Curran (Migration)

[2019] AATA 6290

Curran (Migration) [2019] AATA 6290 (5 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jennifer Sarah Curran

CASE NUMBER:  1830406

DIBP REFERENCE(S):  BCC2018/1244235

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         5 September 2019 at 11:27 am (VIC time)

DATE OF WRITTEN RECORD:                20 September 2019

PLACE OF DECISION:  Melbourne

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

·cl.190.214 of Schedule 2 to the Regulations.

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – meet the qualifying score – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 94
Migration Regulations 1994, Schedule 2, cl 190.214

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 October 2018 to refuse to grant the visa applicant a Skilled Nominated (Permanent) Subclass 190 visa under the Migration Act 1958 (the Act).

2. At the hearing on 5 September 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. You came to Australia on 19 August 2014 as the holder of a subclass 601 electronic travel authority visitor visa.  You were subsequently granted a 417 working holiday visa and a 457 temporary skilled visa.  You lodged this application for a subclass 190 skilled visa, which is a permanent visa, on 15 March 2018.

4. Your application was refused on 3 October 2018 because the delegate found you did not meet clause 190.214(1) of schedule 2 of the Regulations. To satisfy the requirements for the grant of a skilled visa, applicants must satisfy a range of requirements set out in the Regulations.

5. The Act provides a points system under which applicants for skilled visas are given and assessed on a score based on points prescribed for particular attributes the qualifications and points applicable in this case are prescribed in schedule 6D to the Regulations.  The required levels of points is set from time to time by the Minister.

6. Subsection 94(1) of the Migration Act provides that an applicant whose assessed score is more than or equal to the applicable pass mark at the time that the score is set is taken to have received the qualifying score.

7. Reading from the primary decision your invite score as specified in your invitation letter dated 15 March 2018 was 60 and on 3 October 2018 you were given an assessed score of 55, therefore you have not met a legislative requirement for the grant of this visa as you have not satisfied clause 190.214(1) of Schedule 2 to the Regulations your application has not been assessed against the remaining criteria for a subclass 190 visa. The delegate was not satisfied that the evidence provided entitled you any points for your employment experience in Australia and therefore refused your application.

8. You appealed that decision to be reviewed by the Tribunal and with your application you included a copy of the primary decision.  The role of the Tribunal is to take a fresh look at your application and consider whether or not you meet the requirements for the grant of a 190 visa.

9. So we go through and look at the various components.  The age component at the date of invitation on 15 March 2018 you were 25 years old and you are therefore entitled to 30 points for that criterion.  The English level: in an IELTS test taken on 6 May 2017 you achieved a CFR score of C2 indicating a proficient English level and are therefore entitled to 10 points under this criterion.  Education qualifications, you satisfactorily completed a Certificate III in Retail Baking and provided evidence of a skills assessment issued by VET Assess on behalf of TRA stating that your qualifications were recognised by the assessing authorities and consequently 10 points were awarded for that criterion.

10. Under the State or Territory nomination you were invited for this 190 visa and the nomination of Victoria has not been withdrawn.  You are therefore awarded five points under that category. 

11. So we come to the Australian employment experience category.  You have provided evidence that you worked for the Burnt Orange Cafe from 1 July 2015 to 23 December 2015, a period of five months and 22 days.  For Mosaic Patisserie from 20 March 2016 to 29 January 2017, a period of 10 months and nine days.  And for the Commercial Bakery from 30 January 2017 until 14 May 2017, a period of three months and 15 days.  In each of those roles you worked in your nominated occupation as a Pastry Cook.  For each of those periods of employment you provided PAYG summaries, bank statements for the relevant periods, superannuation statements and tax returns.

12. The Tribunal is satisfied that the evidence presented and at the time of the invitation to apply for the visa you had been employed in Australia in your nominated skilled occupation of Pastrycook for a period greater than 12 months in the 10 years immediately before the date of invitation.  The Tribunal therefore finds you are entitled to be awarded five points for this criterion.

13. As I said, the Tribunal does not grant visas, we review decisions of the Department to refuse visa applications.  On the evidence provided I am satisfied that you meet the qualifying score and the score stated in your invitation to apply for the decision. 

14. The Tribunal is therefore satisfied you meet the requirements of clause 190.214 and will therefore remit the matter to the department for further consideration.

    DECISION

    The Tribunal remits the application for a Skilled – Nominated (subclass 190) Skilled Nominated (Permanent) (Class SN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 190 visa:

    * cl.190.214 of Schedule 2 to the Regulations.

    Tim Connellan
    Member