Arshad (Migration)

[2024] AATA 2402

Arshad (Migration) [2024] AATA 2402 (30 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rizwan Arshad

REPRESENTATIVE:  Mr Duy San

CASE NUMBER:  2207622

HOME AFFAIRS REFERENCE(S):          BCC2019/2961242

MEMBER:Amanda Mendes Da Costa

DATE:30 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:

·cl 190.214 of Schedule 2 to the Regulations.

Statement made on 30 May 2024 at 2.04pm

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled - Nominated) – accountant – points test – assessed score equals or exceeds score stated in invitation to apply – Australian employment experience – part-time work – reference, superannuation contributions, payslips and bank statements – employment accepted for professional year requirements – dispute with employer about superannuation contributions – 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 2, cl 190.214, Schedule 6D, Part 6D.4

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 10 May 2022 to refuse to grant the applicant a Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) 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 17 May 2019 and applied for the visa on 11 June 2019. The applicant’s invited score (85) was specified in the invitation letter. The criteria for the grant of a Subclass 190 -  Skilled - Nominated visa are set out in Part 190 -  Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not qualify for any points under Part 6D.4 of Schedule 6D of the Regulations. The applicant had claimed 5 points under this Part for having at least 12 months of experience working with Crazy PC Pty Ltd (Crazy PC) as an Accountant from 22 November 2017 to 3 December 2018.

3. The applicant appeared before the Tribunal on 29 May 2024 to give evidence and present arguments. He was represented in relation to the review, with his representative also participating in the hearing.

4. At the commencement of the Tribunal hearing, the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

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 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.’

7. 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).

8. 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 Accountant (General) ANZSCO 221111.

   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

9. 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.

10. At the time of invitation, the applicant was aged 28 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

11. Points are available under this Part based on the applicant’s level of English language proficiency at the time of invitation to apply for the visa.

12. The applicant provided the following information in support of her English language claims:

    Name of test:  PTE Academic

    Date of test:  31 August 2018

    Test Reference Number:                   340392289

    Country where test undertaken:        Australia

    Language ability:  Superior

13. Based on the results of the applicant’s English test, the Tribunal finds that the applicant has Superior English as defined in reg 1.15EA.

14. Therefore, the applicant is entitled to 20 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

15. 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.

16. The applicant has made no claims and provided no evidence that he was employed in a skilled occupation for at least 36 months in the 10 years immediately before the invitation to apply for the visa.

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

    Part 6D.4 – Australian employment qualifications

18. 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.

19. In his visa application, the applicant nominated the occupation of Accountant (General) ANZSCO 221111. He also made the following employment claims:

    Position:         Accountant

    Employer name:        Crazy PC Pty Ltd

    Country:  Australia

    Date from:                  22 November 2017

    Date to:  3 December 2018      

20. The work reference dated 3 December 2018 from Crazy PC confirms that the applicant was employed by the company as an Accountant on 22 November 2017 to date as a part-time Accountant with a minimum of 20 hours per week.

21. The applicant has also provided a statement from the Australian Taxation Office dated 10 December 2018 which shows that for the period 22 November 2017 to 22 November 2018 Crazy PC Pty Ltd paid the sum of $1,931.80 in superannuation contributions for the applicant.

22. The payslips provided show that the applicant worked for Crazy PC Pty Ltd for at least 20 weeks during the period 1 November 2017 to 30 June 2018. The applicant’s yearly salary for the financial year ended 30 June 2018, the applicant’s salary of $11,200 is shown in the payslip dated 22 June 2018 and the PAYG summary.

23. The applicant’s hourly rate from 1 November 2017 to 30 June 2018 was $18.36 which equates to 610 hours or 30 weeks of work which equates to 20.33 hours worked each week.

