1516505 (Migration) - [2016] AATA 3420

1516505 (Migration) [2016] AATA 3420 (9 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jordan Dino Fernandez
CASE NUMBER:  1516505
DIBP REFERENCE(S):  BCC2015/3414240
MEMBER:Glen Cranwell
DATE:9 March 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 09 March 2016 at 11:43am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 1 December 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who submitted an expression of interest and received an invitation to apply for the visa.
The applicant was invited to apply for the visa on 9 October 2015 and applied for the visa on 19 November 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.
The applicant appeared before the Tribunal on 9 March 2016 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’.
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).
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 -…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 1516505 (Migration) [2016] AATA 3420
Case: [2016] AATA 3420
Decision Date: 9 March 2016

CaseChat Overview and Summary

The applicant, a Software Engineer, appealed a decision by the Department of Home Affairs to deny their application for a Skilled Independent (Permanent) visa. The dispute centred on whether the applicant satisfied the points test criterion required to be granted the visa. The case was heard by the Migration Review Tribunal. The Tribunal had to determine if the applicant met the points test criterion for the visa, which requires that the applicant’s score, when assessed in relation to the visa, is not less than the score stated in the invitation to apply for the visa and is not less than the ‘qualifying score’. The applicant argued that they should be granted the visa, but the Tribunal found that the applicant’s score was less than the qualifying score.

The Tribunal considered the applicant’s age, English language proficiency, and overseas employment experience to determine their points under the points test. The applicant was entitled to 30 points for their age, but they did not qualify for points under the English language qualifications or overseas employment experience qualifications. Therefore, the applicant was entitled to a maximum of 55 points under the points test, which was less than the qualifying score. The Tribunal concluded that the decision not to grant the applicant a Skilled Independent (Permanent) visa should be affirmed.

The Tribunal found that the applicant did not satisfy the points test criterion for the visa, and therefore the decision under review should be affirmed. The Tribunal affirmed the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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’. 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). 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 Software Engineer.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 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. Based on the applicant’s date of birth of 9 August 1990, at the time of invitation the applicant was aged 25. Therefore, the applicant is entitled to 30 points under this part.Part 6D.2 – English language qualifications 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 29 August 2015 with the following results: 6.5 in Listening; 6.5 in Reading; 6.5 in Writing; 6.5 in Speaking. As the applicant has not achieved scores of least 7 in each of the four test components, he has not achieved “proficient English” or “superior English”. Therefore, the applicant is entitled to no points under this part.Part 6D.3 – Overseas employment experience qualifications 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.

Decision

Reasons for decision

For the above reasons, the applicant is entitled to a maximum of 55 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.DECISION The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.Glen CranwellMember

Ratio Decidendi

Legal Principle Established

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