 2007. The letter stated that the applicant was paid in cash.

    b.A reference letter signed by the Managing Director dated 15 December 2007 stating that the applicant was employed as a full-time accountant from 1 March 2004 to 14 December 2007 in the account and marketing Department. The work of reference listed the applicant’s duties as payroll processing, accounts receivable/payable, banking, stock management, reconciliation and preparing monthly, quarterly and annual financial statements. The letter also noted that the applicant provided assistance with budgeting, sales forecasting, management reporting and market research.

    c.A letter of appointment signed by the Managing Director dated 19 March 2004 offering the applicant the position of accountant.

    d.Letter from the founder of CAED dated 12 September 2014 essentially referring to the applicant’s good integrity.

24. The Tribunal referred to the applicant’s responses to the Department and indicated that it would further consider the documents provided in relation to his employment as well as his responses.

25. The Tribunal has found the applicant’s evidence in the course of the hearing in relation to his employment at AHP to be inconsistent with information that he has previously provided. Whilst the Tribunal accepts that when the departmental officer contacted the applicant, he was looking after his 18 months old daughter, which naturally would have been an important context to take into account. However, the applicant acknowledged that the departmental officer had asked him whether it was an appropriate time and the applicant confirmed that it was. The Tribunal has carefully considered the applicant’s explanations including that the context of looking after his daughter was not ideal and that the questions asked by the officer were confusing, however the Tribunal is neither persuaded nor convinced by those explanations.

26. The applicant’s acknowledgement in that interview that he did not perform the duties as listed in the ANZSCO leads the Tribunal to prefer this version of the applicant’s duties because the responses provided by the applicant in the course of the departmental telephone interview were spontaneous, unrehearsed and consequently are more likely to have been reflective of the truth. The Tribunal is of the view that the inconsistencies are significant; they relate to the core of the applicant’s claims such as the duties he performed and consequently the Tribunal is satisfied that the inconsistencies raise serious doubts about the applicant’s claims that he had worked at AHP in the claimed duties. On the evidence before it, the Tribunal is satisfied that Mr Oli had drafted the references signed by Mr Ghimire and that the references did not reflect accurately the applicant’s employment or the duties he performed at  AHP. Consequently, the Tribunal does not give weight to those references.

27. In consideration of the evidence as a whole and given the above noted concerns, whilst the Tribunal accepts as plausible that the applicant might have been employed in some capacity at AHP, the Tribunal is not satisfied that the applicant was employed at AHP for any period as an Accountant. In essence and for the stated reasons, the Tribunal does not accept that the applicant was employed to the requisite skill level as a skilled accountant or that he carried out the duties of an accountant or any other related skilled occupation. Consequently, the Tribunal is not satisfied that at the time of invitation, the applicant was employed outside Australia in a nominated skilled occupation or a closely related skilled occupation in the 10 years immediately before that time. Therefore, the applicant is not entitled to any points under this part.

    Part 6D.4 – Australian employment qualifications

28. Points may be available under this Part if, at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated occupation or a closely related skilled occupation for at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

29. The applicant has claimed that he worked as an accountant at TG Lumley Pty LTD, Australia, from 1 April 2013 to 10 March 2014. In the course of the hearing, he agreed that he cannot be awarded any points under this part because the period of employment was not for at least 12 months, or for a period totalling at least 36 months, or for a period totalling at least 60 months, or for a period totalling at least 96 months in the 10 years immediately before the date of invitation to apply for the visa.

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

    Part 6D.5 - Aggregating points for employment experience qualifications

31. Under this part, if an applicant has qualifications mentioned in both Parts 6D.3 and 6D.4 and the combined number of points that would be awarded under those Parts is more than 20 points, 20 points must be given under this Part for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

32. The Tribunal finds that the combined number of points that have been awarded under those parts is less than 20 points and therefore the applicant is not entitled to any points under this Part.

