1504554 (Migration)

1504554 (Migration) [2016] AATA 3040 (13 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muditha Chandrakumara Kalutotage
CASE NUMBER:  1504554
DIBP REFERENCE(S):  BCC2011/457550
MEMBER:Di Hubble
DATE:13 January 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Statement made on 13 January 2016 at 11:38am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 5 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).
The delegate refused to grant the visa on 13 March 2015 on the basis that the applicant did not satisfy cl.885.221 of the Regulations because the delegate was not satisfied the applicant achieved the qualifying score in either of the points tests prescribed under Schedule 6B or Schedule 6C.
The applicant, who was represented by a registered migration agent, sought review of the delegate’s decision on 2 April 2015. A copy of the delegate’s decision accompanied the review application.
The applicant appeared before the Tribunal on 8 January 2016 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal 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).
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, as in this case, 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).
The applicant was assessed by the delegate against Schedules 6B and 6C. The applicant is entitled to be assessed against Schedule 6B because he is in a class of persons to whom r.2.26AA(2) and 2.26AB(2) applies. The Tribunal must consider the regulations and the pool and pass marks in force at the time of the delegate's assessment (primary assessment) and as in force at the time of this assessment (review assessment) and apply whichever is more favourable to the applicant (s.350). At both the time of the delegate's assessment and the time of the review assessment, this requires that the applicant achieves a score of at least 120 points when assessed against Schedule 6B or, if the applicant does not meet this test, he must achieve a score of 65 points when assessed against Schedule 6C.
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
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.
The Tribunal is satisfied that the applicant nominated a skilled occupation at the time of application, namely, ‘Accountant (General)’ (ANZSCO Code 211111). The relevant instrument in writing, IMMI 12/068, specifies that 60 points are available for this occupation. In addition, the applicant has a skills assessment, dated 24 February 2009, from CPA Australia for his nominated skilled occupation of ‘Accountant (General)’ (ANZSCO Code 221111).
As a result, the Tribunal finds that the applicant is entitled to 60 points under this part.
Part 6B.2 – Age Qualifications
Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.
According to his Sri Lankan passport, the applicant was born in 1976. He was, therefore, aged not less than 35 years and under 40 years at the time of application.
Accordingly, the Tribunal finds that the applicant is entitled to 20 points under this part.
Part 6B.3 – English Language Qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency.
For visa applications made on or after 1 July 2011 but before 1 July 2012, r.1.15D provides that if a person applies for a General Skilled Migration visa, the person has proficient English if he or she satisfies the Minister that:
·the person undertook a language test, specified in an instrument in writing; and
·the test was conducted in the 2 years immediately before the day on which the application was made; and
·the person achieved a score specified in the instrument.
For visa applications made on or after 1 July 2011 but before 1 July 2012, r.1.15C provides that if a person applies for a General Skilled Migration visa, the person has competent English if he or she satisfies the Minister that:
·the person undertook a language test, specified in a written instrument; and
·the test was conducted in the 2 years immediately before the day on which the application was made; and
·the person achieved a score specified in the instrument.
Alternatively, a person has competent English if she or he satisfies the Minister that they hold a passport of a type specified in the applicable instrument.
The relevant instrument (IMMI 15/005) specifies for r.1.15D (ie. proficient English) either an IELTS test with a score of at least 7.0 in each of the 4 test components of speaking, reading, writing and listening or a score of at least ‘B’ in each of the four test components of an OET.
IMMI 15/005 specifies for r.1.15C (ie. competent English) either an IELTS test with a score of at least 6.0 in each of the 4 test components of speaking, reading, writing and listening or a score of at least ‘B’ in each of the four test components of an OET.
For r.1.15C(2) IMMI 15/005 specifies a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country. The applicant does not meet this requirement as he holds a Sri Lankan passport.
There is also no evidence that the applicant undertook an OET in the 2 years immediately before he lodged his visa application.
According to the primary decision the applicant provided an IELTS test result, which indicated he had competent English.
At his Tribunal hearing, the applicant submitted a number of IELTS results for tests that were undertaken in the 2 years immediately before he lodged his visa application. He also submitted several IELTS results for tests taken both before and after this timeframe. The Tribunal notes, however, that it can only consider outcomes for tests conducted in the 2 years immediately before the day on which the application was made, which in this instance was 5 October 2011.
