1507088 (Migration)

[2015] AATA 3838

1507088 (Migration) [2015] AATA 3838 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Phakaporn Pongprapass

CASE NUMBER:  1507088

DIBP REFERENCE(S):  BCC2011/57209

MEMBER:Lisa Lo Piccolo

DATE:10 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 10 December 2015 at 6:08pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 January 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).

3. The delegate refused to grant the visa on 5 May 2015 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because he did not have the qualifying score of 120 points. A copy of the department’s decision was provided to the Tribunal.

4. The applicant appeared before the Tribunal on 23 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Anne Stonier. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case 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).

2. 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 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).

3. Some elements of the points test relate to the skilled occupation that the applicant nominated in the visa application. An occupation is a ‘skilled occupation’ if: it is specified by the Minister in an instrument in writing 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 IMMI12/068. In the present case, the applicant nominated the occupation of Pastrycook (nec 351112).

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

1. 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.

2. A successful skills assessment for the occupation of ‘Software and Applications Programmer’ is folioed on the department file (at folio 18).  This assessment was issued by Australian Computer Society Inc (ACS) which is the assessing authority nominated in IMMI10/026.

3. Therefore, the applicant is entitled to 60 points under this part.

Part 6B.2 – Age Qualifications

1. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.  Information on the Department file records the applicant’s date of birth as 15 June 1981.  The applicant was therefore aged between 18 and 30 at the time of visa application.

2. Therefore, the applicant is entitled to 30 points under this part.

Part 6B.3 – English Language Qualifications

1. Points are available under this Part on the basis of the applicant’s level of English language proficiency.

2. The applicant provided evidence to the Department of an IELTS test conducted on 15 August 2015 in which she achieved scores of at least 6 in each component which meets the definition of competent English in r.1.15C. 

3. The Tribunal notes that the applicant has submitted 16 other IELTS test forms in support of her application in order to obtain proficient English.  The Tribunal notes that she has achieved scores of at least 7 in all of these tests in some components but has not been able to achieve 7 in each component in the same test. 

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

Part 6B.4 – Specific Employment Qualifications

1. 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.

2. The applicant did not make a claim for points under this Part.  There is no evidence before the Tribunal to establish that the applicant was employed in a skilled occupation or a closely related skilled occupation for at least 36 months in the 48 months immediately before the visa application was made.

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

Part 6B.5 – Australian Employment Qualifications

1. 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.

2. The applicant did not make a claim for points under this Part.  There is no evidence before the Tribunal to establish that the applicant has eligible Australian employment or has completed a Professional Year.

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

Part 6B.6 – Australian Educational Qualifications

1. An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia.

2. Item 6B.61 provides for 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.

3. Items 6B.62 and 6B.63 provide 15 points each 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 a masters degree or honours degree (6B62) or an undergraduate honours degree (6B63) for which he or she has achieved second class (division 1) or higher honours.

4. Finally, item 6B.64 provides 5 points to an applicant who satisfied the Australian study requirement.

5. On the evidence before it contained in the Department file and confirmed by the applicant at the hearing, the applicant completed a ‘Diploma of Hospitality at Academia International.  Based on the evidence before it the Tribunal is also satisfied that the Australian study requirement through completing one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of courses which are registered courses and were completed in a total of at least 16 calendar months and that were completed as a result of at least 2 academic years study and for which all instruction was conducted in English while the applicant was in Australia as the holder of a visa authorising the applicant to study.

6. Therefore, the applicant is entitled to 5 points under this part.

Part 6B.7 – Occupation in Demand Qualifications

1. 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. 

2. The applicant has nominated the occupation of Pastrycook.  The legislation instrument does not specify this occupation to be a migration occupation in demand.

3. The applicant did not make a claim for points under this Part.  There is no evidence before the Tribunal to establish that the applicant was employed or had an offer of full time employment in the 24 months before the application.

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

Part 6B.8 – Designated Language Qualifications

1. 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.   

2. The applicant gave evidence that he is not the holder of a qualification, and is not accredited as a professional interpreter or translator in a designated language by the National Accreditation Authority for Translators and Interpreters.

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

Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications

1. Points may be awarded under this part if the applicant meets the 2 year study requirement/ Australian study requirement (as applicable), 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. 

2. The applicant did not make a claim for points under this Part. There is no evidence before the Tribunal and the applicant does not contend that she has lived in a part of Australia, the postcode of which is specified by the Minister in an instrument and studied in one or more campuses specified by the Minister while meeting the 2 years study requirement and that none of the study undertaken constituted distance education.

