1509907 (Migration)

[2016] AATA 3050

1509907 (Migration) [2016] AATA 3050 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr David Anthony Newman
Mrs Nicole Dorothy Newman
Mr Data-Reighn Crompton
Mr Sebastian Anthony Lubbe Newman
Ms Amelia Sienna Newman

CASE NUMBER:  1509907

DIBP REFERENCE(S):  BCC2015/984344

MEMBER:Glen Cranwell

DATE:11 January 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

·cl.189.214 of Schedule 2 to the Regulations.

Statement made on 11 January 2016 at 9:11am

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 21 July 2015 to refuse to grant the applicants Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visas under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The first named applicant (the applicant) was invited to apply for the visa on 27 March 2015 and applied for the visa on 30 March 2015. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The issue in the present case is whether the applicant 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

   ·is not less than the ‘qualifying score’.

5. 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). 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). 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 (ss.93 and 350 of the Act).

6. 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). In the present case, the applicant nominated the occupation of Analyst Programmer.

   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

7. 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.

8. Based on the applicant’s birth certificate and passport showing a date of birth of 1 October 1974, at the time of invitation the applicant was aged 40. Therefore, the applicant is entitled to 15 points under this part.

   Part 6D.2 – English language qualifications

9. 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. The applicant provided the results of an IELTS test conducted on 28 February 2015 with the following results: 8.0 in Listening; 8.5 in Reading; 8.5 in Writing; 9.0 in Speaking.  As the applicant has achieved at least 8 in each of the four test components, he has “superior English” at the time of invitation to apply for the visa.  Therefore, the applicant is entitled to 20 points under this part.

   Part 6D.3 – Overseas employment experience qualifications

10. 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.

11. The applicant provided the Tribunal with the following documents:

    ·Letter from Automattic (sic), confirming the applicant’s employment as a DevOps Engineer from May 2013 to October 2014;

    ·Statement from the applicant confirming that he operated Automaton from May 2012 to April 2014, in which time he took on software and hardware development projects;

    ·Letter from One Digital Medical, confirming the applicant’s employment as Technical Director and Chief Technical Officer from February 2007 to April 2012;

    ·Letter from Barrows, confirming the applicant’s employment as a Systems Analyst/Programmer from February 2003 to January 2007.

12. Based on the information before it, the Tribunal is satisfied that the applicant had at least 96 months of employment outside Australia in his nominated skilled occupation or a closely related occupation in the 10 years immediately before the invitation to apply for the visa.  Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 15 points under this part.

    Part 6D.4 – Australian employment qualifications

13. 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.

14. The Tribunal finds that the applicant is not entitled to points under this part.

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

15. 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.

16. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15 points. As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

17. 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 (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months.

18. The applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

19. 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’ (items 6D71(b), 6D72(b)), regard must be had to the matters set out in r.2.26AC(5) 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.

20. Based on the applicant’s Bachelor of Science degree from the University of South Africa, the applicant is entitled to 15 points under this part.

    Part 6D.8 – Australian study qualifications

21. 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.

22. As the Australian study requirement had not been met at the time of invitation, the applicant is entitled to no points under this part.

    Part 6D.9 – Credentialled community language qualifications

23. 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.

24. The Tribunal finds that the applicant is not entitled to points under this part.

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

25. 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), 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.

26. The Tribunal finds that the applicant is not entitled to points under this part.

    Part 6D.11 – Partner Skill Qualifications

27. 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.

28. The Tribunal finds that the applicant is not entitled to points under this part.

    Part 6D.12 – State or Territory nomination qualifications

29. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa. The applicant in this case 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

30. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this part.

    Conclusion on points

31. 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 6D is:

    6D.1 - Age  15 points

    6D.2 - English language  20 points

    6D.3 - Overseas employment experience  15 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  15 points

    6D.8 - Australian study  0 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional / low-population area  0 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  65 points

32. The applicant’s assessed score under the points system is therefore 65 points.

33. At the time of the delegate’s assessment the pass mark was 60 points. The applicant has therefore achieved the qualifying score to pass the points test.

34. It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 60. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

35. For the above reasons, the applicant is entitled to a maximum of 65 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl.189.214, 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

36. The Tribunal remits the applications for Skilled Independent (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 189 visa:

    ·cl.189.214 of Schedule 2 to the Regulations.

    Glen Cranwell
    Member