1501073 (Migration)

[2015] AATA 3837

1501073 (Migration) [2015] AATA 3837 (9 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alesander Garzon Yepes

CASE NUMBER:  1501073

DIBP REFERENCE(S):  BCC2014/2022059

MEMBER:Alison Mercer

DATE:9 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 09 December 2015 at 11:25am

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 7 January 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) subclass 189 (Skilled - Independent) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 11 August 2014 and applied for the visa on 17 August 2014. The criteria for the grant of a subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214. The delegate found that the applicant was entitled to 50 points out of 65 and therefore failed to meet the score he had himself nominated of 60 points, being the current pass mark. The delegate’s findings were based on the following points allocation for the applicant:

   ·     Age:     25 points

   ·     English proficiency: 0 points

   ·     Overseas employment experience: 0 points

   ·     Australian employment experience:   5 points

   ·     Aggregated employment experience: 0 points

   ·     Educational qualifications:      15 points

   ·     Credentialled community language: 0 points

   ·     Study in regional Australia or area of low metropolitan growth:        0 points

   ·     Partner skills: 0 points

   ·     State/territory nomination: 0 points

   ·     Designated area sponsorship: 0 points

   ·     TOTAL: 50 points

3. The Tribunal received a review application from the applicant on 23 January 2015. It was accompanied by a copy of the delegate’s decision.  The applicant provided various documents to the Tribunal on 28 January 2015, mainly consisting of payslips, tax assessment notifications and employment references attesting to his employment in Australia and overseas in Colombia.

4. On 8 October 2015, the Tribunal wrote to the applicant via email to invite him to attend a hearing on 5 November 2015.

5. The applicant appeared before the Tribunal on 5 November 2015 to give evidence and present arguments. He provided the Tribunal with copies of his payslips from Goodyear Dunlop from November 2009 to January 2012 and a position description for his employment there as a wheel fitter.

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 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’.

8. 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). 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). The relevant instrument for this purpose is Legislative Instrument IMMI 15/091. In the present case, the applicant nominated the occupation of Industrial Engineer.

   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. At the time of invitation, the applicant was aged 37. Therefore, the Tribunal finds that the applicant is entitled to 25 points pursuant to item 6D13 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. An applicant can only be granted points for having proficient English as defined in r.1.15D (10 points) or superior English as defined in r.1.15EA (20 points).

13. The Tribunal is satisfied that the applicant provided with his application an International English Language Testing System (IELTS) test report form indicating that he obtained scores of 6 for listening, 6.5 for reading, 6 for writing and 7 for speaking in a test he undertook on 7 September 2013. 

14. As these scores do not meet the definition of proficient or superior English, the Tribunal finds that 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 delegate allocated the applicant no points under this Part as he noted that the applicant had not made any claims or provided evidence of overseas employment in the 10 years immediately before being invited to apply for the visa.

17. Subsequently, the applicant has provided to the Tribunal documentary evidence of the following overseas employment:

    ·full-time employment as Head of Production with Textiles VMG Ltda in Bogota, Colombia, between 1 October 2002 and 15 November 2005 (as evidenced by a work reference and payslips);

18. The Tribunal considers that the relevant 10 year period for its consideration runs from 7 August 2004 to 7 August 2014. The Tribunal accepts from the description of the applicant’s employment contained in his work reference that he was employed as an Industrial Engineer.

19. As discussed with the applicant at the hearing, the Tribunal finds that not all of the applicant’s employment with Textiles VMG Ltda can be counted, as it does not all fall within the 10 year period immediately before he was invited to apply for the visa. 

20. On the Tribunal’s calculations, the period of overseas employment experience that can be counted runs from 7 August 2004 to 15 November 2005, a period of 14 months.  The Tribunal notes that the minimum period of overseas work experience that entitles an applicant to be awarded points under this Part is 36 months.

21. Therefore, subject to consideration of Part 6D.5, the Tribunal finds that the applicant is not entitled to any points under this part.

    Part 6D.4 – Australian employment qualifications

22. 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.

23. The delegate accepted that the applicant had the following employment work experience in Australia in the 10 years immediately before being invited to apply for the visa:

    ·wheel aligner with Goodyear, Beaurepaires from 2 November 2009 to 14 January 2012; and

    ·wireline field engineer for Weatherford from 16 January 2012 to 31 January 2013.

