Bhoji (Migration)

[2023] AATA 1008

Bhoji (Migration) [2023] AATA 1008 (18 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Puja Bhoji
Mr Amit Bhoji
Master Yatish Bhoji
Master Ashmit Bhoji

CASE NUMBER:  2011466

HOME AFFAIRS REFERENCE(S):          BCC2019/3042043

MEMBER:Mary Sheargold

DATE:18 April 2023

PLACE OF DECISION:  Melbourne

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 189.224 of Schedule 2 to the Regulations.

Statement made on 18 April 2023 at 1:08pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points based visa – occupation of Accountant (General) – evidence of employment experience – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350
Migration Regulations 1994, rr 1.15, 2.26AC; Schedule 2, cl 189.224; 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 1 July 2020 to refuse to grant the applicants Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visas 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 first named applicant (the applicant) was invited to apply for the visa on 11 June 2019 and applied for the visa on 14 June 2019. The criteria for the grant of a Subclass 189 -  Skilled - Independent visa are set out in Part 189 -  Skilled - Independent 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 189.224.

3. The first and second named applicants appeared before the Tribunal on 18 April 2023 via MS Teams video link 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 Accountant (General), ANZSCO 221111.

8. The applicant claimed 95 points in her Expression of Interest submitted to the Department, and her invitation score is set at 95 points.  At the hearing, she explained to the Tribunal that she had relied on the services of a registered migration agent to make this application on her behalf, as she was heavily pregnant with her second child at the time.  The applicant told the Tribunal she believed she was entitled to 95 points under the points test at the time she submitted the EOI, and that she believed the agent had claimed all 95 points in the visa application.  She told the Tribunal that after the refusal was received, she discovered the agent had instructed a junior staff member to complete and submit the visa application so had not checked the application over carefully herself, and the employee had not lodged claims for any points in respect of her overseas or Australian employment experience.  The applicant told the Tribunal that the agent blamed the delegate for the miscalculation of points, citing the fact that the delegate could have asked the applicant for more information about her points claims prior to making the decision, but did not.

9. The Tribunal notes that in fact, the delegate appeared to be at pains to assist the applicant in reaching the points set out in the invitation, carefully considering whether the applicant may be entitled to points for her husband’s skills and qualifications, as there was a change to the law regarding such points between the time the application was made and the time the delegate’s decision was made.  In the absence of any claim or evidence regarding employment experience, it was not reasonable to expect the delegate to ask the applicant if there was any claim made for that experience.

10. However, at review, and only 8 days prior to the hearing, the applicant submitted detailed evidence regarding her employment experience in both India and Australia where she has worked as an accountant for many years.  She has provided employment contracts, employment references, and pay slips, for all the work experience she believed had been claimed in her application, and told the Tribunal that the agent had been furnished with the same evidence at the time the application documents were gathered in 2019.  It is clear to the Tribunal that the applicant would not have submitted an EOI for this visa suggesting she was entitled to 95 points if she did not have evidence to support that; her points claim is well in excess of the minimum qualifying score of 65 points.  There is no reason the applicant would artificially inflate her claim for her EOI given the consequences when it came to lodging the visa application.

11. Through a series of errors the Tribunal accepts were not of the applicant’s making, the Tribunal accepts the applicant’s claims regarding her employment history and has found in her favour with respect to those claims at review.

    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

12. 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.

13. At the time of invitation, the applicant was aged 31 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

14. 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.

15. The relevant instrument specified scores of at least 65 in each testing component of Speaking, Listening, Reading, and Writing under the Pearson Test of English Academic (PTE) for an applicant to be found to have a superior English language ability.  The applicant submitted her test results for the PTE test taken on 25 July 2018 demonstrating scores well above the minimum in each level; she achieved a score of 81 for Listening, 79 for Reading, 90 for Speaking, and 90 for Writing.  Therefore, the Tribunal is satisfied that she has superior English for the purposes of this part, and so she is entitled to 20 points under this part.

    Part 6D.3 – Overseas employment experience qualifications

16. 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.

