1514243 (Migration)

[2016] AATA 4400

1514243 (Migration) [2016] AATA 4400 (20 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ramneek Sahni
Mrs Lovely Sahni
Master Vihaan Sahni

CASE NUMBER:  1514243

DIBP REFERENCE(S):  BCC2015/1867272

MEMBER:Alison Mercer

DATE:20 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a subclass 190 visa:

·cl.190.214 of Schedule 2 to the Regulations.

Statement made on 20 September 2016 at 5:06pm

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 1 October 2015 to refuse to grant the applicants Skilled - Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) 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 29 June 2015 and applied for the visa on the same date. The criteria for the grant of a subclass 190 visa are set out in Part 190 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.190.214.

3. The delegate found that the applicant did not meet the required score in the points test set out in Schedule 6D to the Regulations. The delegate noted that the required score specified in the invitation letter to the applicant was 65 but the delegate calculated that the applicant’s score was as follows:

   ·Age:  30 points

   ·English:  0 points

   ·Overseas employment experience:   0 points

   ·Australian employment experience:   0 points

   ·Aggregated employment experience: 0 points

   ·Australian Professional Year:            5 points

   ·Educational qualifications:                 15 points

   ·Australian study:  0 points

   ·Credentialled community language:   0 points

   ·Study in regional Australia or a low population growth metropolitan area:     0 points

   ·Partner skills:  0 points

   ·State/Territory nomination:                5 points

   ·Designated Area sponsorship:          0 points

   ·TOTAL:   55 points

4. In particular, the delegate was not satisfied that the applicant was entitled to any points for his Australia study, as the delegate did not accept that the applicant’s Master of IT degree from the University of Ballarat met the relevant requirements in r.1.15F to be allocated any points.  The delegate noted that the letter of completion provided by the applicant indicated that this course comprised 4 academic terms and that the applicant completed it between 16 July 2012 and 19 August 2013.  The delegate found that the course was therefore less than the 16 calendar months specified in r.1.15(1)(b) and less than 2 academic years as specified in r.1.15F(1)(c).

5. The delegate refused to grant visas to the second and third named applicants (the applicant’s wife and son) on the basis that they did not satisfy the secondary criteria to be members of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary criteria in their own right.

6. The Tribunal received a review application from the applicants on 21 October 2015.  It was accompanied by:

   ·a copy of the delegate’s decision;

   ·copies of emails sent by the applicant to the Department on 1 and 4 October 2015;

   ·Confirmations of Enrolment (CoEs) for him for Masters of Information Technology (IT) at the University of Ballarat (12 March 2012 to 12 September 2013) and for Master of IT at the same institution (9 July 2012 to 31 January 2014);

   ·graduation statement for the applicant from the University of Ballarat (undated) confirming that the applicant completed a Master of IT there, that this was a post-graduate degree consisting of 240 credit points and that the course is 2 years of full-time study;

   ·the applicant’s Master of IT degree issued on 10 December 2014 and his academic transcript;

   ·letter dated 7 March 2013 from Centre for University Partnerships at University of Ballarat advising the applicant that he had been granted 4 credit transfers for subjects previously undertaken in a University of Ballarat Master of IT Studies (incomplete);

   ·letter dated 1 October 2015 from the Assistant Campus Manager (Australian Technical & Management College, ATMC Geelong) in association with Federation University (previously the University of Ballarat), stating that the applicant was initially enrolled in a Master of IT Studies (MITS) at ATMC Geelong campus on 12 March 2012 and commenced that program, successfully completing the first semester (4 subjects).  On 9 July 2012, the applicant changed his program from MITS to Master of IT (MIT) at ATMC Geelong campus.  He then completed the remaining 3 semesters in this program and completed his MIT on 19 August 2013.  As per the University of Ballarat’s course guidelines at that time, 4 courses of the first semester of MITS and MIT were identical, so the applicant obtained 4 credit points for his MIT due to his MITS subjects, and this was reflected in his academic transcript issued on 17 November 2014.  As per the University of Ballarat’s course guidelines for the MIT, the applicant had fulfilled all the prerequisites and course requirements for the course which was registered on CRICOS as a 92 week course.  As per the University’s records, the applicant had completed the course in 17 months and 7 days at ATMC, which was a partner provider with the University of Ballarat (now Federation University);

   ·letter dated 18 November 2013 from the University of Ballarat certifying that the applicant was a full-time, full-fee paying international student there in the MIT and gained 4 credits from previous studies at the University of Ballarat MITS (incomplete) program.  His commencement date was 16 July 2012 and his completion date was 19 August 2013.  He studied in regional Geelong, Victoria and the language of instruction was English; and

   ·positive skills assessment issued to the applicant on 13 December 2013 from the Australian Computer Society for the occupation of Developer Programmer (261312).