The following IELTS test results fall within that period:
·19/3/11 – listening 7.0, reading 6.0, writing 6.5, speaking 7.0;
·16/4/11 – listening 6.5, reading 6.0, writing 6.0, speaking 6.5;
·7/5/11 – listening 6.5, reading 7.0, writing 6.5, speaking 6.0;
·30/7/11 – listening 6.0, reading 6.5, writing 6.0, speaking 7.0.
Based on these results, the Tribunal finds that the applicant does not have ‘proficient English’ as defined in regulation 1.15D. However, the Tribunal finds that the applicant does have ‘competent English’, as defined in regulation 1.15C.
Accordingly, the Tribunal finds that the applicant is entitled to 15 points under this part.
Part 6B.4 – Specific Employment Qualifications
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.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Accordingly, based on the evidence before it, the Tribunal finds that the applicant was not employed in a skilled occupation for at least 36 months in the 48 months immediately before he applied for the visa.
Therefore, the applicant is not entitled to any points under this part.
Part 6B.5 – Australian Employment Qualifications
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.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6B.6 – Australian Educational Qualifications
An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia, as follows:
·25 points where an applicant has met the requirements for award of a doctorate by an Australian educational institution as a result of a course of study of at least 2 academic years;
·15 points where an applicant has undertaken a course of study in Australia of at least 3 academic years, in English, and has met the requirements for the award of either a masters degree, or an honours degree for which they achieved second class or higher honours, or an undergraduate degree with honours;
·5 points to an applicant who satisfies the Australian study requirement.
The applicant was awarded a ‘Master of Accounting by Central Queensland University, Melbourne campus, for a course he undertook from 5 March 2007 to 7 November 2008. This course of study did not result in the award of a doctorate and neither was it undertaken over 3 academic years.
However, the Tribunal is satisfied that this qualification meets the Australian study requirement in that the applicant completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses:
·that are ‘registered courses‘ (as defined in r.1.03): r.1.15F(1)(a);
·that were completed in a total of at least 16 calendar months: r.1.15F(1)(b);
·that were completed as a result of at least 2 academic years study: r.1.15F(1)(c);
·for which all instruction was conducted in English: r.1.15F(1)(d); and
·that the applicant undertook while in Australia as the holder of a visa authorising the applicant to study: r.1.15F(1)(e).
Therefore, the applicant is entitled to 5 points under this part.
Part 6B.7 – Occupation in Demand Qualifications
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.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6B.8 – Designated Language Qualifications
Points may be awarded under this section if the applicant is the holder of a qualification that is equivalent to a degree awarded by an Australian tertiary institution where the tuition was conducted in a designated language, or the applicant is accredited as a professional interpreter or level 3 translator in a designated language. Designated languages are specified by the Minister.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications
Points may be awarded under this part if the applicant meets the Australian study requirement, 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.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6B.10 – Partner Skill Qualifications
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 made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6B.11 – State or Territory Nomination Qualifications
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.
The applicant has applied for a subclass 885 visa and there is no evidence that he has been nominated by a State or Territory government agency for the purpose of the visa application, and that the nomination has been accepted. There is also no evidence that the applicant has applied for a Subclass 176, 475, 487 or 886 visa.
As the applicant has not applied for a Subclass 176, 475, 487 or 886 visa, the Tribunal finds that he is not entitled to any points under this part.
Part 6B.12 – Designated Area Sponsorship Qualifications
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.
As the applicant has applied for a subclass 885 visa and not a subclass 475 or 487 visa, the Tribunal finds he is not entitled to any points under this part.
Conclusion on points under Schedule 6B
Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6B is:
Occupational qualifications  60 points
Age qualifications  20 points
English language qualifications  15 points
Specific employment qualifications  0 points
Australian employment qualifications  0 points
Australian educational qualifications  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  100 points
At the time of the delegate’s assessment the pool mark was 120 points and the pass mark was 120 points. The applicant has, therefore, not achieved the qualifying score to pass the points test under Schedule 6B.
Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?
The Tribunal finds that the applicant would be entitled to the same allocation of 100 points having regard to the Regulations in force at the time of this assessment and the pool and pass mark remains the same. Therefore, he has not achieved the qualifying score applying the law in force at the time of the Tribunal’s assessment.
