1508337 (Migration)

[2016] AATA 4508

1508337 (Migration) [2016] AATA 4508 (10 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Shah Ziaul Alam

CASE NUMBER:  1508337

DIBP REFERENCE(S):  BCC2015/504879

MEMBER:Katie Malyon

DATE:10 October 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 visa:

·cl.489.224 of Schedule 2 to the Regulations; and,

·cl.489.225(3)(a)-(d) of Schedule 2 to the Regulations.

Statement made on 10 October 2016 at 2:23 pm
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 9 June 2015 to refuse to grant the applicant, Mr Ahmed Alam, a Skilled - Regional Sponsored (Provisional) (Class SP) Subclass 489 (Skilled - Regional (Provisional) visa under s.65 of the Migration Act 1958 (the Act).  This is a points based visa with two streams of which the ‘First Provisional Visa stream’ is available to skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.

2. Mr Alam was invited to apply for the visa on 19 December 2014 and applied for the visa on 15 February 2015. The criteria for the grant of a Subclass 489 visa are set out in Part 489 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants who were invited to apply must satisfy the criteria for the ‘First Provisional Visa stream’. The delegate refused to grant the visa because Mr Alam did not satisfy the ‘points test’ criterion in cl.489.224 of Schedule 2 of the Regulations because his score was assessed as 50 points only.

3. Mr Alam appeared before the Tribunal on 10 October 2016 to give evidence and present arguments.  The Tribunal also received oral evidence from a cousin based in Sydney, Md Rifatul Islam.

4. With the benefit of documentation not provided to the Department, for the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether Mr Alam 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,

   ·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 of the Regulations. 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) of the Act. 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: s.93 and s.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 of the Regulations. The relevant instrument for this purpose is Legislative Instrument IMMI 15/091. In the present case, Mr Alam nominated the occupation of External Auditor ANZSCO 221213.

   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 on 19 December 2014 Mr Alam was aged 32.  Therefore, as he 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. An applicant who has superior English as defined in r.1.15EA of the Regulations is awarded 20 points and an applicant who has proficient English as defined in r.1.15D of the Regulations is awarded 10 points.

11. Mr Alam provided an IELTS test result dated 23 February 2013 confirming he has competent English only.  Therefore, he is entitled to no points under this Part.

    Part 6D.3 – Overseas employment experience qualifications

12. 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.

13. Mr Alam has made no claims in relation to his employment in his nominated skilled occupation for at least 36 months in the 10 years immediately before the invitation to apply for a Subclass 489 visa.  Furthermore, he has provided no evidence in support of this claim.  Therefore, subject to consideration of Part 6D.5, he is entitled to no points under this Part.

    Part 6D.4 – Australian employment qualifications

14. 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. 

15. Mr Alam has provided no evidence that he has been employed in his nominated skilled occupation in Australia for a least 12 months in the 10 years immediately before the time of invitation for the visa.  Accordingly, subject to consideration of Part 6D.5, he is entitled to no points under this Part.

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

16. 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.

17. The combined number of points that would be awarded to Mr Alam under Parts 6D.3 and 6D.4 is 0 points.  As this is not more than 20 points, he is entitled to no points under this Part.

    Part 6D.6 – Australian professional year qualifications

18. 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’ in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months. The term ‘professional year is defined in r.26AC(6) of the Regulations as a course specified in an instrument. The relevant instrument is IMMI 12/029 which requires, in relation to accounting graduates, completion of a professional year program provided by the Institute of Chartered Accountants in Australia, the Certified Practising Accountants Australia or the Institute of Public Accounting. The Institute of Chartered Accountants of Australia has, since publication of IMMI 12/029, formally changed its name to Chartered Accountants Australia and New Zealand (Chartered Accountants). 

19. Mr Alam provided the Department with a favourable skills assessment in his nominated occupation of External Auditor ANZSCO 221213 issued by Chartered Accountants on 16 October 2014.  The skills assessment makes reference to his attendance at a Skilled Migration Intern Program – Accounting (SMIPA) completed 23 April 2014.  Mr Alam has provided the Tribunal with evidence his completion of the SMIPA professional year with Navitas Professional dated 23 April 2014.  The Tribunal has satisfied itself by reference to Chartered Accountants’ website that Chartered Accountants does not directly offer professional year programs but, rather, together with the other 2 professional accounting bodies referred to in the IMMI 12/029 it has approved 15 registered education providers including Navitas Development to deliver the professional year program.[1] 

    [1] >

    Based on evidence provided the Tribunal accepts that Mr Alam completed a professional year in Australia in the closely related occupation of Accountant.  The Tribunal accordingly finds that he is eligible for 5 points under this Part.

