1506435 (Migration)

[2015] AATA 3788

1506435 (Migration) [2015] AATA 3788 (30 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Benjamin Kerloon Woo
Mrs Jihan Shahbanou Kartamuhari-Woo
Master Ari Wenkai Woo

CASE NUMBER:  1506435

DIBP REFERENCE(S):  BCC2015/149222

MEMBER:Di Hubble

DATE:30 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 30 November 2015 at 10:41am

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 24 April 2015 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) 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 28 November 2014 and applied for the visa on 14 January 2015. 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.

3. The applicants sought review of the delegate’s decision on 11 May 2015.  A copy of the delegate’s decision accompanied the review application. 

4. The applicants appeared before the Tribunal on 20 November 2015 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue before the Tribunal 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’.

6. 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).

7. 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 this instance, the applicant nominated the occupation of Computer Network and Systems 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

8. 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.

9. At the time of invitation the applicant was aged not less than 33 years and under 40 years. Therefore, he is entitled to 25 points under this part.

   Part 6D.2 – English language qualifications

10. 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.

11. For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, he had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D). 

12. The current instrument (IMMI 15/005) specifies the following language tests and test scores for applications lodged on or after 1 January 2015:

    …For paragraph 1.15EA(a), the following language tests:

    i. an International English Language Test System (IELTS) test; or
    ii. an Occupational English Test (OET); or
    iii. a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or
    iv. a Pearson Test of English Academic (PTE Academic); or
    v. a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    …For paragraph 1.15EA(c), the following test scores:

    i. an IELTS test score of at least 8 in each of the four test components of listening, reading, writing and speaking; or
    ii. an OET test score of at least A in each of the four test components of listening, reading, writing and speaking; or
    iii. a TOEFL iBT test score with at least the following scores in the four test components: 28 for listening, 29 for reading, 30 for writing and 26 for speaking; or
    iv. a PTE Academic test score of at least 79 in each of the four test components of listening, reading, writing and speaking; or
    v. a Cambridge English: Advanced (CAE) test score of at least 200 in each of the four test components of listening, reading, writing and speaking.

    …For paragraph 1.15D(a), the following language tests:

    i. an International English Language Test System (IELTS) test; or
    ii. an Occupational English Test (OET); or
    iii. a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or
    iv. a Pearson Test of English Academic (PTE Academic); or
    v. a Cambridge English: Advanced (CAE) test(also known as Certificate in Advanced English).

    …For paragraph 1.15D(c), the following test scores:

    i. an IELTS test score of at least 7 in each of the four test components of listening, reading, writing and speaking; or
    ii. an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or
    iii. a TOEFL iBT test score with at least the following scores in the four test components: 24 for listening, 24 for reading, 27 for writing and 23 for speaking; or
    iv. a PTE Academic test score of at least 65 in each of the four test components of listening, reading, writing and speaking; or
    v. a Cambridge English: Advanced (CAE) test score of at least 185 in each of the four test components of listening, reading, writing and speaking.

13. In his pre-hearing submission the applicant indicated he would like the opportunity to sit an IELTS test.  He said he had not already done so because he grew up and was educated in New Zealand and he had believed he did not need to prove his language skills.  However, the Tribunal declined to adjourn the review because, as was explained at the hearing, the applicant was required to demonstrate that he had superior English or proficient English at the time of invitation to apply for the visa and, therefore, any English language test he sat now could not meet this requirement.

14. Therefore, the applicant is entitled to no 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. Based on the applicant’s skills assessment and his overseas work references, the delegate found that at the time of invitation to apply for the visa the applicant had been employed outside Australia in his nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 60 months in the 10 years immediately before that time and he was entitled to 10 points.

17. In his pre-hearing submission, the applicant contested this, claiming that he had worked a total of 97 months in the 10 years immediately before that time.  However, at the hearing the Tribunal suggested that this could not be correct because the relevant 10 year period commenced on 28 November 2004 and the applicant ceased work as an ICT Systems Engineer in New Zealand in November 2010, prior to relocating to Australia in March 2011.  The applicant conceded that this was correct.

18. The Tribunal concurs with the delegate’s assessment that at the time of invitation to apply for the visa the applicant had been employed outside Australia in his nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 60 months in the 10 years immediately before that time.

19. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

    Part 6D.4 – Australian employment qualifications

20. 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.

21. Based on the applicant’s skills assessment and his Australian work references, the delegate found that at the time of invitation to apply for the visa the applicant had been employed in his nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 36 months in the 10 years immediately before the date of the invitation to apply for the visa and he was entitled to 10 points. 

22. At his hearing the applicant agreed that this was correct and the Tribunal concurs. 

23. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this part.

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

24. 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.

25. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 20 points.  As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

26. 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.

27. The applicant is not claiming to have completed a ‘professional year’ in Australia in the 48 months immediately before the time of invitation to apply for the visa.

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

    Part 6D.7 – Educational qualifications

29. 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.

30. The applicant provided evidence that on 8 January 2014 his qualifications (a Diploma in Business Computing from Auckland University of Technology completed from February 1996 to November 1998, and a Microsoft Certified Systems Engineers recognition (November 2006) had been recognised by the relevant assessing authority, the Australian Computer Society, for the applicant’s nominated skilled occupation as being suitable for his nominated occupation.  The delegate found that he was, accordingly, entitled to 10 points.  At his hearing the applicant agreed that this was correct and the Tribunal concurs.

31. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.8 – Australian study qualifications

32. 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.

33. The applicant made no claims under this part and no points were awarded by the delegate.  As he did not claim and has provided no evidence of having met the Australian study requirement, the applicant is entitled to no points under this part.

    Part 6D.9 – Credentialled community language qualifications

34. 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.

35. The applicant does not claim to have credentialled community language qualifications and there is no evidence of an award or accreditation by the National Accreditation Authority for Translators and Interpreters (NAATI) as a paraprofessional interpreter or translator, being the specified body and specified standard for this purpose.

36. Therefore, the applicant is entitled to no points under this Part.

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

37. 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.

38. The applicant made no claims under this part and no points were awarded by the delegate.  As the applicant did not claim and has provided no evidence of having met the Australian study requirement, and that study was undertaken, and the applicant lived, in a specified area of Australia, he is entitled to no points under this part.

    Part 6D.11 – Partner Skill Qualifications

39. 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.

40. No claims were made for points under this part and no points were awarded by the delegate.  The Tribunal concurs and finds that the applicant is not entitled to any points under this part.

    Part 6D.12 – State or Territory nomination qualifications

41. 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 has not been invited to apply for such a visa and is, therefore, not entitled to any points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

42. 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 has not been invited to apply for such a visa and is, therefore, not entitled to any points under this part.

43. 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  10 points

    6D.4 - Australian employment experience  10 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  10 points

    6D.8 - Australian study  0 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  55 points

44. The applicant’s assessed score under the points system is, therefore, 55 points.

45. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. 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?

46. There have not been any relevant changes to the Regulations and the Tribunal finds that the points assessment remains the same at the time of this decision. The applicant has, therefore, not achieved the qualifying score to pass the points test at the time of the Tribunal’s assessment.

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

47. 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 60 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.

48. There is no evidence before the Tribunal that any of the secondary applicants meet the primary criteria for the grant of the visa and the applicant has not made any claims to that effect.

49. 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.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review must be affirmed in respect of all the applicants.

    DECISION

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

    Di Hubble
    Member