Therefore, the Tribunal must proceed to consider the application under the points test in Schedule 6C.
Schedule 6C Points Assessment
Part 6C.1 – Age Qualifications
Based on the evidence at paragraph 15, the Tribunal finds that the applicant was aged not less than 33 and under 40 at the time of application.
Accordingly, the Tribunal finds that the applicant is entitled to 25 points under this part.
Part 6C.2 – English Language Qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency.
For visa applications made on or after 1 July 2011 but before 1 July 2012, r.1.15EA provides that if a person applies for a General Skilled Migration visa, the person has superior English if he or she satisfies the Minister that:
·the person undertook a language test, specified in an instrument in writing; and
·the test was conducted in the 2 years immediately before the day on which the application was made; and
·the person achieved a score specified in the instrument.
For visa applications made on or after 1 July 2011 but before 1 July 2012, r.1.15D provides that if a person applies for a General Skilled Migration visa, the person has proficient English if he or she satisfies the Minister that:
·the person undertook a language test, specified in a written instrument; and
·the test was conducted in the 2 years immediately before the day on which the application was made; and
·the person achieved a score specified in the instrument.
The relevant instrument (IMMI 15/005) specifies for r.1.15EA (ie. superior English) either an IELTS test with a score of at least 8.0 in each of the 4 test components of speaking, reading, writing and listening or a score of at least ‘A’ in each of the four test components of an OET.
IMMI 15/005 specifies for r.1.15D (ie. proficient English) either an IELTS test with a score of at least 7.0 in each of the 4 test components of speaking, reading, writing and listening or a score of at least ‘B’ in each of the four test components of an OET.
Based on the evidence at paragraph 27, the Tribunal finds that the applicant does not have either ‘superior English’ or ‘proficient English’ as defined.
Accordingly, the applicant is not entitled to any points under this part.
Part 6C.3 – Overseas Employment Experience Qualifications
Points are available under this Part if the applicant was employed outside Australia in his nominated skilled occupation, or in a closely related skilled occupation, for a period totalling at least 36 months (or 60 months or 96 months) in the 10 years immediately before the lodgement of the application.
Although the applicant made no claims against this paragraph in the visa application, at his hearing he claimed he met this requirement because he used to work in Sri Lanka. The applicant handed up a Personal particulars for character assessment (Form 80), which claimed that from January 2004 to September 2005 he was employed as an Accounts and Marketing Administrator for Mighty Vision Computer Systems, whilst from September 2005 to December 2006, he was employed as an Assistant District Officer for the United Nations Food & Agriculture Organisation.

The Tribunal noted that the applicant had not provided any written evidence of this work experience, notwithstanding that he had been invited to do so by the delegate. The Tribunal also noted that, at face value, neither of these occupations appeared to be the applicant’s nominated skilled occupation of Accountant (General) (ANZSCO 211111) or a closely related skilled occupation.
The applicant responded that he did not have any evidence of this employment. He stated that Sri Lankan positions are different as someone has to do everything. For example, in relation to the Assistant District Officer position, he looked after the finance side of things at the district level although it wasn’t full accounting work.
Based on the evidence before it, the Tribunal is not satisfied that the applicant was employed outside Australia in his nominated skilled occupation, or a closely related skilled occupation, for at least at least 36 months in the 10 years immediately before he applied for his visa.
Therefore, the applicant is not entitled to any points under this part.
Part 6C.4 – Australian Employment Experience Qualifications
Points are awarded under this part if the applicant has been employed in Australia in his nominated skilled occupation, or a closely related skilled occupation, for at least 12 months (or 36, 60 or 96 months) in the 10 years immediately before he applied for the visa.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6C.5 – Aggregating points for Employment Experience Qualifications under Parts 6C.3 and 6C.4:
This part provides that if an applicant is awarded points in respect of his overseas employment experience or his Australian employment experience, the combined points awarded cannot exceed 20 points.
Given the Tribunal’s findings in relation to these matters, the applicant is not entitled to any points under this part.