24. However, the delegate did not accept that the applicant’s employment as a wheel aligner was in his nominated skilled occupation (Industrial Engineer) or a closely related skilled occupation, based on the applicant’s description of his duties when compared to the Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary list of duties for the occupation of Industrial Engineer (ANZSCO code 233511).  The delegate considered that the duties of the wheel aligner position were closer to those of the occupation of Motor Vehicle Parts and Accessories Fitters (ANZSCO Group 8994), which the delegate did not consider to be a closely related skilled occupation to Industrial Engineer.  The delegate further noted that no proof had been provided that the applicant was working at least 20 hours per week for remuneration in this occupation, the minimum required to meet the definition of ‘employed’ in r.2.2AC(6).

25. The delegate therefore allocated the applicant 5 points for having been employed as an Industrial Engineer with Weatherford for at least 12 months.

26. The Tribunal subsequently received additional information from the applicant regarding this Australian employment, including:

    ·letter of reference from Beaurepaires confirming that the applicant worked there from 2 November 2009 to 14 January 2012 as a wheel aligner, in which capacity his duties included fitting and repairing of tyres and wheel alignments and general house cleaning; and

    ·PAYG Payment Summaries for the applicant from Goodyear & Dunlop Tyres (Aust) Pty Ltd for the financial years 2009/10, 2010/11, and 2011/12;

    ·payslips for the applicant from Goodyear & Dunlop Tyres (Aust) Pty Ltd for the period November 2009 to January 2012; and

    ·position description for Tyre Fitter from Goodyear & Dunlop Tyres (Aust) Pty Ltd.

27. At the hearing, the applicant said that he officially worked for Goodyear & Dunlop, but they subcontracted him out to work for Beaurepaires for various periods.  However, he was paid by Goodyear & Dunlop throughout the period above. The applicant said that he had subsequently worked as a Wheel Fitter for Mercedes Benz, which required a higher standard than the work he did for Goodyear & Dunlop and Beaurepaires, but the employment with Mercedes Benz was in 2015, after he was invited to apply for the subclass 189 visa. 

28. The Tribunal discussed with the applicant its preliminary view that his work for Weatherford appeared to be as an Industrial Engineer but his work as a Tyre Fitter for Goodyear & Dunlop and Beaurepaires did not appear to be in his nominated skilled occupation.

29. The applicant concurred that he was not working as an Industrial Engineer at Goodyear & Dunlop and Beaurepaires but stated that it was nevertheless skilled employment with a reasonable degree of autonomy.  He said that he used precision machinery and computer programs to adjust tyres and steering and would check suspension and fuses.  It was similar to being a mechanic, as he would also deal with customers to get information from them and to advise them what he needed to do with their car.  He did balancing, fitting and aligning work.  He was the only wheel aligner in the business throughout his employment there.

30. The Tribunal discussed with the applicant its preliminary view that if this employment was not in his nominated skilled occupation of Industrial Engineer, then it had to be in one of the other skilled occupations listed in the relevant instrument for skilled occupations; in this case, IMMI 15/091.  The Tribunal noted that, from its review of the skilled occupations listed in IMMI 15/091 for these purposes, the occupation(s) of Wheel Fitter or Tyre Fitter was not listed.  It further noted that the closest occupations listed in IMMI 15/091 appeared to be Automotive Electrician (ANZSCO code 321111) or Motor Mechanic (General) (ANZSCO code 321211) but that (subject to its review of their occupational descriptions) both these occupations appeared higher level and wider in their scope than Wheel Fitter or Tyre Fitter. If it found this to be the case, then it would not be able to count this Australian employment experience.

