1507378 (Migration)

[2016] AATA 3622

1507378 (Migration) [2016] AATA 3622 (6 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mohamed Kaleel Lareef
Ms Fathima Shabra Lareef
Mr Looth Lareef

CASE NUMBER:  1507378

DIBP REFERENCE(S):  BCC2012/367352

MEMBER:Mary Cameron

DATE:6 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 06 April 2016 at 5:49pm

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 (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 April 2012. 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 visas on 11 May 2015 on the basis ton the basis that the primary visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because he did not meet the required pass mark in the points test set out in Schedule 6B of the Regulations. The delegate found that the applicant was entitled to 110 points under this test but the pass mark was 120 points.

4. The delegate found that the applicant was not entitled to a Subclass 885 visa as he did not meet cl.885.221, and further found that he did not meet the legislative requirements for the other visa subclasses within Class VB, being the subclass 886 and subclass 887 visas.

5. The Tribunal received an application for review from the applicant on 29 May 2015.

6. The applicants appeared before the Tribunal on 26 November 2015 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The relevant points test for the Subclass 885 visa depends on the date of the visa application and whether the applicant is a person or in a class of persons specified by the Minister for r.2.26AA(2)(a). IMMI 12/068 specifies applicants who had applied for a Subclass 485 visa on or before 8 February 2010 to be such a class of persons for r.2.26AA(2)(a).

10. The issue in the present case is whether the primary applicant (hereafter ‘the applicant’) satisfies 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).

    Does the applicant have the qualifying score applying the law in force at the time of the delegate's decision?

    Schedule 6B Points Assessment

    Part 6B.1 – Occupational Qualifications

11. The Tribunal is satisfied that the applicant nominated a skilled occupation at the time of application, namely, that of Welfare Worker (ANZSCO Code 272613). To be entitled to the points available under item 6B11 of Schedule 6B the applicant must have a suitable skills assessment from the relevant assessing authority. In this case the applicant has nominated ‘Welfare Worker’ as his skilled occupation and the skills assessment must be from the Australian Institute of Welfare and Community Workers (AIWCW). The delegate was satisfied that the applicant had provided the required skills assessment for his nominated skilled occupation.

12. As a result, the Tribunal finds that the applicant is entitled to 60 points for Part 6B.1 in accordance with item 6B11 of Schedule 6B

    Part 6B.2 – Age Qualifications

13. According to his visa application and his passport the applicant was born in 1982 and was aged between 18 and 30 years at the time of application. Accordingly, the Tribunal finds that the applicant is entitled to 30 points for Part 6B.2 in accordance with item 6B21 of Schedule 6B.

    Part 6B.3 – English Language Qualifications

14. Regulation 1.15D relevantly provides that a person has 'proficient English' if they achieve a score of at least 7.0 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of or a score of at least 'B' in each of the four test components of an OET, conducted in the 2 years immediately before the day on which the application was lodged.

15. Similarly, regulation 1.15C relevantly provides that a person has 'competent English' if they achieve a score of at least 6.0 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test, or a score of or a score of at least 'B' in each of the four test components of an OET, conducted in the 2 years immediately before the day on which the application was lodged.

16. According to the primary decision record the applicant undertook an IELTS test on 8 October 2011 in which he scored 7.0 for listening, 6.5 for reading, 6.0 for writing and 7.5 for speaking with an overall band score of 7.0.

17. At the Tribunal hearing the applicant handed up the results of an IELTS test undertaken on 22 November 2014 in which he scored 7.0 for listening, 8.0 for reading, 6.5 for writing and 7.0 for speaking, with an overall band score of 7.0. The Tribunal explained that the English language score, for the purposes of this part, must be assessed on an English language test conducted in the 2 years immediately before the visa application was lodged, and therefore the test results dating from 22 November 2014 cannot be considered for the purposes of this part. In any event those results provide that the applicant has achieved competent English, which was also the result of the IELTS test he provided in October 2011.

18. At the Tribunal hearing the applicant told the Tribunal that he has a workplace accident that caused him to take time off work and he has provided medical evidence (two doctors letters dated November 2015) that he has reported suffering from stress at home, and he has two young children and is unable to concentrate for his exams. However these are not matters the Tribunal can take into consideration in assessing the applicant’s English language qualifications for the purposes of Schedule 6B.

19. Accordingly, the Tribunal finds that the applicant is entitled to 15 points for competent English pursuant to item 6B32 of Schedule 6B.

    Part 6B.4 – Specific Employment Qualifications

20. Item 6B41 in Part 4 of Schedule 6B provides for 10 points to be awarded where an applicant has nominated a skilled occupation for which 60 points are available, and where the applicant has been employed in that skilled occupation for a period totalling 36 months in the 48 months immediately before the lodgement of the application. Employment in any other skilled occupation will attract 5 points (Item 6B42).

21. The applicant made no claims against this paragraph in the visa application, and at the Tribunal hearing he agreed that had no claim to any points under this part.

22. Accordingly, based on the evidence before it, the Tribunal finds that the applicant was not employed in a skilled occupation for at least at least 36 months in the 48 months immediately before he applied for his visa, as required by either item 6B41 or 6B42. Therefore, the Tribunal finds that he is not entitled to any points under Part 6B.4.

