1600949 (Migration) - [2016] AATA 4077

1600949 (Migration) [2016] AATA 4077 (1 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Marie Catherine Holgate
CASE NUMBER:  1600949
DIBP REFERENCE(S):  BCC2015/3936616 EGOACVG08E
MEMBER:Glen Cranwell
DATE:1 July 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 01 July 2016 at 1:13pm
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 12 January 2016 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 18 December 2015 and applied for the visa on 18 December 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 29 June 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: 1600949 (Migration) [2016] AATA 4077
Case: [2016] AATA 4077
Decision Date: 1 July 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute concerning an applicant's eligibility for a Skilled Independent (Permanent) visa. The core of the disagreement revolved around whether the applicant met the points test criterion, which requires their assessed score to be not less than the score stated in their invitation to apply and not less than the "qualifying score." The applicant had nominated the occupation of Registered Nurse (Mental Health).

The Tribunal was tasked with determining if the applicant possessed the qualifying score under the relevant provisions of the Act and Regulations, specifically Schedule 6D, as in force at the time of the delegate's assessment and at the time of the Tribunal's assessment, applying whichever was more favourable to the applicant. This involved assessing points for age and English language proficiency, as well as considering overseas employment experience in the nominated skilled occupation.

The Tribunal found that the applicant, aged 26 at the time of invitation, was entitled to 30 points for age. Furthermore, based on their IELTS test results, which demonstrated scores of at least 7 in each of the four components, the applicant achieved "proficient English" and was awarded 10 points. However, the Tribunal concluded that the applicant was entitled to a maximum of 55 points under the points test. As this score was less than the qualifying score, the applicant did not satisfy the criterion. Consequently, the Tribunal affirmed the decision not to grant the 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 Registered Nurse (Mental Health).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 19 April 1989, at the time of invitation the applicant was aged 26. 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 10 October 2015 with the following results: 7.5 in Listening; 7.0 in Reading; 7.5 in Writing; 9.0 in Speaking. As the applicant has achieved scores of least 7 in each of the four test components, she has achieved “proficient English”. Therefore, the applicant is entitled to 10 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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