1507266 (Migration)

[2016] AATA 4666

1507266 (Migration) [2016] AATA 4666 (23 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Prabeg Shrestha
Mrs Alina Shrestha

CASE NUMBER:  1507266

DIBP REFERENCE(S):  BCC 2012/803507 BCC 2015/1574995

MEMBER:Jennifer Ciantar

DATE:23 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 487 (Skilled - Regional Sponsored) visa:

·cl.487.222 of Schedule 2 to the Regulations

Statement made on 23 November 2016 at 9:27am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 July 2012. The relevant subclass in this case is Subclass 487 (Skilled - Regional Sponsored). The criteria to be met for the grant of a Subclass 487 visa are set out in Part 487 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The Department’s records indicate that the first named applicant (the applicant) was granted a Subclass 485 visa on 7 June 2012 in effect until 7 December 2013, a Bridging visa A on 23 April 2013 and 6 December 2013, and a Subclass 572 visa on 8 December 2014 in effect until 26 March 2016.

4. The delegate refused to grant the visas on 20 May 2015 on the basis that the applicant did not satisfy cl.487.222 of Schedule 2 to the Regulations because the delegate was not satisfied the applicant achieved the qualifying score in either of the points tests prescribed under Schedule 6C.

5. On 9 November 2016 the applicant provided the Tribunal with the following documents:

   ·a letter dated 9 July 2015 from Rajan Adhikari & Associates, Chartered Accountants, which states that according to the records of Auto Goods located at Mahendra Bus. Park Narayangarh, Chitwan, the applicant was employed as an auto mechanic from 7 August 2003 to 13 September 2008.

   ·The registration details and Certificate of Auto Goods;

   ·a Certificate from the Department of Commerce, Commerce Office, Birjunj regarding the registration details of Auto Goods;

   ·a letter dated 8 July 2015 from Mr Pushpa Lal Shrestha, managing director/owner of Auto Goods which states that the applicant was employed as a full time auto mechanic in the business from 7 August 2003 to 13 September 2008.

   ·A reference from Dal Bahadur Tamang;

   ·A Diploma of Hospitality issued by International College of Advanced Education on 20 February 2016 and statement of attainment. 

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant satisfies cl.487.222 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).

8. 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).

9. The applicant was assessed by the delegate against Schedule 6C.  However, the Tribunal is satisfied that the applicant is entitled to be assessed against Schedule 6B because he is in a class of persons to whom r.2.26AA(2)(a) and 2.26AB(2)(a) applies.  In the present case, the visa application was made in the period 1 July 2011 to 31 December 2012.  The applicant is in the class of persons specified in the written instrument because he held a Subclass 573 visa on 8 February 2010 (in effect 9 September 2008 to 22 July 2011) and he applied for a Subclass 485 (Skilled Graduate) visa on or after 1 July 2010 but before 1 July 2012 (the Subclass 485 visa was granted on 7 June 2012). The Tribunal also finds that the nominated skilled occupation of motor mechanic (general) is specified in the relevant instrument. (See IMMI 12/068, paragraph 1(e)).

10. 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 100 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 (IMMI12/017).

    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

11. 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.

12. In the present case, the applicant nominated the occupation of Motor Mechanic (General) (ANZSCO Code 321211).  The relevant instrument in writing, IMMI 12/068, specifies that 60 points are available for this occupation. The applicant has also provided evidence of a skills assessment dated 4 July 2011 from TRA which states that the applicant has been successful in his application for the occupation of Motor Mechanic (General).

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

    Part 6B.2 – Age Qualifications

14. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application. The applicant’s date of birth is 23 August 1979. The Tribunal is satisfied that at the time of application, 19 July 2012, the applicant was aged 32.

15. As the applicant was aged not less than 30 years and under 35 he is eligible for 25 points under this part.

    Part 6B.3 – English Language Qualifications

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

17. The relevant legislative instrument, 15/005 specifies that a person has competent English for the purposes of r.1.15C(a)(iii) if they have achieved the score of at least 6 for each of the 4 test components of speaking, reading, writing and listening, in a test conducted in the 3 years immediately before the day on which visa application was made. The visa application was made on 19 July 2012 and the applicant provided IELTS test results dated 5 March 2011 which give scores of 7.0, 6.0, 6.0 and 6.0 for each of the 4 test components. The Tribunal finds that the applicant has competent English.