7. In his emails, the applicant confirms his study history and argues that the course he completed was in fact a 92 week course, and it took him 17 months and 7 days. He further noted that although he had been granted a subclass 485 (Graduate Skilled) temporary visa on 12 November 2013, he was concerned to pursue the subclass 190 permanent residence visa, particularly as the duration and nature of his Australian study had been assessed as meeting the Australian study requirement for the purposes of his subclass 485 visa application.

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

9. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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’.

11. 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).

12. 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). The relevant instrument for this purpose is Legislative Instrument IMMI 15/091. In the present case, the applicant nominated the occupation of Developer Programmer, which is listed in IMMI 15/091.

    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

13. 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.

14. At the time of invitation the applicant was aged 32. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

15. 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 delegate awarded no points to the applicant on the basis that the applicant had not provided any evidence of his English proficiency at the time of the delegate’s decision. The Department’s file indicates that the applicant subsequently provided a PTE Academic Test Taker Score Report indicating that he obtained an overall score of 71 in a test he undertook on 12 October 2015 (with scores of 65 or more in all 4 test components). 

16. Although r.1.15D and the relevant written instrument specify that a score of at least 65 in all 4 components of a PTE Academic Test is equivalent to ‘proficient English’ (10 points), this test was undertaken after the applicant was invited to apply for the subclass 190 visa on 29 June 2015.  Accordingly, the Tribunal is unable to take it into account under this Part and find that the applicant is not entitled to any points under this Part.

    Part 6D.3 – Overseas employment experience qualifications

17. 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.

18. The delegate found that the applicant had not made any claims under this Part, and the applicant made no claims to the Tribunal regarding having employment outside Australia in his nominated occupation or a closely related one.

19. Therefore, The Tribunal finds that, subject to consideration of Part 6D.5, the applicant is not entitled to any points under this part.

    Part 6D.4 – Australian employment qualifications

20. 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.

21. As above, the delegate found that the applicant had not made any claims under this Part, and the applicant made no claims to the Tribunal regarding having employment in Australia in his nominated occupation or a closely related one.

22. Therefore, The Tribunal finds that, subject to consideration of Part 6D.5, the applicant is not entitled to any points under this part.

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

23. 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.

24. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 0 points. As this is not more than 20 points, the Tribunal finds that the applicant is not entitled to any points under this part.

    Part 6D.6 – Australian professional year qualifications

25. 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.

26. The delegate found that the applicant had provided evidence of having completed a professional year in Australia in his nominated occupation (or a closely related one) in the 48 months immediately before he was invited to apply for the visa and awarded him 5 points under this Part as a result.

27. The Tribunal concurs with the delegate’s awarding of points under this Part based on the material before it.

28. The Tribunal finds that the applicant is entitled to 5 points under this part.

    Part 6D.7 – Educational qualifications

29. 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.

30. The delegate found that the applicant had met the requirements for the award of at least a bachelor level qualification by a non-Australian educational institution that is of a recognised standard, which appears to be based on the fact that the relevant assessing authority, the Australian Computer Society (ACS) assessed the applicant as having a Bachelor of IT from Uttar Pradesh Technical University (completed November 2005) that the ACS recognised as equivalent to an AQF Bachelor degree with a major in computing.  Alternatively, based on his Australian Master of IT degree at the University of Ballarat, completed prior to him being invited to apply for the visa, the Tribunal finds that he is entitled to 15 points under this Part for having met the requirements for the award of at least an Australian Bachelor degree at the time of the invitation to apply for the visa.

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

    Part 6D.8 – Australian study qualifications

32. 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.

33. On the basis of the evidence before it, the Tribunal is satisfied that the applicant had completed a Master of IT degree (awarded by the University of Ballarat on 10 December 2014, after completing it on 19 August 2013) at the time he was invited to apply for the subclass 190 visa on 29 June 2015.

