Dhamija (Migration)

[2023] AATA 745

Dhamija (Migration) [2023] AATA 745 (22 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Keshav Dhamija

CASE NUMBER:  2005208

HOME AFFAIRS REFERENCE(S):          BCC2019/5494863

MEMBER:Mary Sheargold

DATE:22 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 22 March 2023 at 9:55am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicants failed to attend tribunal hearing – Registered Nurse – Tribunal is not satisfied that the applicant achieved the qualifying score – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 362, 379
Migration Regulations 1994, r 2.26B, Schedule 2, cl 189.224

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 2 March 2020 to refuse to grant the applicant a Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) 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 11 October 2019 and applied for the visa on 1 November 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. The applicant provided no supporting documents to the Department when he made his application, and other than a copy of his passport, no supporting documents have been provided to the Tribunal at review.

3. On 22 February 2023, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 21 March 2023 at 10:30am AEDT to be held by MS Teams video link.  The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice.

4. No response to the hearing invitation was received.  The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), and the invitation has not been returned to sender.  In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

   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 LIN 19/051.  In the present case, the applicant nominated the occupation of Registered Nurse (Aged Care), ANZSCO 254412.

9. The Tribunal notes that the only evidence available to it at review is a copy of the applicant’s passport provided to the Tribunal with his application, as well as a copy of his Expression of Interest form lodged with the Department on 9 October 2019, located in the Department’s file.

   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

10. 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.

11. The Tribunal has considered the applicant’s passport provided with his review application. At the time of invitation the applicant was aged 23 years. Therefore, the applicant is entitled to 15 points under this part.

    Part 6D.2 – English language qualifications

12. 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.

13. Other than an unverified test reference number for a PTE Academic test taken in August 2019, the applicant has not provided the Department or the Tribunal with any evidence regarding his level of English proficiency at the time of invitation.

14. Therefore, without evidence from PTE Academic or any other source to confirm the applicant’s claim that he has  a superior English language ability as required under Part 6D.2, the applicant is entitled to no 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 not provided the Department or the Tribunal with any evidence regarding his overseas employment experience.

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. The applicant has not provided the Department or the Tribunal with any evidence regarding his Australian work experience.

20. Therefore, subject to consideration of Part 6D.5, without evidence to confirm the applicant’s Australian work experience claimed in his Expression of Interest form provided to the Department on 9 October 2019, the applicant is entitled to no points under this part.

    Part 6D.5 - Aggregating points for employment experience qualifications

21. 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.

22. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 0 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

23. 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.

24. In his Expression of Interest form, the applicant claims to have completed a professional year in computer science in Australia.  However, there is no evidence available to the Tribunal to verify this claim.

25. Therefore, without supporting evidence to demonstrate that the applicant has completed this professional year, the applicant is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

26. 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.

27. The applicant claims he met this requirement by reference to a Bachelor of Nursing obtained from the Jalandhar Institute of Medical & Nursing on 18 October 2017.  However, he has provided no evidence to corroborate his claim.

28. Therefore, based on the evidence available at review, the applicant is entitled to no points under this part.

    Part 6D.7A – Specialist educational qualifications

29. 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.

30. The applicant claims to have attained a post graduate specialist qualification in physics and astronomy.  However, he has provided no evidence to the Department or the Tribunal to verify his claims.

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

    Part 6D.8 – Australian study qualifications

32. 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.

33. In his Expression of Interest form, the applicant claims to have met the Australian study requirement.  However, he has not provided the Department or the Tribunal with any evidence regarding that study.  Therefore, the Tribunal cannot find that he has met the Australian study requirement at the time of invitation.

34. As the Australian study requirement had not been met at the time of invitation, the applicant is entitled to no points under this part.

    Part 6D.9 – Credentialled community language qualifications

35. 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.

36. The applicant claims to have obtained credentialled community language qualifications.  However, he has provided no evidence to confirm which language this qualification relates to or when it was attained.

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

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

38. 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.

39. While the applicant claims to have studied in a designated regional area, there is no evidence available at review to confirm that he has done so.

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

    Part 6D.11 – Partner qualifications

41. 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.

42. The applicant has made no claims relating to partner qualifications.

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

    Part 6D.12 – State or Territory nomination qualifications

44. 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

45. 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

46. 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  15 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  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  0 points

    6D.7A – Specialist educational  0 points

    6D.8 - Australian study  0 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  0 points

    6D.13 - Designated area sponsorship qualifications             0 points

    Total points  15 points

47. The applicant’s assessed score under the points system is therefore 15 points.

48. At the time of the delegate’s assessment the pass mark was 65 points: LIN 19/210.  The applicant has therefore 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?

49. LIN 19/210 is still in force at the time of the Tribunal’s assessment.  Neither the pool mark nor pass mark for the points test has changed.

50. Therefore, the Tribunal is not satisfied that the applicant achieved the qualifying score at the time of the delegate’s assessment, and is not satisfied that he achieved the qualifying score at the time of the Tribunal’s assessment.

51. For the above reasons, the applicant is entitled to a maximum of 15 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl 189.224. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

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

    Mary Sheargold
    Member