Battan (Migration)

[2024] AATA 1626

Battan (Migration) [2024] AATA 1626 (26 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sonu Battan

CASE NUMBER:  2210517

HOME AFFAIRS REFERENCE(S):          BCC2020/2347093

MEMBER:Mary Sheargold

DATE:26 April 2024

PLACE OF DECISION:  Melbourne

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 26 April 2024 at 11:34am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – Café or Restaurant Manager – ‘points test’ criterion – English language qualifications – test undertaken in Chennai – no test day photo – Australian employment qualifications – Educational qualifications – Australian study qualifications – Partner qualifications – Designated regional area nomination or sponsorship qualifications – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96, 350
Migration Regulations 1994 (Cth), rr 1.15D, 2.26AC; Schedule 2, cl 491.216; Schedule 6D

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 7 July 2022 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 16 September 2020 and applied for the visa on 22 September 2020. 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 appeared before the Tribunal on 26 April 2024 to give evidence and present arguments.

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 LIN 19/051. In the present case, the applicant nominated the occupation of Café or Restaurant Manager, ANZSCO 141111.

   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 was aged 29 years. 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 claimed to have proficient English as defined in r 1.15D.  He provided a Cambridge Certificate in Advanced English assessment statement for a test taken in October 2019 in Chennai, India.  He needed to demonstrate a score of at least 185 in each of the 5 testing components, which the results statement reflects.  However, the delegate had concerns as to whether the applicant had undertaken this language test himself, and decided to award no points under this Part.

12. At review, the applicant insists that he did travel to Chennai on 19 October 2019, remaining there for a week before returning to Australia on 28 October 2019.  He states that he took the English language test on 26 October 2019.  The Tribunal notes that the test provider confirmed for the delegate that the testing had taken place and the results indicated were accurate.  However, there was not a test day photo provided for the applicant and so the delegate could not verify that it was the applicant who had completed the test.

13. At the hearing, the applicant explained that he had flown to Chennai to visit his father who had recently been diagnosed with cancer.  He stated that he took the English language test during that trip as there was some urgency around having a result ready to submit for another visa application.  Mr Battan’s recollection is that he arrived at the test centre at around 8:30am ahead of a 9:00am start time for the test, and that he was greeted by a woman whom he guessed to be 65 years old, who took his photo using a laptop with a camera attached.  He recalls that there were approximately 30 others taking the test at the same time he was taking the test.

14. After the hearing, the representative provided a signed statutory declaration made by Mr Battan on 18 April 2024 that reflects the evidence regarding his travel to India and the lack of availability of a copy of his results from the test including his photo, citing the passage of time as the main reason it was not available.

15. Based on all the additional evidence available at review, the Tribunal is satisfied that Mr Battan is the person who undertook the CAE test on 26 October 2019 at Chennai, India, and that the results of that test demonstrate that he has proficient English as defined in r 1.15D.

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

    Part 6D.3 – Overseas employment experience 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 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.

18. The applicant made no claims and provided no evidence that he had been employed outside Australia in his nominated skilled occupation or a closely related skilled occupation.

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

    Part 6D.4 – Australian employment qualifications

20. 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.

21. At the time of application, the applicant provided no evidence that he had been employed in Australia in his nominated occupation or a closely related occupation for at least 12 months in the 10 years prior to applying for this visa.  However, at review he has provided a written statement from his former employer, copies of payslips and a PAYG statement that demonstrate he has worked for at least 12 months as a Café or Restaurant Manager in Australia in the 10 years immediately prior to making this application. 

22. 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

23. 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.

24. 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

25. 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.

26. The applicant made no claims and provided no evidence that he had completed a professional year at the time he was invited to apply for this visa.  

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

    Part 6D.7 – Educational qualifications

28. 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.

29. The applicant holds a number of diplomas and certificates in business-related studies.  His final course was a Graduate Diploma of Management awarded by Tas College in Hobart.  The Tribunal is satisfied that this qualification is a qualification of ‘at least’ a Bachelor level degree.

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

    Part 6D.7A – Specialist educational qualifications

31. 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 masters 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.

32. The applicant made no claims and provided no evidence that he holds a specialist educational qualification.

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

    Part 6D.8 – Australian study qualifications

34. 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.

35. The applicant has completed several diploma level and certificate level courses in Australia, and having considered all of the particulars presented in respect of those courses, the Tribunal is satisfied that he has met the Australian study requirement as defined in r 1.15F

36. 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

37. 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.

38. The applicant made no claims and provided no evidence that he has a qualification in a particular language awarded by a specified body.

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

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

40. 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.

41. The applicant made no claims and provided no evidence that he had studied in a designated regional area.

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

    Part 6D.11 – Partner qualifications

43. 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.

44. The applicant was divorced at the time of his invitation and application for this visa.  He does not have a de facto partner or spouse.

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

    Part 6D.12 – State or Territory nomination qualifications

46. 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

47. 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. The applicant in this case was invited to apply for a Subclass 491 visa.

48. The applicant was nominated by the State of Tasmania, and there is no evidence to suggest that the State of Tasmania has withdrawn its nomination. Therefore, the applicant is entitled to 15 points under this part.

    Conclusion on points

49. 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  0 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  90 points

50. The applicant’s assessed score under the points system is therefore 90 points.

51. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument: 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?

52. 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. 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.

53. For the above reasons, the applicant is entitled to a maximum of 90 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. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

54. 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.

    Mary Sheargold
    Member