31. The position description provided by the applicant lists the following:

    Safety Performance

    ·Follow Standard Operating Procedures (SOP) to handle all processes and deal with tyre industry hazards;

    ·Support workplace safety, all safety programs and undertake all relevant safety training;

    ·Use the correct personal protective equipment and clothing for the job;

    ·Adhere to all safety policies including smoking, alcohol consumption and non-prescriptive drugs;

    ·Report hazards and incidents promptly to the entire team;

    ·Adhere to tag out procedures for faulty or damaged equipment, and maintain store premises and equipment;

    ·Adhere to company car policies for customer and company car use;

    ·Maintain a current driver’s license;

    ·Help keep the store clean to reduce the risk of accidents and incidents;

    Technical job Skills

    ·Organise, prioritise and complete written and verbal work instructions, and correctly complete all relevant paperwork;

    ·Use approved company procedures (or relevant SOPs) and following training guidelines and manufacturers’ specifications related to:

    oRemoving existing tyres and fitting replacement tyres;

    oDiagnosing and assessing tyre damage and wear;

    oSelecting correct tyres, tubes, rims and accessories;

    oDiagnosing wheel balance problems and balancing wheels;

    ·Use approved company procedures (or relevant SOPs) and following training guidelines and manufacturers’ specifications related to:

    oLocating and assessing a puncture;

    oRepairing a tubeless tyre;

    oRepairing or replacing a damaged tube;

    Physical Job Skills

    ·Sustained concentration and precise monitoring of machinery (frequent);

    ·Sustained awareness of surroundings – to hear for vehicles, warning sirens etc (frequent);

    ·Driving vehicles on-road and in-store – GDT and general public vehicles. In-storing driving involves precision parking on hoists, lifts etc (frequent);

    ·Lift capacity either solely or in a team of passenger, light truck, commercial, agriculture, OTR or industrial tyres up to 30kg (frequently);

    ·One-sided carry of up to 15kg (frequently);

    ·Application of force through arms/hands when using tools such as mallets, tyre levers and spanners of approximately 40kg (occasional);

    ·Lie on back (occasional);

    ·Sustained squatting (occasional);

    ·Awkward posturing (occasional);

    ·Working at varying heights (occasional);

    ·Work on rough/uneven ground (occasional);

    ·Pushing and pulling (frequently);

    ·Sustained standing (frequently);

    ·Operate push-button machinery (hoists/lifts etc) (frequent);

    ·Desk-based computer work (occasional)

    ·Greeting customers/customer service (occasional);

    Customer Service

    ·Follow the Customer Service Guarantee and other customer service standards;

    ·Apply our telephone technique and selling methodology;

    ·Maintain personal presentation and grooming;

    ·Use appropriate behaviour around customers and the team;

    Professional development

    ·Complete and follow all training related to the position (eg technical job skills, safety, customer service);

    ·Maintain up-to-date product knowledge;

    Teamwork

    ·Participate as part of the store team by working with and supporting other team members to achieve store goals;

    ·Support the store and team by completing any other reasonable duties, as directed by store manager;

    ·Actively participate in team meetings and follow up all outcomes;

    Additional duties

    ·Perform other duties reasonably expected to be performed with your level of competence, as directed by store manager or other authorised senior associate.

32. The ANZSCO occupational description for an Industrial Engineer, an Automotive Electrician and a Motor Mechanic (General) are as follows:

    UNIT GROUP 2335 INDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERS

    
    INDUSTRIAL, MECHANICAL AND PRODUCTION ENGINEERS design, organise and oversee the construction, operation and maintenance of mechanical and process plant and installations, establish programs for the coordination of manufacturing activities, and ensure usage of resources is cost effective.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Registration or licensing may be required.

    Tasks Include:

    ostudying functional statements, organisational charts and project information to determine functions and responsibilities of workers and work units and to identify areas of duplication

    oestablishing work measurement programs and analysing work samples to develop standards for labour utilisation

    oanalysing workforce utilisation, facility layout, operational data and production schedules and costs to determine optimum worker and equipment efficiencies

    odesigning mechanical equipment, machines, components, products for manufacture, and plant and systems for construction

    odeveloping specifications for manufacture, and determining materials, equipment, piping, material flows, capacities and layout of plant and systems

    oorganising and managing project labour and the delivery of materials, plant and equipment

    oestablishing standards and policies for installation, modification, quality control, testing, inspection and maintenance according to engineering principles and safety regulations

    oinspecting plant to ensure optimum performance is maintained

    odirecting the maintenance of plant buildings and equipment, and coordinating the requirements for new designs, surveys and maintenance schedules

    
    Occupations:

    233511 Industrial Engineer
    233512 Mechanical Engineer
    233513 Production or Plant Engineer

    
    233511 INDUSTRIAL ENGINEER

    
    Investigates and reviews the utilisation of personnel, facilities, equipment and materials, current operational processes and established practices, to recommend improvement in the efficiency of operations in a variety of commercial, industrial and production environments. Registration or licensing may be required.