17. The applicant has explained that despite claiming points for her overseas employment experience in her EOI, the agent who made the application on her behalf did not claim any points for her work experience in India.

18. At review, the applicant has provided her employment offer, her payslips, and a written reference from her employer confirming she worked as an Assistant Accountant with Gurveen Narang & Associates Chartered Accountants in Amritsar from 1 May 2008 to 31 March 2009 as a trainee, then from 1 April 2009 to 31 May 2014 in a full time capacity as a fully qualified accountant.

19. Therefore, the Tribunal is satisfied that in light of this new evidence available, that was not put before the delegate (noting the applicant believed it had been), the Tribunal is satisfied that she worked in her nominated skilled occupation of Accountant (General) for at least 60 months in the relevant period, and therefore is entitled to 10 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. Again, the applicant claimed 5 points under this Part in her EOI, yet a claim was not made when her visa application was lodged.  At review, the Tribunal has been furnished with documents confirming that the applicant was employed by Yatish Transport Pty Ltd, the second named applicant’s business, for over 12 months prior to the invitation to apply being made.  The applicant stated she worked in a permanent part time capacity for at least 20 hours per week managing all the accounting and bookkeeping affairs for her husband’s business, and provided payslips to demonstrate that the work had been performed.  Both applicants at hearing confirmed that the first named applicant was paid her salary as entitled, and that upon resigning from her husband’s company, her accrued annual leave entitlements had been paid out.

22. ‘Employed’ is defined in the Regulations as working for at least 20 hours per week, and so the Tribunal satisfied that she meets the threshold amount of hours worked for these points.  Although it is somewhat unorthodox to work in a family owned business, it is not prohibited, and given the evidence provided, including the applicants’ oral evidence at the hearing, the Tribunal is prepared to accept that she does have at least 12 months of Australian employment experience in her nominated skilled occupation.

23. 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

24. 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.

25. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 15 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

26. 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.

27. The applicant, as an Accountant (General), was able to demonstrate she had completed a professional year of the type set out in the relevant instrument whilst holding a Subclass 485 visa.  Her evidence is that she worked for a company known as ECA Pty Ltd, and the Tribunal notes the Department verified her claim directly with the education provider when assessing the application.  Therefore, the applicant is entitled to 5 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 has provided evidence that she completed a Master of Accounting at Charles Darwin University from 10 November 2014 to 5 July 2016.  She has provided a copy of her testamur, academic transcript, and letter of completion.  As this is ‘at least’ a bachelor degree, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

30. 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.

31. No claims were made under this Part.  The applicant’s Masters degree was completed by coursework, not research.

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

    Part 6D.8 – Australian study qualifications

33. 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.

34. The Tribunal is satisfied that the applicant’s Master of Accounting from Charles Darwin University was a registered course with a known Australian educational institution that she completed over at least 16 calendar months, that was the result of at least 2 academic years of study, and that she completed that degree whilst holding a student visa.

35. 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

36. 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.

37. The applicant has provided evidence that she passed a Credentialed Community Language test in Punjabi with NAATI on 13 September 2018.

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

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

39. 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 designated regional area.  Distance education does not qualify as study for these purposes.

40. The applicant made no claims under this Part.  Her studies were completed in the Melbourne CBD, which is not a postcode in the relevant item in LIN 19/217.

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

    Part 6D.11 – Partner qualifications

42. 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.

43. The applicant is married to an Indian citizen.  The applicant’s spouse was assessed as having functional English at the time of the invitation to apply.  He does not claim to have a skilled occupation.

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

    Part 6D.12 – State or Territory nomination qualifications

45. 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

46. 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

47. 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  10 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  5 points

    6D.10 - Study in designated regional area qualification        5 points

    6D.11 - Partner qualifications  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated regional area nomination or sponsorship qualifications           0 points

    Total points  95 points

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

49. 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 score stated in the invitation to apply for the visa?

1. 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.

2. 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 189.224, 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, including in relation to the secondary applicants.

   DECISION

3. 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 189.224 of Schedule 2 to the Regulations.

   Mary Sheargold
   Member