    Part 6B.5 – Australian Employment Qualifications

23. Item 6B51 provides for 10 points to be awarded where an applicant has been employed in Australia in the applicant's nominated skilled occupation for a period totalling at least 12 months in the 48 months immediately before the lodgement of the application.

24. Item 6B52 also provides 10 points for an applicant who has completed a professional year in Australia in their nominated occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the lodgement of the application.

25. The applicant made no claims against this paragraph in the visa application and on the available evidence, the Tribunal finds that the applicant does meet the requirements of item 6B51 or 6B52 of Schedule 6B the Regulations and is not entitled to any points under this item.

    Part 6B.6 – Australian Educational Qualification

26. Item 6B61 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.

27. Items 6B62 and 6B63 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 either a masters degree, or an honours degree for which they achieved second class or higher honours, or an undergraduate degree with honours.

28. Finally, item 6B64 provides 5 points to an applicant who satisfied the Australian study requirement.

29. The applicant was awarded a Diploma of Community Welfare for a course he completed between July 2007 and November 2009 at Layas Institute of Melbourne. The evidence before the Tribunal is that this course CRICOS registered and delivered in the English language medium of instruction on a full time basis.

30. The applicant has completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a results of registered courses completed in a total of at least 16 calendar months, and that were completed as a result of at least 2 academic years of study for which all instruction was completed in English while the applicant was in Australia as the holder of a visa authorising the applicant to study.

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

    Part 6B.7 – Occupation in Demand Qualifications

32. Item 6B71 provides that 20 points may be awarded where an applicant has nominated a migration occupation in demand in their application, has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the visa application was made, and has an offer of full-time employment in that occupation in an organisation that had at least 10 full-time employees at all times in the 24 months immediately before the day on which the application was made.

33. Similarly, item 6B72 provides 15 points may be awarded where an applicant has nominated a migration occupation in demand in their application and has been employed in that skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the visa application was made.

34. There is no claim made in this regard and the Tribunal finds that the applicant's nominated occupation was not a MODL occupation on the relevant instruments.

35. The Tribunal accordingly finds that he is not entitled to any points under item 6B71 or 6B72 of Schedule 6B of the Regulations.

    Part 6B.8 – Designated Language Qualifications

36. Item 6B81 provides that 5 points may be awarded where an applicant holds a qualification equivalent to an Australian bachelor degree and where tuition was conducted in a designated language, or is accredited as a professional interpreter/translator in a designated language.

37. The applicant did not claim any points against Item 6B81 in his visa application. At the Tribunal hearing he agreed that he does not hold a qualification set out in this part nor is he accredited as an interpreter or translator.

38. The Tribunal accordingly finds that he is not entitled to any points under item 6B.8 of Schedule 6B of the Regulations.

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

39. Item 6B91 provides that 5 points may be awarded where an applicant meets the 'Australian study requirement' and the location of the campus(es) at which that study was undertaken, whilst the applicant lived in an Australian postcode that have been specified by the Minister in the relevant instrument for item 6A1001 of Schedule 6A, and none of the study undertaken constituted distance education.

40. In his visa application the applicant has made no claims under this part and at the Tribunal hearing he agreed that he has not lived or studied in is a specified postcode.

41. Accordingly, the Tribunal finds that the applicant is not entitled to any points under Item 6B91 and therefore no points can be awarded for Part 6B.

    Part 6B.10 – Partner Skill Qualifications

42. The applicant has made no claims in respect of this part and at the Tribunal hearing he agreed that his spouse does not meet the requirements for the award of any points under this part.

43. Accordingly, based on the evidence before it, the Tribunal find that the applicant is not entitled to any points for Part 6B.10 of Schedule 6B.

    Part 6B.11 – State or Territory Nomination Qualifications

44. The applicant has applied for a Subclass 885 visa and there is no evidence that he has been nominated by a State or Territory government agency for the purpose of the visa application, and that the nomination has been accepted. There is also no evidence that the applicant has applied for a Subclass 176, 475, 487 or 886 visa.

45. As a result, as the applicant has not applied for a Subclass 176, 475, 487 or 886 visa, the Tribunal finds that he is not entitled to any points under item 6B111 for Part 6B.11 of Schedule 6B.

    Part 6B.12 – Designated Area Sponsorship Qualifications

46. Correspondingly, as the applicant has applied for a Subclass 885 visa and not a subclass 475 or 487 visa, the Tribunal finds that she is not entitled to any points under item 6B121 for Part 6B.12 of Schedule 6B.

    Conclusion on points

47. 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

48. At the time of the delegate's assessment the pass mark was 120 points: Legislative Instrument IMMI 11/027. 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?

49. The current instrument, IMMI 12/017, retains the pass mark of 120 points.

50. The applicant has therefore not achieved the qualifying score to pass the points test.

51. The delegate also refused visas to the secondary applicants, the partner and child of the visa applicant and who are included in his application.

52. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 885.321, the secondary applicants must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 885 visa. As the applicant does not satisfy the primary criteria for a Subclass 885 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 885.321 and, therefore, the criteria for a Subclass 885 visa.

    DECISION

53. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Mary Cameron
    Member