    Skill Level: 1
    Specialisation:

    Process Engineer (Industrial)

    …

    UNIT GROUP 3211 AUTOMOTIVE ELECTRICIANS

    
    AUTOMOTIVE ELECTRICIANS install, maintain and repair electrical wiring and electronic components in motor vehicles.

    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Registration or licensing may be required.
    Tasks Include:

    ousing test equipment to locate electrical and electronic malfunctions

    odismantling and removing electrical and electronic assemblies and components

    oinstalling electrical equipment and electronic components in motor vehicles

    oconnecting power-operated vehicle equipment and accessories to power supply

    oadjusting engine control systems and timing

    otesting and replacing defective alternators, generators, voltage regulators and starter motors

    orepairing and replacing faulty ignition and electrical wiring

    oreplacing defective parts such as fuses, lamps and switches

    
    Occupation:

    321111 Automotive Electrician

    
    321111 AUTOMOTIVE ELECTRICIAN

    
    Alternative Title:

    Automotive Electrical Fitter

    
    Installs, maintains and repairs electrical wiring and electronic components in motor vehicles. Registration or licensing may be required.

    Skill Level: 3

    …

    UNIT GROUP 3212 MOTOR MECHANICS

    
    MOTOR MECHANICS repair, maintain and test motor vehicle and other internal combustion engines and related mechanical components.

    Motor Vehicle Parts and Accessories Fitters are excluded from this unit group. Motor Vehicle Parts and Accessories Fitters are included in Unit Group 8994 Motor Vehicle Parts and Accessories Fitters.
    Indicative Skill Level:
    Most occupations in this unit group have a level of skill commensurate with the qualifications and experience outlined below.
    In Australia:

    AQF Certificate III including at least two years of on-the-job training, or AQF Certificate IV (ANZSCO Skill Level 3)

    
    In New Zealand:

    NZ Register Level 4 qualification (ANZSCO Skill Level 3)

    
    At least three years of relevant experience may substitute for the formal qualifications listed above. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.

    Registration or licensing may be required.
    Tasks Include:

    odetecting and diagnosing faults in engines and parts

    odismantling and removing engine assemblies, transmissions, steering mechanisms and other components, and checking parts

    orepairing and replacing worn and defective parts and reassembling mechanical components, and referring to service manuals as needed

    operforming scheduled maintenance services, such as oil changes, lubrications and engine tune-ups, to achieve smoother running of vehicles and ensure compliance with pollution regulations

    oreassembling engines and parts after being repaired

    otesting and adjusting mechanical parts after being repaired for proper performance

    odiagnosing and testing parts with the assistance of computers

    omay inspect vehicles and issue roadworthiness certificates or detail work required to achieve roadworthiness

    
    Occupations:

    321211 Motor Mechanic (General)
    321212 Diesel Motor Mechanic
    321213 Motorcycle Mechanic
    321214 Small Engine Mechanic

    
    321211 MOTOR MECHANIC (GENERAL)

    
    Alternative Title:

    Automotive Light Mechanic

    
    Maintains, tests and repairs petrol engines and the mechanical parts of lightweight motor vehicles such as transmissions, suspension, steering and brakes. Registration or licensing may be required.

    Skill Level: 3
    Specialisations:

    Automatic Transmission Mechanic
    Automotive Airconditioning Mechanic
    Brake Mechanic
    Ground Support Equipment Fitter (Air Force)
    Vehicle Mechanic (Army)

    …

1. While the Tribunal accepts that the duties provided by the applicant have some cross-over with some of the above listed tasks, it does not consider that the applicant’s role with Goodyear & Dunlop/Beaurepaires falls within the skill level or scope of any of them.  It considers that it is more accurately aligned with the occupation of Motor Vehicle Parts and Accessories Fitters (ANZSCO Group 8994).  As this is not a skilled occupation listed in IMMI 15/091, the Tribunal is unable to take into account for the purposes of this Part.  The Tribunal therefore concurs with the delegate’s allocation of 5 points for the applicant’s over 12 but less than 36 months of employment experience as an Industrial Engineer with Weatherfords in the relevant 10 year period prior to being invited to apply for this visa.