Part 6C.6 – Australian Professional Year Qualifications:
Points are awarded under this part if an applicant has completed a professional year in Australia in their nominated occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the lodgement of the visa application.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6C.7 – Educational Qualification
Points under this part are awarded in respect of an applicant’s academic qualifications, whether completed in or outside Australia, with a doctorate level qualification being eligible for the maximum 20 points
The delegate found that the applicant was entitled to 15 points in respect of his Bachelor of Commerce degree from the University of Sri Jayewardenepura in Sri Lanka, being a bachelor degree awarded by another educational institution that the Minister is satisfied is of a recognised standard.
At his hearing, the applicant indicated that he agreed with this assessment.
The Tribunal concurs and finds that the applicant is entitled to 15 points under this part.
Part 6C.8 – Australian Study Qualifications
Points may be allocated under this part for each degree, diploma and trade qualification that has been awarded to the applicant by an Australian educational institution, and used by him to meet the Australian study requirement, and is closely related to his nominated skilled occupation.
The delegate found that the applicant was entitled to the maximum 5 points in respect of his ‘Master of Accounting’ from the Central Queensland University, Melbourne campus, which was used to meet the Australian study requirement,
The Tribunal concurs and finds that the applicant is entitled to 5 points under this part.
Part 6C.9 – Credentialled Community Language Qualifications
Points may be allocated under this part where an applicant holds a qualification in a particular language awarded or accredited by a body specified by the Minister in an instrument in writing for this item, and at a standard for the language specified in that instrument.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6C.10 – Study in regional Australia or a low-population growth metropolitan area qualifications
Points may be awarded under this part if the applicant meets the Australian study requirement, 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.
The applicant made no claims against this paragraph in the visa application and confirmed this at the hearing.
Consequently, and on the evidence before it, the Tribunal finds that the applicant does not meet this requirement and he is entitled to no points under this part.
Part 6C.11 – Partner Skill Qualifications
Five points may be allocated under where the applicant’s partner meets all of the requirements of this part.
As the applicant does not have a partner, he is entitled to no points under this part.
Part 6C.12 – State or Territory Nomination Qualifications
As the applicant has applied for a subclass 885 visa, and there is no evidence that he applied for a subclass 176 (Skilled – Sponsored) or a subclass 886 (Skilled – Sponsored) visa, or that he has been nominated by a State or Territory government agency for the purposes of the visa application, the Tribunal finds that he is not entitled to the 5 points available under this part.
Part 6C.13 – Designated Area Sponsorship Qualifications
The Tribunal finds that the applicant has not applied for a subclass 475 or 487 visa. As a result, he is not entitled to the 10 points available under this part.
Conclusion on points under Schedule 6C:
The Tribunal finds that the number of points to be awarded to the applicant under Schedule 6C, based on an assessment against the legislation in effect at the time of primary assessment, are as follows:
Age qualifications  25 points
English language qualifications  0 points
Overseas employment experience qualifications                    0 points
Australian employment experience qualifications                    0 points
Aggregating points for employment experience
qualifications under Parts 6C.3 and 6C.4  0 points
Australian professional year qualifications   0 points
Educational qualifications  15 points
Australian study qualifications     5 points
Credentialled community 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  45 points
At the time of primary assessment the pass mark was 65 points and the pool mark was 65 points. The applicant has, therefore, not achieved the qualifying score to pass the points test under Schedule 6C.
Does the applicant achieve the qualifying score applying the Regulations and pass mark in force at time of Tribunal’s assessment?
The Tribunal finds that the applicant would be entitled to the same allocation of 45 points having regard to the Regulations in force at the time of this assessment and the pool and pass mark remains the same. Therefore, he has not achieved the qualifying score applying the law in force at the time of the Tribunal’s assessment.
Conclusions
For the above reasons, the Tribunal finds that the applicant is entitled to a total of 100 points under the points test in Schedule 6B as in force at the time of the delegate’s assessment and also at the time of this decision. At each of those points in time the pass mark was 120 points. Accordingly the applicant has failed to achieve the qualifying score required to pass the points test.
For the above reasons, the Tribunal finds that the applicant is entitled to a total of 45 points under the points test in Schedule 6C as in force at the time of the delegate’s assessment and also at the time of this decision. At each of those points in time the pass mark was 65 points. Accordingly the applicant has failed to achieve the qualifying score required to pass the points test.
Therefore the applicant does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Di Hubble
Member

[2016] AATA 3040

13 January 2016

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