2132279 (Migration)

[2023] AATA 3758

2132279 (Migration) [2023] AATA 3758 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Raheel Umer (MARN: 1679332)

CASE NUMBER:  2312279

MEMBER:Peter Katsambanis

DATE:15 September 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 491 visa:

·cl 491.216 of Schedule 2 to the Regulations.

Statement made on 15 September 2023 at 1:34pm

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – points test – Australian employment in breach of condition of student visa – more than 40 hours per fortnight – limit removed during COVID pandemic – compliant employment counted for points test – ongoing employment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 350
Migration Regulations 1994 (Cth), rr 1.15I, 2.26AC, Schedule 6D, Part 6D.4, Schedule 8, condition 8105

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 28 July 2023 to refuse to grant the applicant a visa under s 65 of the Migration Act 1958 (Cth) (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 applicant was invited to apply for the visa on 21 February 2023 and applied for the visa on 29 March 2023. The criteria for the grant of a Subclass 491 - Skilled Work Regional (Provisional) visa are set out in Part 491 - Skilled Work Regional (Provisional) of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 491.216.

3. The applicant was represented in relation to the review by a registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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’.

6. 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 (reg 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).

7. 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 (reg 1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 19/051. In the present case, the applicant nominated the occupation of ICT Security Specialist.

   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

8. 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.

9. At the time of invitation, the applicant (who was born on [Date]) was [Date] years of age. Therefore, the applicant is entitled to 30 points under this part.

   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. The applicant provided the Department with a copy of his results in the Pearson Test of English Academic (PTE Academic) undertaken on 18 November 2020 in [Suburb], Australia. The applicant’s test results were as follows:

    Listening – 73

    Reading – 68

    Speaking – 84

    Writing – 66

12. As the applicant has a Pearson Test of English Academic (PTE Academic) score of at least 65 in each of the four test components of speaking, reading, writing and listening (as required by the applicable instrument), the Tribunal finds that the applicant has proficient English as defined in reg 1.15D (10 points).

13. Therefore, the applicant is entitled to 10 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

14. 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 a period totalling at least 36, 60, or 96 months in the 10 years immediately before that time.

15. The applicant has provided no evidence and has made no claims to either the Department or the Tribunal that he has any such relevant experience or that he is entitled to any points under this part.

16. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment 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 in Australia in the nominated occupation or a closely related skilled occupation for a period totalling at least 12, 36, 60 or 96 months in the 10 years immediately before that time.

18. The applicant has provided evidence that he has worked as [an Occupation] at [Employer] in Melbourne on a full-time ongoing basis from 1 November 2021 onwards. He has provided a confirmation letter from his employer outlining his duties and responsibilities in this role.

19. On the basis of this employment, the applicant has claimed he is entitled to 5 points pursuant to item 6D41 as he claims that he has been employed in Australia in the nominated skilled occupation or a closely related occupation for a period totalling at least 12 months and less than 36 months.

20. Based on the details in the confirmation letter from the employer, the Tribunal accepts that the applicant has been employed in this position as claimed. Based on the duties and responsibilities outlined in the confirmation letter, the Tribunal also accepts that the position of [Occupation] is a closely related occupation for the purposes of Part 6D.4 to the applicant’s nominated skilled occupation of [Related occupation].

21. The decision record notes that the delegate did not accept the applicant’s employment as qualifying for the award of points under this section on the basis that such employment was unlawful because it was in breach of condition 8105 of the applicant’s student visa. This condition limited the applicant to no more than 40 hours of work in any fortnight when the holder’s course of study or training was in session.

22. However, as the applicant’s representative pointed out in a submission to the Tribunal, the applicant’s relevant employment occurred during a period of time when the Australian government had removed the hours-worked constraints imposed by this visa condition as part of a range of measures to deal with the aftermath of the Covid-19 pandemic. Specifically in relation to students such as the applicant, all restrictions on hours worked were lifted from January 2022 until 1 July 2023[1] and he was able to work unrestricted hours during this time.

    [1] Department of Home Affairs, Work restrictions for student visa holders (homeaffairs.gov.au), accessed 15 September 2023.

23. Accordingly, given that these work restrictions were lifted by the Australian government and the limitation of hours imposed by condition 8105 did not apply during this period of time, the applicant’s full-time employment as [an Occupation] was not unlawful from January 2020 until he lodged his visa application on 29 March 2023 and the applicant was in compliance with his visa conditions when undertaking this employment during this time. This period of lawful employment in the applicant’s closely related occupation is 14 months, which is more than 12 months and less than 36 months for the purposes of item 6D41.

24. Based on the evidence before it, the Tribunal finds that the applicant was employed in Australia in the nominated skilled occupation or a closely related occupation for a period totalling at least 12 months and less than 36 months in the relevant period, which satisfies the requirements of item 6D41.

25. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 5 points under this part.

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

26. 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.

27. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 points. As this is not more than 20 points, the applicant is entitled to no points under this part.