2. Therefore, subject to consideration of Part 6D.5, the Tribunal finds that the applicant is entitled to 5 points under Part 6D41 of this part.

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

3. 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.

4. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 points. As this is not more than 20 points, the Tribunal finds that the applicant is not entitled to any points under this part.

   Part 6D.6 – Australian professional year qualifications

5. 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.

6. There is no documentary evidence before the Tribunal to indicate that the applicant completed a specified professional year, despite the fact that he claimed to have completed a Professional Year Program run by Engineers Australia in his visa application.  The Tribunal notes that he was requested to provide evidence of this but did not do so.

7. At the hearing, the applicant clarified with the Tribunal that he had misunderstood this requirement and assumed that the fact that he was an Industrial Engineer with a skills assessment to this effect issued to him by Engineers Australia, he met this requirement.  He conceded that he had not undertaken a Professional Year as an engineer with Engineers Australia.

8. Accordingly, the Tribunal finds that the applicant is not entitled to any points under this Part.

   Part 6D.7 – Educational qualifications

9. 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.

10. The Tribunal concurs with the assessment of the delegate that the applicant’s Bachelor degree from Colombia would meet the requirements for the award of an overseas qualification of a recognised standard.

11. The Tribunal considers he is entitled to 15 points for the award of at least a Bachelor qualification by another institution that is of a recognised standard, pursuant to item 6D73 of this Part.

    Part 6D.8 – Australian study qualifications

12. 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.

13. The Tribunal is satisfied that the applicant met the Australian study requirement, as defined in r.1.15F, at the time of his invitation, on the basis that he had at that time completed the following registered courses:

    ·Certificates III and IV in Auto Tech at Menzies Institute of Technology (10 September 2007 to 17 February 2009); and

    ·Diploma of Business Management at the same education provider (9 February 2009 to 17 July 2009).

14. The Tribunal is satisfied that the Certificates III and IV in Auto Tech are trade qualifications for these purposes, according to r.2.26AC(6).  The Tribunal is further satisfied that these courses were completed over a total of at least 16 calendar months, comprised at least 2 academic years of study and were conducted in English while the applicant held visas entitling him to study. 

15. As the Australian study requirement had been met at the time of invitation, the Tribunal finds that the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

16. 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.

17. The Tribunal is satisfied that the applicant did not provide any evidence of having a qualification in a particular language awarded or accredited by a specified body, and at a specified standard at the time he was invited to apply for the visa.

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

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

19. 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.

20. There is no evidence before the Tribunal to indicate that the applicant met the Australian study requirement due to study that was undertake in a specified area of Australia where the applicant was also living.

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

    Part 6D.11 – Partner Skill Qualifications

22. 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.

23. The applicant indicated in his visa application that he was single.

24. Accordingly, the Tribunal finds that the applicant is not entitled to any points under this Part.

    Part 6D.12 – State or Territory nomination qualifications

25. Points are available under this Part in certain circumstances for applicants who were invited to apply for a subclass 190 (Skilled - Nominated) visa. The applicant in this case has not been invited to apply for such a visa and the Tribunal finds that he is therefore not entitled to any points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

26. 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 the Tribunal finds that he is therefore not entitled to any points under this part.

    Conclusion on points

27. 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 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  5 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 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  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  50 points

28. The applicant’s assessed score under the points system is therefore 50 points.

29. At the time of the delegate’s assessment, the pass mark was 60 points: Legislative Instrument IMMI 15/091. 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?

30. The Tribunal notes that the relevant instrument remains IMMI 15/091, and thus the pass mark remains 60 points.  The Tribunal finds that the applicant has not achieved the qualifying score at the time of this decision to pass the points test.

    Has the applicant achieved the score stated in the invitation to apply for the visa?

31. It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 65 points. On the basis of the points assessment above, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa.

32. For the above reasons, the applicant is entitled to a maximum of 50 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

33. Moreover, the Tribunal finds that as the applicant’s score is less than the score stated in the invitation to apply for the visa, he also does not satisfy cl.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Alison Mercer
    Member