    Part 6D.6 – Australian professional year qualifications

33. Five points are available under this part if, at the time of invitation to apply for the visa, the applicant had 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 at least 12 months in the immediately preceding 48 months.

34. On the basis of the available information, the Tribunal is satisfied that the applicant has completed a skilled migration internship program – accounting (SMIPA) and therefore the Tribunal awards 5 points under this part.

    Part 6D.7 – Educational qualifications

35. An applicant may be entitled to points under this Part if, at the time of invitation to apply for the visa, he or she had met the requirements for the award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, duration of the study and any other relevant matter.

36. The applicant has provided evidence of his educational qualifications including a skills assessment from the Institute of chartered accountants in Australia stating that his qualifications have been recognised as being commensurate with at least an Australian bachelor degree, a letter of completion and other documents from the University of Southern Queensland indicating that on 23 November 2012 he had completed a Master of professional accounting, a letter from the Australian Institute of professional education indicating that the applicant had completed a diploma of business on 12 June 2010. The Tribunal is therefore satisfied that the applicant at the time of invitation had met the requirements for the award of at least a bachelor degree by an Australian educational institution

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

    Part 6D.8 – Australian study qualifications

38. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in r.1.15F of the Regulations. To meet the study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study, and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

39. The applicant has provided documents of relating to his Australian study qualifications and based on that evidence, the Tribunal is satisfied that the applicant meets the Australian study requirements and therefore, the Tribunal finds that he is entitled to 5 points under this Part.

    Part 6D.9 – Credentialled community language qualifications

40. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

41. The applicant has not claimed or provided any evidence that he is entitled to any points under this Part. Therefore, no points are awarded.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

42. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement (as defined in r.1.15F), 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. There is no evidence and the applicant has not claimed that he meets the Australian study requirement at a location specified in the relevant instrument.

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

    Part 6D.11 – Partner Skill Qualifications

44. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is also an applicant for the same visa subclass and is not an Australian citizen or permanent resident. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English. The applicant has not made or provided any evidence about the Partner skill qualifications and consequently, the applicant is not entitled to any points under this part.

    Part 6D.12 – State or Territory nomination qualifications

1. Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa. The applicant has been invited to apply for a subclass 190.  Therefore, the applicant is entitled to five points under this part.

   Part 6D.13 – Designated area sponsorship qualifications

2. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

   Conclusion on points

3. Based on the above assessment, the number of points to be awarded to the applicant under Schedule 6D is:

   6D.1 - Age  25 points

   6D.2 - English language  0 points

   6D.3 - Overseas employment experience  0 points

   6D.4 - Australian employment experience  0 points

   6D.5 - Aggregated employment  0 points

   6D.6 - Australian professional year  5 points

   6D.7 – Educational  15 points

   6D.8 - Australian study  5 points

   6D.9 - Credentialled community language  0 points

   6D.10 - Study in regional / low-population area  0 points

   6D.11 - Partner skill  0 points

   6D.12 - State or Territory nomination  5 points

   6D.13 - Designated area sponsorship  0 points

   Total points  55 points

4. The applicant’s assessed score under the points system is therefore 55 points.  At the time of the delegate’s and Tribunal’s assessments, the pass mark is 60 points: Legislative Instrument IMMI12/017. The applicant has therefore not achieved the qualifying score to pass the points test.  For the above reasons, the applicant is entitled to a maximum of 55 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.190.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

5. In relation to the two secondary applicants, as the Tribunal has found that the applicant does not satisfy cl. 190.214, the Tribunal finds that those applicants do not meet cl. 190.311 because they are not members of the family unit of a person who holds a subclass 190 visa. The Tribunal further finds that the two secondary applicants have not been invited by the Minister to apply for the visa and consequently the Tribunal finds that they do not meet cl. 190.211. Accordingly, the Tribunal finds that the secondary applicants do not satisfy the criteria for the grant of a subclass 190 visa.

   DECISION

6. The Tribunal affirms the decision not to grant the visas.

   Antoinette Younes

   
   Senior Member