Dao (Migration)

[2017] AATA 821

Dao (Migration) [2017] AATA 821 (24 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Cam Dao

CASE NUMBER:  1611836

DIBP REFERENCE(S):  BCC2016/1301282

MEMBER:Wan Shum

DATE:24 May 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 24 May 2017 at 11:10am

CATCHWORDS

Migration – Skilled Independent (Permanent) visa (Class SI) – Subclass 189 – Points test – Computer Network and Systems Engineer – Pass mark 60 points – Qualifying score not achieved

LEGISLATION

Migration Act 1958, ss 65, 94, 96(2), 350
Migration Regulations 1994, cl 189.214, Schedule 6D, Part 6D.7A, r 2.26AC, r 1.15, IMMI 12/017, IMMI 16/060

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 Immigration on 21 July 2016 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa under s.65 of the Migration Act 1958 (the Act). This is a points based visa designed for skilled applicants who 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 23 March 2016 and applied for the visa on 29 March 2016. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

3. It requires nomination of a skilled occupation and satisfaction of the ‘points test’, which essentially enables assessment of the applicant’s suitability for employment in that occupation in Australia. The applicant is claiming to have the necessary skills for the occupation of Computer Network and Systems Engineer.

4. Following an assessment of the evidence provided, the delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl.189.214.

5. The applicant has sought review of that decision.

6. The applicant appeared before the Tribunal on 24 May 2017 to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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’.

9. 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 (r.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).

10. The qualifying score at the time of the delegate’s assessment, and at the time of this assessment, is 60. The score in the invitation to apply for the visa was 65, based on the information provided in the expression of interest.

11. 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 (r.1.15I). The relevant instrument for this purpose is Legislative Instrument IMMI 16/060. In the present case, the applicant nominated the occupation of Computer Network and Systems Engineer which is an occupation specified in the relevant Schedule of IMMI 16/060.

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

    Part 6D.2 – English language qualifications

14. For points under this Part, the applicant needed to provide evidence that, at the time of the invitation to apply for the visa, he had ‘superior English’ (as defined in r.1.15EA) or ‘proficient English’ (as defined in r.1.15D).

15. The applicant said at the hearing that he had sat an IELTS test prior to applying for the visa but did not achieve the minimum score of 7 in each band. Therefore, the applicant is not entitled to 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 at least 36, 60, or 96 months in the 10 years immediately before that time.

17. The applicant did not claim to have been employed overseas in employment related to the nominated position.

18. Therefore, the applicant is not entitled to points under this part.

    Part 6D.4 – Australian employment qualifications

19. 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 at least 12, 36, 60 or 96 months in the 10 years immediately before that time. The term ‘employed’ is defined by r.2.26AC(6) as ‘engaged in an occupation for remuneration for at least 20 hours weekly’.

20. The applicant claims to have been employed as a Network Engineer with MD Connect Pty Ltd from 1 January 2010 to 30 June 2015. He provided a letter from his employer stating that he was employed on a part time basis working on average 20 hours per week. However, other material provided includes payroll advice from the employer which lists the applicant’s payslips for that period indicate that the applicant often worked for less than 20 hours per week. Based on the payroll advice provided, the applicant worked for 20 hours per week or more for 22 weeks in total. At the hearing, the applicant confirmed that he was claiming three and a half years’ employment from November 2011 for the purposes of the points test. While he had begun working for MD Connect when he was still studying, he completed his bachelor degree studies in November 2011. He then studied business. The applicant told the Tribunal that he worked between 6 to 20 hours per week for MD Connect. His work hours varied depending on his studies and the schedule that the company gave him. His role involved onsite network maintenance for the clients; it was not an office based job.

21. While the Tribunal accepts that the applicant was an employee of MD Connect for the period claimed, it finds that he was not ‘employed’ as a Network Engineer because, based on his own evidence, he was not ‘engaged in [the] occupation for remuneration for at least 20 hours weekly’. The applicant had wanted to seek review because he thought his work experience was relevant to the visa. The Tribunal however is unable to award points based on an assessment or consideration of his actual skills for the nominated occupation for the purposes of this Part.

22. It thus finds that the applicant had not been employed in Australia for the claimed period. He is therefore not entitled to 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 applicant has not been awarded points under either Parts 6D.3 and 6D.4.

    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 at least 12 months in the immediately preceding 48 months. The relevant instrument (IMMI 12/029) specifies that the Professional Year Program provided by the Institute of Chartered Accountants in Australia, the Certified Practising Accountants Australia and the Institute of Public Accounting which is available to accounting graduates is one such course.

26. The applicant advised that he did not complete a professional year. Therefore, he is not entitled to points under this Part.

    Part 6D.7 – Educational qualifications

27. 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 r.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.

28. The applicant has provided evidence of being awarded a bachelor degree of Information Technology by Central Queensland University.

29. The Tribunal finds that the applicant was awarded a bachelor degree by an Australian educational institution and is therefore entitled to 15 points.

    Part 6D.8 – Australian study qualifications

30. 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 r.1.15F of the Regulations. To meet the 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.

31. The applicant meets the Australian study requirement and is entitled to 5 points under this part.

    Part 6D.9 – Credentialled community language qualifications

32. 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.

33. The applicant is not claiming, and he is not entitled to, points under this Part.

    Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area 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 r.1.15F), and that study was undertaken, and the applicant lived, in a specified area of Australia. Distance education does not qualify as study for these purposes. The applicant is not claiming to have undertaken study in regional Australia or a low population growth area and is not entitled to points under this part.

    Part 6D.11 – Partner Skill Qualifications

35. Five 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. At the time the applicant was invited to apply for the visa, the spouse / partner must have been under 50 years of age, have nominated a specified skilled occupation, been assessed as having specified skills, and have competent English.

36. The applicant has not claimed and, is not entitled to points, under this part.

    Part 6D.12 – State or Territory nomination qualifications

37. 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 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 area sponsorship qualifications

38. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled - 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

39. 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  0 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  NA

    6D.6 - Australian professional year  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  15 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in regional / low-population area  0 points

    6D.11 - Partner skill  0 points

    6D.12 - State or Territory nomination  0 points

    6D.13 - Designated area sponsorship  0 points

    Total points  50 points

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

41. At the time of the delegate’s assessment the pass mark was 60 points: Legislative Instrument IMMI 12/017. The applicant has not 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?

42. The only change to the Regulations at the time of the Tribunal’s decision was the addition of Part 6D.7A (Specialist educational qualifications) which was added to the regulations with effect from 10 September 2016. However, the applicant had not undertaken study in Australia for a masters degree by research or a doctoral degree. He is therefore not entitled to points under this Part. The pass mark at the time of the Tribunal’s assessment remains at 60 points: Legislative Instrument IMMI 12/017. Therefore, the applicant has not achieved the qualifying score to pass the points test applying the law in force at time of this assessment.

43. For the above reasons, the applicant is entitled to a maximum of 50 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl.189.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

44. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Wan Shum
    Member