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

    Part 6B.4 – Specific Employment Qualifications

19. 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 Tribunal has found that the nominated skilled occupation of Motor Mechanic is one for which 60 points are available.

20. The visa application was made on 19 July 2012. The 4 years immediately preceding this date is the period 19 July 2008 to 18 July 2012. The applicant has not made any claims to have been employed in a skilled occupation in Australia or overseas other than the nominated occupation, and there is no evidence to suggest otherwise.

21. The visa application indicates that the applicant has resided in Australia since at least October 2008 and has been employed in Australia since November 2008. The applicant has provided evidence that in Australia he was employed in the nominated skilled occupation at Shandil Motor Care from 20 September 2010 to 31 March 2011, a period of a little more than 6 months. In regard to the applicant’s employment prior to coming to Australia, the visa application also indicates that the applicant ceased work in Nepal in September 2008 and he commenced work in Australia in November 2008 and there is no evidence he was employed between September and November 2008. The applicant claims he was an assistant mechanic in Nepal from August 2003 to September 2008 which includes the period 19 July 2008 to September 2008. The Tribunal is not persuaded that this employment was in the nominated skilled occupation or a skilled occupation, as the applicant had no qualifications as a mechanic prior to coming to Australia and has provided inconsistent evidence in that he claims to have been employed full-time as an assistant mechanic at the same time he was employed as a finance officer and a regional finance officer.  However, in any case, as the claimed employment as an assistant mechanic is a period of less than 1 year (in the relevant period), even when combined with the applicant’s employment at Shandil Motor Care, the Tribunal finds that the applicant was not employed in the nominated skilled occupation in Australia for at least 36 months in the 48 months immediately before he applied for the visa. The Tribunal has considered the available information regarding the applicant’s other employment in the period 19 July 2008 to 18 July 2012 but the Tribunal is not satisfied that the applicant was employed in a skilled occupation in Australia for at least 36 months in the 48 months immediately before he applied for the visa.

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

    Part 6B.5 – Australian Employment Qualifications

23. 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.

24. As noted, the applicant has provided evidence that in Australia he was employed in the nominated skilled occupation or a closely related skilled occupation at Shandil Motor Care from 20 September 2010 to 31 March 2011. As this is a period of less than 12 months, the Tribunal finds that the applicant was not employed in a skilled occupation in Australia for a total of 12 months in the 48 months immediately before he applied for the visa.

25. There is no evidence or claim that the applicant completed a professional year in Australia in his nominated skilled occupation or a closely related skilled occupation for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made.

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

    Part 6B.6 – Australian Educational Qualifications

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

28. The applicant has provided evidence that he was awarded a Diploma of Hospitality on 2 February 2016 from the International College of Advanced Education. Prisms records indicate that the applicant completed a Certificate IV in Hospitality between 27 January 2014 and 26 January 2015, and a Diploma of Hospitality from 26 January 2015 to 26 January 2016. Prisms records also indicate that previously the applicant completed a Diploma of Automotive Technology on 30 April 2011, following a Certificate III in Automotive Mechanical Technology commenced on 11 May 2009 and a Certificate IV in Auto Technology commenced on 14 November 2010.

29. The Tribunal therefore finds that the applicant undertook and completed a Diploma in Automotive Technology which commenced on 11 May 2009 and finished on 30 April 2011. The Tribunal also finds that the applicant also undertook and completed a Diploma of Hospitality from 27 January 2014 to 26 January 2016. The Tribunal is satisfied that the applicant has completed a Diploma for award by an Australian educational institution, as a result of completing at least 16 calendar months and at least 2 academic years study in a registered course where all instruction was in English. The Tribunal has checked the Department’s records and is satisfied that while studying, the applicant held a visa that authorised him to study.  The Tribunal finds that the applicant satisfies the Australian study requirement as defined in r.1.15F.

