1506555 (Migration)

[2015] AATA 3772

1506555 (Migration) [2015] AATA 3772 (24 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dimitro Kirsh

CASE NUMBER:  1506555

DIBP REFERENCE(S):  BCC2015/823062

MEMBER:Mary Cameron

DATE:24 November 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2015 at 3:40pm

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 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 13 February 2015 and applied for the visa on 13 March 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 applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’.

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 15/092. In the present case, the applicant nominated the occupation of chiropractor.

   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 29. Therefore, the applicant is entitled to 30 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. The applicant explained to the Tribunal that he prepared his visa application by himself without seeking the services of a migration agent, and had not recognised the need to undertake a language test in the 3 year period immediately before the day on which he was invited to apply for the visa. This was because he is the holder of a Canadian passport which satisfies the requirement for competent English (r.1.15C) but does not establish any eligibility for points under Part 6D for superior English or proficient English.

12. The applicant provided the Tribunal with a copy of an International English Language Testing System (IELTS) Test Report Form indicating that he undertook an IELTS Test on 28 February 2015 and obtained test results of 7.5 for Listening; 8.5 for Reading; 8.5 for Writing; and 9.0 for Speaking with an overall band score of 8.5. These are results which, had the test been undertaken in the 3 year period before the date of the invitation to apply for the visa, would have demonstrated that the applicant had proficient English as defined.

13. However the applicant agreed that he did not undertake a language test in the 3 year period immediately before he was invited to apply for the visa on 13 February 2015.

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. The applicant told the Tribunal that he was not been employed in a skilled occupation outside Australia. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

17. 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.

18. The Tribunal discussed the applicant’s employment experience in Australia which included a period of work as a chiropractor commencing in December 2014, and the subsequent establishment of his own business.

19. The applicant told the Tribunal that he worked for a brief period of much less than 12 months in his skilled occupation in Australia, before the invitation to apply for the visa on 13 February 2015.

20. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

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

21. 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.

22. The applicant is not entitled to any points under Part 6D.3 or 6D.4. 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

23. 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.

24. The applicant agreed that he has not completed a professional year in Australia. Therefore, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

25. 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.

26. The applicant has been awarded a Master of Chiropractic with Distinction from RMIT University conferred on 17 December 2014. Therefore at the time of invitation to apply for the visa he had met the requirements for the award of at least a bachelor degree by an Australian educational institution: Part 6D.7.

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

    Part 6D.8 – Australian study qualifications

28. 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.

29. In the present case the applicant had, at the time of invitation, completed a degree: r.1.15F(2); r.2.26AC(6)). The delegate was satisfied that the applicant had 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 met the requirements of r.1.15F.

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

    Part 6D.9 – Credentialled community language qualifications

31. 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.

32. The applicant told the Tribunal that he has no qualification in a particular language for the purposes of Part 6D.9. 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

33. 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.

34. The applicant agreed that he has not studied or lived in a specified area of Australia for the purposes of Part 6D.10.

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

    Part 6D.11 – Partner Skill Qualifications

36. 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.

37. The applicant told the Tribunal that he does not have a spouse or de facto partner who is an applicant for the same visa subclass. Therefore, the applicant is entitled to no points under this part.

    Part 6D.12 – State or Territory nomination qualifications

38. 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 is therefore not entitled to any points under this part.

    Part 6D.13 – Designated area sponsorship qualifications

39. 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

40. 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  30 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   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

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

42. 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.

43. The Tribunal is satisfied that the pass mark remains the same at the time of decision as IMMI 12/07 remains in force. Accordingly the Tribunal finds that the applicant has therefore not achieved the qualifying score to pass the points test.

44. 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.

    DECISION

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

    Mary Cameron
    Member