24. The Tribunal notes that the applicant was paid at the rate of $18.36 per hour from 1 July 2018 and thereafter at the rate of $22.84 per hour from 1 August 2018. The applicant’s salary from the latter date is shown in his bank statements as ‘Transfer from CBA NetBank SALARY CRAZY PC’ on the following dates:

    ·22 July 2018

    ·22 August 2018

    ·21 September 2018

    ·23 October 2018

    ·23 November 2018

25. The payslips provided show that the applicant was paid a gross salary of $9,135 for the financial year ended 30 June 2019 which is consistent with the PAYG summary which shows that his total salary from Crazy PC was $9,135.00.

26. The applicant claims that due to a dispute regarding unpaid superannuation contributions by Crazy PC, he ceased working for the business at the end of October 2018 and was placed on unpaid leave until 3 December 2018 when he formally ceased his employment on 3 December 2018.

27. In his statutory declaration (dated 21 May 2024) the applicant states that:

    ·He is currently employed as a full-time accountant at AusGroup Protective Services Pty Ltd.

    ·He commenced his employment at Crazy PC on 1 November 2017 and from that date until 26 October 2018 he worked approximately two and a half to three days each week in the role of Accountant and was paid for his work.

    ·In the first week of his employment with Crazy PC he worked two and a half days, totalling 20 hours and between the commencement of his second week of work on 6 November 2017 and his last day of employment on 26 October 2018 there were 51 weeks and he worked at least 20 hours each week.

    ·In total he accumulated 52 weeks of part-time employment, working at least 20 hours per week. This assertion is consistent with the information provided by Crazy PC in its reference letter.

    ·The payslips provided my lawyer in support of my employment with Crazy PC show that I was employed by the business from 1 November 2017 to 31 October 2018.

    ·His payslips were issued monthly, covering the period from the first to the last day of each month. There were weeks which commenced in one month and ended in the following month, resulting in the subsequent month’s payslips recording hours to working days in the previous month.

    ·His payslips for the period 1 July 2018 to 31 July 2018 recorded only 99.50 hours, whereas he actually worked 102.50 hours. When he addressed this discrepancy with his employer, he was offered compensation to make up the three-hour shortfall in his next payslip. However, this adjustment was never made. And since the discrepancy only involved three hours, the applicant did not pursue the matter further.

    ·Over a 52-week period, he actually worked a total of 1,051.9 hours which averages to 20.23 hours per week.

    ·Even without taking into account the three-hour shortfall in his payments, his payslips record a total of 1,048.9 hours in the period 1 November 2017 to 31 October 2018, which is an average of about 20.17 hours per week. 

    ·He ceased my employment with Crazy PC on 26 October 2018 due to a dispute with his employer. However, he continued to work there on an interim basis to fulfill the placement requirements of his Professional Year certificate from Performance Education. He finally left Crazy PC after he completed the required placement in December 2018.

    ·While working at Crazy PC he also worked as a rideshare driver to utilize his time and energy to earn additional income. Both roles were genuine and engaging as a driver did not have an impact on his employment as an Accountant.

28. The PAYG summary for the financial year ended 30 June 2019 shows a totals salary payment of $9,135. The Tribunal is satisfied he was paid $3,654 gross from 1 June 2018 to 31 July 2018 and $5,481 from 1 August 2018 to 31 October 2018 (13 weeks) which amounts to $422 per week or $18.36 per week for 8.5 weeks.

29. The Tribunal accepts that although the reference letter from Crazy PC states that the applicant commenced his employment with it from 22 November 2017, the payslips provided show that he commenced his employment on 1 November 2017. The Tribunal accepts the applicant’s evidence that although the later date was initially the agreed start date, the company offered an immediate start (due to the resignation of another employee), which was accepted by the applicant.

30. The Tribunal accepts that due to a disagreement with his employer about its superannuation contributions to the applicant, he ceased his paid employment on 31 October 2018 but did not formally resign his employment with Crazy PC until 3 December 2018. The Tribunal is satisfied that he did not engage in any paid work for the employer from 26 October 2018 and finds for the purpose of a determination of his entitlement to points,  the applicant’s employment with Crazy PC was the period of his paid employment i.e., from 1 November 2017 to 31 October 2018.