    Part 6D.7 – Educational qualifications

20. 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’ (as required by item 6D71(b) and item 6D72(b) of Schedule 6 of the Regulations) regard must be had to the matters set out in r.2.26AC(5) of the Regulations 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.

21. Essentially, applicants who had been awarded a Doctorate are awarded 20 points, an applicant who has met the requirements for the award of at least a Bachelor degree is awarded 15 points and applicants who have met requirements for the award of a Diploma, trade qualification or other qualification recognised by the relevant assessing authority are awarded 10 points. 

22. Mr Alam provided the Department with a Statement of Academic Completion by the University of Ballarat.  At the hearing, he provided the Tribunal with his original Testamur and Academic Transcript confirming he completed all academic requirements for a Master of Commerce (Professional Accounting) on 20 December 2012.  Therefore, he is entitled to 15 points under this Part.

    Part 6D.8 – Australian study qualifications

23. 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.

24. As noted above, Mr Alam provided evidence the Department of his completion of a Master of Commerce (Professional Accounting) at the University of Ballarat on 20 December 2012 after more than 2 years study there.  He provided the Tribunal at the hearing with his Testamur and Academic Transcript confirming he completed all academic requirements for his Master of Commerce (Professional Accounting) on 20 December 2012.  As the Australian study requirement had been met at the time of invitation, Mr Alam is entitled to 5 points under this Part.

    Part 6D.9 – Credentialled community language qualifications

25. 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.

26. Mr Alam made no claim to having a qualification in a community language.  Therefore, he is entitled to no points under this Part.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

27. 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), 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.

28. Although Mr Alam completed his Master of Commerce degree at the University of Ballarat he did so at the university’s Sydney CBD campus.  Therefore, he is entitled to no points under this Part.

    Part 6D.11 – Partner skill qualifications

29. 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.

30. Mr Alam made no claim to having a spouse or de facto partner at the time of application.  Therefore, he is entitled to no points under this Part.

    Part 6D.12 – State or Territory nomination qualifications

31. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa.  Mr Alam 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

32. Points are available under this Part for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa, where the relevant agency has not withdrawn the nomination or, if the applicant was sponsored by a family member, the Minister has accepted the sponsorship.  

33. In this case, Mr Alam was invited to apply for a Subclass 489 visa on the basis of being sponsored by a family member, his first cousin Mr Abu Muhammad Ismail. To establish whether points should be awarded pursuant to Part 6D.13 of Schedule 6, the Tribunal is required to determine whether Mr Alam meets cl.489.225(3) of Schedule 2 of Regulations in having his cousin’s sponsorship accepted by the Minister. As Mr Alam did not provide the Department with evidence of his sponsor’s location the delegate was unable to assess if points should be awarded under this Part.

34. Relevantly, cl.489.225(3) of Schedule 2 of the Regulations provides that the Minister has accepted the sponsorship of the applicant by a person in the following circumstances:

    (a)the person has turned 18; and

    (b)the person is an Australian citizen, Australian permanent resident or eligible New Zealand citizen;

    (c)the person is usually resident in a designated area of Australia;

    (d)the person is related to the applicant, or the applicant’s spouse or de facto partner (if the applicant’s spouse or de facto partner is an applicant for a Subclass 489 visa), as:

    …

    (vii)   a first cousin.

35. The Court in Hafza v Director-General of Social Security (1985) 60 ALR 674 found that whether a person ‘usually resides’ in Australia is a question of fact and depends on the person's continued connection to Australia. Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’: Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249.

36. ‘Designated area’ is defined in r.1.03 of the Regulations to mean an area specified as a designated area by the Minister in an instrument in writing for this definition. The relevant instrument for ‘designated area’ is IMMI 16/044. The entire State of Victoria is specified to be a designated area.

37. A Skilled-Regional (Class SP) Subclass 489 (Provisional) visa sponsor declaration made 17 January 2015 was submitted to the Department.  In that declaration, the sponsor Abu Muhammad Ismail states that he:  has turned 18 years: is an Australian citizen: is usually resident in Hoppers Crossing in Victoria: and, the visa applicant Mr Alam is his first cousin.  The sponsor also makes a number of declarations accepting financial responsibility and support for Mr Alam.

