1605187 (Migration)

[2016] AATA 3949

1605187 (Migration) [2016] AATA 3949 (6 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vikash Chhetri
Ms Malati Gautam

CASE NUMBER:  1605187

DIBP REFERENCE(S):  BCC2015/3630773

MEMBER:Alan Duri

DATE:6 June 2016

PLACE OF DECISION:  Sydney

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 06 June 2016 at 4:54pm

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 23 March 2016 to refuse to grant Mr Chhetri and his family 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. Mr Chhetri was invited to apply for the visa on 23 November 2015 and applied for the visa on 2 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 Mr Chhetri did not satisfy the ‘points test’ criterion in cl.189.214.

3. The delegate found that Mr Chhetri had a total of 50 points.  In particular the delegate assigned nil points for English language on the basis of the results of an IELTS test dated 28 February 2015 submitted with the application.  According to this test Mr Chhetri achieved the following results:

   Listening         8.5
   Reading          8.5
   Writing            6.5
   Speaking        7.5

4. However Mr Chhetri had also undertaken an IELTS test on 26 May 2015, which shows the following results:

   Listening         8.0
   Reading          8.0
   Writing            7.5
   Speaking        7.0      

5. Mr Chhteri’s migration agent, due the error or ineptitude, supplied the 28 February 2015 results to the department (as opposed to the higher 26 May 2015 results). 

6. In reaching its decision the tribunal did not consider a hearing to be necessary, as it was able to find in favour of Mr Chhetri on the basis of the material before it, under s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The question is whether Mr Chhetri 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’.

   Does the applicant have the qualifying score applying the law in force at the time of the delegate’s assessment?

8. The tribunal has reviewed the available material and agrees with the findings of the delegate that Mr Chhetri is entitled to 50 points for age, education and Australian study.

9. As noted above Mr Chhetri was awarded no points for English language on the basis of an IELTS test dated 28 February 2015.

   Part 6D.2 – English language qualifications

10. 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.

11. According to r.1.5D D

    A person has proficient English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (aa)  the person is an applicant for a visa; and

    (b)  the test was conducted in the 3 years immediately before the day on which the Minister invited the person under these Regulations, in writing, to apply for the visa; and

    (c)  the person achieved a score specified in the instrument.

12. IMMI 15/005 effectively provides that a person has proficient English if they have an IELTS test score of at least 7 in each of the four test components of listening, reading, writing and speaking.

13. As noted above According to the 26 May 2015 IELTS results Mr Chhetri achieved the following results:

    Listening         8.0
    Reading          8.0
    Writing            7.5

    Speaking        7.0

14. On the basis of the 26 May 2015 IELTS tets Mr Chhetri has procient English.

15. Therefore, Mr Chhetri is entitled to 10 points under this part.

    Conclusion on points

16. 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  10 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  0 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  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  60 points

17. Mr Chhetri’s assessed score under the points system is therefore 60 points.

18. At the time of the delegate’s assessment the pass mark was 60 points.   Mr Chhetri has therefore achieved the qualifying score to pass the points test.

19. 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 points. On the basis of the points assessment above, the tribunal finds that Mr Chhetri has achieved the score stated in the invitation to apply for the visa.

20. For the above reasons, Mr Chhetri 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

21. 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.

    Alan Duri
    Member