1507320 (Migration)

[2016] AATA 3188

1507320 (Migration) [2016] AATA 3188 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sourabh Sharma

CASE NUMBER:  1507320

DIBP REFERENCE(S):  BCC2010/256096

MEMBER:Di Hubble

DATE OF DECISION:  8 February 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 08 February 2016 at 2:25pm

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 26 June 2010. 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 8 May 2015 on the basis that the applicant did not satisfy cl.885.221 of the Regulations.  This was because the applicant only had 110 points under the relevant points test in Schedule 6B to the Regulations, whereas he was required to have 120 points for this visa subclass.

4. The applicant sought review of the delegate’s decision on 28 May 2015.  A copy of the delegate’s decision accompanied the review application.

5. The applicant appeared before the Tribunal on 24 November 2015 to give evidence and present arguments.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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 IMMI 12/068.  In this instance, the applicant nominated the occupation of Cook.

   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

9. 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.

10. The Tribunal is satisfied that the occupation of Cook is specified in IMMI12/068 as a skilled occupation for which 60 points are available.  The Tribunal is also satisfied that the applicant has a suitable skills assessment for that occupation. 

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

    Part 6B.2 – Age Qualifications

12. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.

13. The applicant was born in June 1987 and was aged not less than 18 years and under 30 years at the time of application.

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

    Part 6B.3 – English Language Qualifications

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

16. The delegate found the applicant was entitled to 15 points under this part as he had competent English, having submitted several IELTS test results, as recorded in the delegate’s decision, which achieved scores of at least 6 for each of the 4 test components of speaking, reading, writing and listening.

17. In order to be entitled to 25 points under this part, the applicant must demonstrate he has proficient English, as defined in r.1.15D of the Regulations.  This requires that the person has achieved, in a test conducted not more than 2 years before the day on which the application is lodged, an IELTS test score of at least 7 for each of the 4 test components, or a specified score in a test specified by the Minister for these purposes.  The relevant instrument, IMMI 15/005 specifies, in addition to the IELTS test, an Occupational English Test (OET) in which an applicant obtained scores of at least B in all 4 components of the test.  However, there is no evidence or claim by the applicant that he has undertaken an OET.

18. At the hearing, the applicant handed up 6 additional IELTS test results that he had sat during the period 21 November 2013 to 22 November 2014 (Tribunal folios 24 to 29), none of which achieved proficient English.  The applicant claimed he sat additional IELTS tests in February 2015 and June 2015, which he did not bother submitting because in neither did he achieve proficient English.

19. The applicant also handed up documentation confirming that he sat another IELTS test on 21 November 2015.  The Tribunal granted the applicant an extension of time until 7 December 2015 to submit those results.

20. On 7 December 2015 the applicant submitted his IELTS test result from 21 November 2015, with scores of 8.0 for Listening; 8.0 for Reading; 5.5 for Writing and 7.5 for Speaking.  The applicant requested that the Tribunal grant a further extension of time until 22 January 2016 to enable him to sit another IELTS test on 9 January 2016.  He stated that if he did not achieve the required IELTS test score on that occasion, the Tribunal could proceed to make an unfavourable decision. 

21. On 14 December 2015 the Tribunal granted a further extension of time.  It was noted in the Tribunal’s correspondence that if the applicant did not provide evidence of the requisite English language proficiency by 22 January 2016, the Tribunal would proceed to make a decision on the available evidence. 

22. No further communications have been received from the applicant.

23. On the basis of the evidence before it, the Tribunal finds the applicant has achieved competent English, as defined in r.1.15C. 

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

    Part 6B.4 – Specific Employment Qualifications

25. 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.

26. The applicant has not claimed to have been employed in a skilled occupation for a period of at least 36 months in the 48 months immediately before the day on which the application was made. 

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

    Part 6B.5 – Australian Employment Qualifications

28. 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.

29. The applicant has not claimed to have been employed, or completed a professional year, 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, and there is no evidence of this before the Tribunal.

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

    Part 6B.6 – Australian Educational Qualifications

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

32. In his visa application, the applicant claimed 5 points for his Australian education qualification, namely an Advanced Diploma of Hospitality, a Diploma of Hospitality Management and a Certificate III in Hospitality, completed during the period 7 April 2008 to 11 June 2010.

33. The delegate found the applicant was entitled to 5 points under this part as he satisfied the Australian study requirement, as defined by r.1.15F.

34. The Tribunal concurs and finds that the applicant is entitled to 5 points under this part.

    Part 6B.7 – Occupation in Demand Qualifications

35. 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.

36. In his visa application, the applicant indicated he had not been employed in his nominated occupation or a closely related occupation for at least 12 of the 48 months immediately preceding the visa application date.

37. On the evidence, the Tribunal concurs.  Therefore, the applicant is entitled to no points under this part.

    Part 6B.8 – Designated Language Qualifications

38. 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.

39. The applicant did not claim to be 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 that he was accredited as a professional interpreter or level 3 translator in a designated language.  There is no evidence before the Tribunal of either of those things.

40. 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

41. 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.

42. The documentation before the Tribunal indicates, and the Tribunal is satisfied, that the applicant lived and studied in metropolitan Melbourne, which is not a specified area of Australia for these purposes.

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

    Part 6B.10 – Partner Skill Qualifications

44. 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.

45. The applicant, who listed his marital status in the visa application as “never married”, did not make any claims, and there is no evidence before the Tribunal, in relation to this Part.  Therefore, the Tribunal finds that the applicant is entitled to no points under this part.

    Part 6B.11 – State or Territory Nomination Qualifications

46. 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.

47. Based on his visa application, the Tribunal finds that the applicant made an application for a subclass 885 visa only.  Further, he has provided no evidence that he was nominated by a State or Territory government and the Minister has accepted the nomination. 

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

    Part 6B.12 – Designated Area Sponsorship Qualifications

49. 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.

50. As indicated above, the applicant made an application for a subclass 885 visa only, not a subclass 475 or 487 visa.  Therefore, the applicant is entitled to no points under this part.

    Conclusion on points

51. 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

52. At the time of the delegate’s assessment the pass 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.

    Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

53. The Tribunal finds that the applicant would be entitled to the same allocation of 110 points having regard to the Regulations in force at the time of this assessment and the pool and pass marks remain the same.  Therefore, he has not achieved the qualifying score applying the law in force at the time of the Tribunal’s assessment.

54. 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, he does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa.

55. As this is the only relevant subclass in this case, the decision under review must be affirmed.

    DECISION

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

    Di Hubble
    Member