38. Certified copies of the sponsor’s Australian Citizenship certificate issued 17 December 2009, the sponsor’s Birth Certificate, Mr Alam’s Birth Certificate as well as the Marriage Certificate for the sponsor’s parents and the Marriage Certificate of Mr Alam’s parents were provided to the Tribunal.  The Marriage Certificates for the sponsor’s father and Mr Alam’s mother confirm for the Tribunal that the sponsor’s father and Mr Alam’s mother are siblings and their father was Torab Ali: that is, Torab Ali is the grandfather of each of Mr Alam and his sponsor.  A family tree explaining the relationship between Mr Alam and the sponsor was also submitted.  On the basis of evidence provided, the Tribunal is satisfied that Mr Alam and his sponsor are first cousins.

39. As evidence of Mr Alam’s sponsor’s usual residence in Hopper’s Crossing, Victoria the Tribunal was provided the following certified copy documentation in respect of the property at the same address in Hopper’s Crossing noted in his sponsor’s Statutory Declaration sworn 17 January 2015 referred to above:  a Schedule extracted from a Lease Agreement dated 21 July 2014 signed by the lessor’s agent, the sponsor and the sponsor’s wife; a Bond Receipt issued by the Victorian Residential Tenancies Bond Authority dated 25 August 2014 issued in the name of the sponsor and his wife; a copy AGL Gas Account for the period 2 July 2016 to 29 August 2016 addressed to Mr Alam’s sponsor; and, a statement from the Commonwealth Bank dated 29 August 2016 addressed to Mr Alam’s sponsor. 

40. Based on the evidence provided, the Tribunal finds that the sponsor:

    (a)

    has turned 18 years. Mr Alam therefore meets cl.489.225(3)(a) of Schedule 2

    
    

    of the Regulations;

    (b)is an Australian citizen and Mr Alam therefore meets cl.489.225(3)(b) of Schedule 2 of the Regulations;

    (c)resides in Hoppers Crossing in the State of Victoria.  The Tribunal is satisfied that Hoppers Crossing is in the State of Victoria and that this is the sponsor’s usual place of residence.  Since the Minister has declared the entire state of Victoria to be a designated area, the Tribunal finds that the sponsor is usually resident in a designated area of Australia. Accordingly, Mr Alam meets cl.488.225(3)(c) of Schedule 2 of the Regulations; and,

    (d)is related to Mr Alam as his first cousin. Mr Alam therefore meets cl.489.225(3)(d) of Schedule 2 of the Regulations.

41. The Tribunal is therefore satisfied that Mr Alam meets cl.489.225(3)(a)-(d) of Schedule 2 of the Regulations and, as the sponsorship has been accepted, he is entitled to 10 points under this Part.

    Conclusion on points

    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 Mr Alam under Schedule 6D of the Regulations is:

    
    
    

Item	Qualification	Points
6D.1	Age	30
6D.2	English language	0
6D.3	Overseas employment experience	0
6D.4	Australian employment experience	0
6D.5	Aggregated employment	0
6D.6	Australian professional year	5
6D.7	Educational	15
6D.8	Australian study	5
6D.9	Credentialed community language	0
6D.10	Study in regional / low-population area	0
6D.11	Partner skill	0
6D.12	State or Territory nomination	0
6D.13	Designated area sponsorship	10
Total points	65

1. Mr Alam’s assessed score under the points system is therefore 65 points.

2. At the time of the delegate’s assessment on 9 June 2015 the pass mark was 60 points: Legislative Instrument IMMI 12/017.  Mr Alam has therefore achieved the qualifying score to pass the points test.

   Has the applicant achieved the score stated in the invitation to apply for the visa?

3. It is also a requirement that an applicant’s score is not less than the score stated in the invitation to apply for the visa.  The written invitation given to Mr Alam in his invitation letter of 19 December 2014 stated a score of 65 points.  On the basis of the points assessment above, the Tribunal finds that he has achieved the score stated in the invitation to apply for the visa.

4. For the above reasons, Mr Alam is entitled to a maximum of 65 points under the points test. As his score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, Mr Alam satisfies cl.489.224 of Schedule 2 of the Regulations, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

   DECISION

5. The Tribunal remits the application for a Skilled Regional Sponsored (Provisional) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 489 visa:

   ·cl.489.224 of Schedule 2 to the Regulations; and,

   ·cl.489.225(3)(a)-(d) of Schedule 2 to the Regulations.

6. The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.

   Katie Malyon

   
   Member