34. From the documentary evidence before it, principally the clarification letter issued on 1 October 2015 by the Australian Technical and Management College and Federation University (formerly the University of Ballarat), the Tribunal is satisfied that the Master of IT course completed by the applicant was:

    ·an ESOS and CRICOS-registered 92 week full-time course for the purposes of r.1.03;

    ·completed in a total of 17 months and 7 days (consisting of 1 semester of Master of IT Systems and 3 semesters of Master of IT, both undertaken at ATMC at its Geelong campus, a partner provider of the University of Ballarat, undertaken between 12 March 2012 and 19 August 2013);

    ·2 academic years in duration (noting the relevant written instrument for the purposes of the definition in r.1.03 applicable at the time of the delegate’s assessment, IMMI 09/040, states that 2 academic years is a total of at least 92 weeks, being the duration of the registered course);

    ·the instruction for which was conducted in English; and

    ·undertaken while the applicant held a visa authorising study (as per the Department’s movement records, the applicant held a subclass 573 (Higher Education Sector) student visa valid until 12 November 2013.  The Tribunal notes that the applicant did not arrive in Australia as the holder of this visa until 20 March 2012, so it appears that the commencement date for his MITS of 12 March 2012 referred to in the clarification letter of 1 October 2015 is incorrect – however, using 20 March 2012 as the commencement date and 19 August 2013 as the completion date still results in the applicant’s studies taking over 16 calendar months). There is no evidence before the Tribunal that the applicant did not comply with the conditions of his student visa during his period of study.

35. As the Tribunal is satisfied that the Australian study requirement had been met at the time of invitation, it finds that the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

36. 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.

37. There was no evidence before the delegate, and there is none before the Tribunal, that the applicant had a qualification in a particular language awarded or accredited by a specified body, and at a specified standard for the language.

38. Accordingly, the Tribunal finds that the applicant is not entitled to any points under this part.

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

39. 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.

40. The delegate awarded no points under this Part as she was not satisfied that the applicant met the Australian study requirement.  As set out above, the Tribunal has reached a different conclusion on this issue and has found that, at the time he was invited to apply for the visa, the applicant had in fact met the Australian study requirement.

41. Based on the information provided to the Department, including the various letters from his education provider and documentary evidence of bills sent to the applicant during the relevant period, the Tribunal is satisfied that the applicant and his spouse and child lived in Highton (postcode 3216) and Thomson (postcode 3219), which are suburbs of Geelong, during the period of the applicant’s studies.  The Tribunal is further satisfied from the various letters from his education provider that both his incomplete MITS and his MIT were not distance education courses and were undertaken under the auspices of the University of Ballarat, were undertaken at the Geelong campus of ATMC, an affiliate of the University of Ballarat (now Federation University), the postcode for which is 3220.  The Tribunal is satisfied that at the time of the delegate’s assessment, the relevant written instrument, IMMI 12/015, that the postcodes 3216, 3219 and 3220, are all specified as regional and low population growth metropolitan areas for the purposes of this Part.

1. Therefore, the Tribunal finds that the applicant is entitled to 5 points under this part.

   Part 6D.11 – Partner Skill Qualifications

2. 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.

3. It is not disputed that the applicant has a spouse who is also an applicant for the subclass 190 visa, is not an Australian citizen or permanent residence and who was, at the time of the invitation to apply for the visa, under 50 years of age.  However, there is no evidence before the Tribunal that the applicant’s spouse had nominated a specified skilled occupation, had been assessed as having specified skills and had competent English at the time of the invitation to apply for the visa.

4. Accordingly, the Tribunal finds that applicant not is entitled to any points under this part.

   Part 6D.12 – State or Territory nomination qualifications

5. Points are available under this Part for applicants who were invited to apply for a subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a subclass 190 visa and there is no evidence to suggest that the nominating state (Victoria) has withdrawn its nomination.

6. Accordingly, the Tribunal finds that the applicant is entitled to 5 points under this part.

   Part 6D.13 – Designated area sponsorship qualifications

7. 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

8. 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  30 points

   6D.2 - English language  0 points

   6D.3 - Overseas employment experience  0 points

   6D.4 - Australian employment experience  0 points

   6D.5 - Aggregated employment  0 points

   6D.6 - Australian professional year  5 points

   6D.7 - Educational  15 points

   6D.8 - Australian study  5 points

   6D.9 - Credentialled community language  0 points

   6D.10 - Study in regional / low-population area  5 points

   6D.11 - Partner skill  0 points

   6D.12 - State or Territory nomination  5 points

   6D.13 - Designated area sponsorship  0 points

   Total points  65 points

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

10. At the time of the delegate’s assessment, the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant 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?

11. 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 65 points. 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.

12. For the above reasons, the Tribunal is satisfied that 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.190.214, 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.

13. As the second and third named applicants applied on the basis of being members of the family unit of the applicant, their applications will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

14. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a subclass 190 visa:

    ·cl.190.214 of Schedule 2 to the Regulations.

    Alison Mercer
    Member