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

    Part 6B.7 – Occupation in Demand Qualifications

31. 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.

32. The applicant has not claimed to have been employed in the nominated occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date.

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

    Part 6B.8 – Designated Language Qualifications

34. 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 a level 3 translator in a designated language.  Designated languages are specified by the Minister. 

35. The applicant has made no claims under this part and there is no evidence that he is the holder of a relevant qualification or that he an accredited professional interpreter.   

36. 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

37. 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.

38. The Tribunal has found that the applicant satisfies the Australian study requirement as defined in r. 1.15F on the basis of the Diploma of Hospitality he has been awarded. The applicant has provided evidence to the Tribunal that he was awarded a Diploma of Hospitality on 2 February 2016 from the International College of Advanced Education. As noted, Prisms records indicate that the applicant completed a Certificate IV in Hospitality between 27 January 2014 and 26 January 2015, and a Diploma of Hospitality from 26 January 2015 to 26 January 2016. The Tribunal notes that this study was undertaken after the applicant lodged the visa application but is of the view that as the study was completed prior to the time of the Tribunal’s decision, it can be taken into account.

39. The Tribunal has checked the website of the International College of Advanced Education and is satisfied that the College is based in Darwin and that the Certificate IV and Diploma courses are offered on a face to face basis and not by distance education. The records held by the Tribunal and the Department indicate that the applicant lives in Darwin and has done so since the time of application. The Tribunal finds that Darwin is an area listed in the relevant instrument: IMMI 12/015.

40. Therefore, the Tribunal finds that the applicant meets the Australian study requirements on the basis of the Diploma of Hospitality undertaken at the International College of Advanced Education, and the location of the campus is specified in the relevant instrument. The Tribunal further finds that the applicant undertook the course of study while living in a part of Australia, the postcode of which is specified by the Minister in the relevant instrument, and that none of the study undertaken constituted distance education. Thus the applicant is entitled to 5 points under this part.

    Part 6B.10 – Partner Skill Qualifications

41. 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.

42. The applicant’s partner has specified the nominated occupation of Aged care/residential care officer ANZSCO 4117-15 on the visa application. However, the application form indicates that she had not obtained a skills assessment and there is no evidence that her skills have been assessed as suitable by a relevant assessing authority.  

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

    Part 6B.11 – State or Territory Nomination Qualifications

44. 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.

45. There is no evidence that the applicant has been nominated by a State or Territory government and the Minister has accepted the nomination. On the visa application form the applicant has responded with “No” in response to the question which asks if he is nominated by a State or Territory government or Regional Certifying Body.

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

    Part 6B.12 – Designated Area Sponsorship Qualifications

47. 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.

48. A sponsorship application Form 1227 has been lodged by Anil Maskey who states that he is the cousin of the applicant and that he lives in Alice Springs. The Tribunal is satisfied that Alice Springs is a designated area: IMMI 12/021. The Tribunal has taken into account that although it was in respect of Part 6C.13, the delegate was satisfied that the applicant had provided evidence in respect of designated area sponsorship qualifications and the delegate awarded points. The Tribunal takes the delegate’s finding to be evidence that the Minister has accepted the sponsorship.

49. Therefore, the applicant is entitled to 25 points under this part.

    Conclusion on points

50. 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  25 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                   5 points

    Partner skill qualifications  0 points

    State or Territory nomination qualifications              0 points

    Designated area sponsorship qualifications            25 points

    Total points  135 points

1. At the time of the delegate’s assessment the pass mark was 100 points: Legislative Instrument IMMI 12/017. The applicant has therefore achieved the qualifying score to pass the points test.

2. For the above reasons, the applicant is entitled to a maximum of 135 points under the points test. At the relevant point in time, the pass mark was 100 points. Accordingly the applicant achieved the qualifying score required to pass the points test and therefore meets cl.487.222 which is a prescribed criterion for the grant of a Subclass 487 visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

   DECISION

3. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 487 (Skilled - Regional Sponsored) visa:

   ·cl.487.222 of Schedule 2 to the Regulations

   Jennifer Ciantar
   Member