31. The Tribunal also notes that the applicant has had his employment by Crazy PC credited by Performance Education as constituting part of his professional year requirements, which meant that he was not required to undertake a separate internship recognized by Performance Education. The Tribunal further notes that the applicant undertook classes organized by Performance Education throughout his professional year, including in November 2018.

32. The Tribunal has further taken into account that Performance Education assessed his employer and the work he was undertaking as relevant to his occupation of Accountant (General).

33. Based on the documentary and oral evidence before it, the Tribunal is satisfied that at the time of invitation to apply for the visa, the applicant had been employed in Australia in the nominated skilled occupation of Accountant (General) for a period totalling at least 12 months and less than 36 months in the relevant period.

34. 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

35. 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.

36. 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

37. 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.

38. Accordingly, the Tribunal is satisfied that at the time of invitation to apply for the visa, the applicant had completed a Professional Year in the nominated occupation or a closely related occupation for a period totalling 12 months in the immediately preceding 48 months.

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

    Part 6D.7 – Educational qualifications

40. 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.

41. In his visa application the applicant claimed the following educational qualifications:

    ·Graduate Diploma in Business and Master of Professional Accounting from Holmes Institute with the course commencing on 16 March 2015 and concluding on 10 July 2017.

42. In support of this claim the applicant provided an Academic Transcript issued by Holmes Institute on 10 July 2017.

43. Based on this evidence, the Tribunal is satisfied that the applicant has met the requirements for the awards of at least a bachelor’s degree by an Australian educational institution.

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

    Part 6D.7A – Specialist educational qualifications

45. 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.

46. The applicant has made no claims and provided no evidence that at the time of invitation to apply for the visa, he held a specialist educational qualification.

47. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

48. 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.

49. The Tribunal is satisfied that the applicant holds the following qualifications:

    ·Graduate Diploma in Business.

    ·Master of Professional Accounting.

50. The Tribunal is further satisfied that the applicant’s course of study for the Master of Professional Accounting was undertaken at Homes Institute, commencing 16 March 2015, and concluding on 10 July 2017. Based on this evidence, the Tribunal is satisfied that the applicant  has completed one or more degrees, diplomas, or trade qualifications for award by an Australian educational institution as a result of a course or courses that met the requirements of reg 1.15F.

51. As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

52. 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.

53. The applicant has made no claims and provided no evidence of holding a qualification in a particular language awarded or accredited by a body, and at a specified standard for the language.

1. Therefore, the applicant is entitled to no points under this part.

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

2. 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.

3. The applicant has made no claims and provided no evidence of having met the study in a designated regional area qualification.

4. Therefore, the applicant is entitled to no points under this part.

   Part 6D.11 – Partner qualifications

5. 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.

6. The applicant has made no claims and provided no evidence of being entitled to points under this part and therefore the Tribunal finds that he is entitle to no points under this part.

   Part 6D.12 – State or Territory nomination qualifications

7. Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa.

8. The Tribunal notes that the applicant was invited to apply for the visa and the nomination of the State of New South Wales has not been withdrawn.

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

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

10. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - Regional) (Provisional) visa or a Subclass 491 (Skilled Work Regional (Provisional)) 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.

    Conclusion on points

11. 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  20 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  0 points

    6D.12 - State or Territory nomination  5 points

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

    Total points  85 points

12. The applicant’s assessed score under the points system is therefore 85 points.

13. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210. The applicant has therefore achieved the qualifying score to pass the points test.

    Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

14. The Tribunal is satisfied that there are no changes to the Regulations or pass marks which affects its assessment in relation to the applicant.

    Has the applicant achieved the score stated in the invitation to apply for the visa?

15. 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 85 points. Based on the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

16. For the above reasons, the applicant is entitled to a maximum of 85 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 190.214, 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

17. The Tribunal remits the application for a Skilled Nominated (Permanent) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 190 visa:

    ·cl 190.214 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    Member