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

Part 6B.10 – Partner Skill Qualifications

1. 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.

2. The applicant has made no claims against the Partner skill qualifications. 

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

Part 6B.11 – State or Territory Nomination Qualifications

1. 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. 

2. The applicant has not applied for a Subclass 176, 475, 487 or 886 visa and the related State/Territory nomination has not been accepted. 

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

Part 6B.12 – Designated Area Sponsorship Qualifications

1. 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. 

2. The applicant has not applied for a Subclass 475 or 487 visa.  Therefore, the applicant is entitled to points under this part.

Conclusion on points

1. 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  30 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  110 points

2. At the time of the delegate’s assessment the pass mark was 120 points: IMMI12/017. 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?

1. There has been no change to the Regulations or pass mark from the date of the delegate’s decision on 11 May 2015 until the time of this decision.

2. For the above reasons, the applicant is entitled to a maximum of 110 points under the points test.  At the relevant times the pass mark was 120 points.  Accordingly the applicant has failed to achieve the qualifying score required to pass the points test and therefore 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.

MINISTERIAL INTERVENTION

1. At the hearing, the applicant requested the Tribunal recommend to the Minister to exercise his discretion under s.351 of the Act on public interest grounds.  The applicant gave evidence that she has lived in Australia for 10 years and is integrated into the Australian way of life.  She said that she has always wanted to become a permanent resident of Australia and has worked very hard to try to improve her language skills and become proficient in English.  She told the Tribunal she has been a nanny for the entire time she has lived in Australia and she has developed close bonds with her families and children especially Anne Stonier and her children.

2. Ms Anne Stonier is an Australian citizen and she gave evidence that she first met the applicant 10 years ago when she started babysitting for her.  At that time she was studying full time and working as a nanny and doing babysitting part time.  She said that the applicant was focused on trying to meet the required results for her IELTS test and the applicant allowed her to come live with her some years ago.  She has spent the best part of 2 years focused on trying to improve her IELTS scores.  Ms Stonier said that she has watched her study and commit and despite having engaged a tutor who assists her on a regular basis, she has not been able to obtain scores of 7 in each of the four components.  Ms Stonier indicated her concern and frustration that the IELTS system was not transparent because the applicant was unable to access her earlier test results.  She said that she and her children have become actively engaged in the process and felt very disappointed that despite her absolute commitment to IELTS and putting her whole life in a holding pattern, her best efforts have not been rewarded by increased marks.  She also expressed her bemusement that this appears to be the only test in the world where one can study full time with the assistance of a tutor and not achieve improved results without rhyme nor reason.  In fact, she referenced her various IELTS tests which show that her grades can vary significantly from one test to another in one test obtaining 8.5 in one component and in the next text obtaining 5.5 in the same component.

3. She said that the applicant has become an integral member of their family unit and her and her children are very attached to her.  She was quite emotional in giving her evidence expressing her regret that such a committed and lovely girl would be prevented from making a life for herself in Australia because she could not achieve proficient English in her IELTS test. She referred to the financial cost and burden the applicant has faced having sat the test 17 times, as well as the costs of having various components of tests remarked at a further cost and engaging an IELTS tutor. 

4. The Tribunal notes that the evidence establishes that the applicant has been living and working with English speaking families for the past 10 years and on all accounts, her English has improved dramatically and is very good.  She gave evidence at the Tribunal without the assistance of an interpreter and presented as having little difficulty speaking and comprehending English.  At the end of the hearing, she read out a short letter she had written wherein she spoke of her love for Australia, her sadness that she had not been able to meet Australia’s high standards for the grant of residency and the cultural, educational and emotional learning she has obtained since living in Australia. 

5. However, these are not matters that the Tribunal can take into account in making a decision. As the applicants do not satisfy an essential criterion for the visa, the Tribunal has no choice but to affirm the decision under review.  Only the Minister has the discretion to intervene and take these circumstances into account.

6. The Tribunal considers that the circumstances of this case may raise the following matters:

   §strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident);

   §the length of time the person has been present in Australia (including time spent in detention) and their level of integration into the Australian community.

7. Having regard to the circumstances of the applicant as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 "Minister's guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J)", the Tribunal considers that this case should be referred to the Department to be brought to the Minister's attention. 

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Lisa Lo Piccolo
Member