1515797 (Migration)

[2016] AATA 3425

1515797 (Migration) [2016] AATA 3425 (4 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yong Kain Ng

CASE NUMBER:  1515797

DIBP REFERENCE(S):  BCC2011/245331

MEMBER:Glen Cranwell

DATE:4 March 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 (Skilled - Sponsored) visa:

·cl.886.221 of Schedule 2 to the Regulations

Statement made on 04 March 2016 at 9:25am

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 3 June 2011. The relevant subclass in this case is Subclass 886 (Skilled - Sponsored). The criteria to be met for the grant of a Subclass 886 visa are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on 6 November 2015 on the basis that the visa applicant did not satisfy cl.886.221 of Schedule 2 to the Regulations.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies cl.886.221 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).

7. In addition, persons who apply for a points tested General Skilled Migration visa on or after 1 July 2011 but before 1 January 2013 who are in a specified class of persons and whose assessed score under Schedule 6B is less than the applicable pass mark at the time of assessment, may also be assessed against the prescribed qualifications in Schedule 6C to the Regulations: r. 2.26AB(2).

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). In the present case, 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 Department’s file includes a copy of a positive skills assessment by TRA dated 5 January 2010 for the nominated occupation of Cook. 

11. On the basis of that evidence, 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. Based on the applicant’s date of birth of 11 June 1966, at the time of application the applicant was 44.  Therefore, the applicant is entitled to 15 points under this part.

    Part 6B.3 – English Language Qualifications

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

15. The applicant submits that he has proficient English as defined in r.1.15C, entitling him to 15 points.  As in force at the time of the visa application r.1.15C defined proficient English in ways including that a person would have competent English if they satisfy the Minister that they achieved a score of at least 7 for each of the 4 test components in an IELTS test conducted not more than two years before the day on which the application was lodged. 

16. On the basis of the IELTS test report form dated 24 October 2015, which shows that the applicants had scores of 8.0 for listening, 7.5 for reading, 7.5 for writing, and 8.5 for speaking, the Tribunal finds that the applicant has proficient English. 

17. Therefore, the applicant is entitled to 25 points under this part:

    Part 6B.4 – Specific Employment Qualifications

18. 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.

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

    Part 6B.5 – Australian Employment Qualifications

20. 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.

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

    Part 6B.6 – Australian Educational Qualifications

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

23. The delegate was satisfied that the applicant was entitled to 5 points under this part.

    Part 6B.7 – Occupation in Demand Qualifications

24. 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. 

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

    Part 6B.8 – Designated Language Qualifications

26. 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.   

27. 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

28. 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. 

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

    Part 6B.10 – Partner Skill Qualifications

30. 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.

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

    Part 6B.11 – State or Territory Nomination Qualifications

32. 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. 

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

    Part 6B.12 – Designated Area Sponsorship Qualifications

34. 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. 

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

    Conclusion on points

36. 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  15 points

    English language qualifications  25 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  105 points

37. At the time of the delegate’s assessment the pass mark was 100 points.  The applicant has therefore achieved the qualifying score to pass the points test.

38. For the above reasons, the applicant is entitled to a maximum of 105 points under the points test. At the relevant point in time, the pass mark was 100 points. Accordingly the applicant achieved the qualifying score required to pass the points test and therefore meets cl.886.221 which is a prescribed criterion for the grant of a Subclass 886 visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

39. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 (Skilled - Sponsored) visa:

    ·cl.886.221 of Schedule 2 to the Regulations

    Glen Cranwell
    Member