    Part 6D.6 – Australian professional year qualifications

28. 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 a period totalling at least 12 months in the immediately preceding 48 months.

29. The applicant has provided evidence that he completed the ACS Professional Year Program in Computing/ICT at Performance Education in Australia on 17 August 2018. Accordingly, the Tribunal is satisfied that the applicant has completed a professional year in Australia in his nominated occupation or a closely related skilled occupation for a period totalling at least 12 months in the immediately preceding 48 months before his invitation to apply for the visa.

30. Therefore, the applicant is entitled to 5 points under this part.

    Part 6D.7 – Educational qualifications

31. 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 reg 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.

32. The applicant has provided an academic transcript and completion letter confirming that he completed a Master of Information Technology at Charles Sturt University in Australia from 27 July 2015 to 17 July 2017. Accordingly, the Tribunal is satisfied that the applicant has met the requirements for the award of at least a bachelor’s degree by an Australian educational institution and is entitled to 15 points under item 6D72(a).

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

    Part 6D.7A – Specialist educational qualifications

34. Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a master’s degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

35. The applicant has provided no evidence and has made no claims to either the Department or the Tribunal that he has undertaken any such relevant study or that he is entitled to any points under this part.

36. Therefore, on the evidence before the Tribunal, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

37. 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 reg 1.15F of the Regulations. To meet the Australian 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.

38. As discussed above in relation to Part 6D.7, the applicant has provided evidence confirming that he completed a Master of Information Technology at Charles Sturt University in Australia from 27 July 2015 to 17 July 2017.

39. This course was a registered course for the purposes of reg 1.03. The verifying documents provided to the Department indicate that the applicant completed the course over 24 calendar months (which is more than 16 calendar months) and as a result of at least 2 academic years of study, all instruction was conducted in English and at all relevant times during these studies the applicant was the holder of a valid Australian student visa. There is no evidence before the Tribunal to indicate that the applicant did not comply with the conditions of his student visa during this study period.

40. Therefore, on the evidence before it, the Tribunal is satisfied that the Australian study requirement had been met at the time of invitation and that the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

41. 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.

42. The applicant has provided no evidence and has made no claims to either the Department or the Tribunal that he is entitled to any points under this part.

43. Therefore, on the evidence before the Tribunal, the applicant is entitled to no points under this part.

    Part 6D.10 – Study in designated regional area qualification

44. 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 reg 1.15F), the location of the campus(es) at which the study was undertaken and the location in which the applicant lived while undertaking the course of study were in a designated regional area. Distance education does not qualify as study for these purposes.

45. The applicant has provided no evidence and has made no claims to either the Department or the Tribunal that he is entitled to any points under this part.

46. Therefore, on the evidence before the Tribunal, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner qualifications

47. Ten points may be awarded under this Part if the applicant does not have a spouse or de facto partner, or the applicant has a spouse or de facto partner who is an Australian citizen or permanent resident. Five points may be awarded under this Part if the applicant has a spouse or de facto partner who is an applicant for the same subclass and is not an Australian citizen or permanent resident and at the time the applicant was invited to apply for the visa, the spouse or de facto partner had competent English. Ten 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 and at the time the applicant was invited to apply for the visa, the spouse or de facto partner was under a specified age, nominated a specified skilled occupation, had been assessed as having suitable skills, and had competent English.

48. The applicant has never been married and there is no evidence before the Tribunal that he has a spouse or de facto partner.

49. Therefore, on the evidence before the Tribunal, the applicant is entitled to 10 points under this part.

    Part 6D.12 – State or Territory nomination qualifications

50. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) 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.

    Part 6D.13 – Designated regional area nomination or sponsorship qualifications

51. Points are available under this Part for applicants who were invited to apply for a Subclass 491 – Skilled Work Regional (Provisional) visa, where the relevant agency has not withdrawn the nomination or if the applicant was sponsored by a family member, the Minister has accepted the sponsorship.

52. The applicant in this case was invited to apply for a Subclass 491 visa by the state of Western Australia and there is no evidence before the Tribunal that the nomination has been withdrawn.

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

    Conclusion on points

54. 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  5 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  5 points

    6D.7 - Educational  15 points

    6D.7A – Specialist educational  0 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in designated regional area qualification        0 points

    6D.11 - Partner qualifications  10 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated regional area nomination or sponsorship qualifications   15 points

    Total points  95 points

55. The applicant’s assessed score under the points system is therefore 95 points.

56. At the time of the delegate’s assessment the pass mark was 95 points: Legislative Instrument IMMI LIN 19/210. 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?

57. 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 95 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.

58. For the above reasons, the applicant is entitled to a maximum of 95 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 491.216, which is a prescribed criterion for the grant of the visa.

1. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

   DECISION

2. The Tribunal remits the application for a Skilled Work Regional (Provisional) (Class PS) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 491 visa:

   ·cl 491.216 of Schedule 2 to the Regulations.

   Peter Katsambanis
   Member