Dong (Migration)

Dong (Migration) [2017] AATA 1890 (25 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lisha Dong
CASE NUMBER:  1707564
DIBP REFERENCE(S):  BCC2011/477688
MEMBER:Denise Connolly
DATE:25 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 25 September 2017 at 9:35am
CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 885 (Skilled - Independent) – Visa qualifying score – Score assessed under Schedules 6B and 6C – Nominated occupation Cook – Legislative Instrument IMMI 12/068
LEGISLATION
Migration Act 1958, ss 65, 92, 93, 94, 95, 96, 350
Migration Regulation 1994, r 1.15C, r 1.15D, r 1.15EA, r 1.15I, r 2.26AA, r 2.26AB, Schedule 2, cl 885.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 October 2011. The relevant subclass in this case is Subclass 885 (Skilled - Independent). The criteria to be met for the grant of a Subclass 885 visa are set out in Part 885 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on 17 December 2014 on the basis that the visa applicant did not satisfy cl.885.221 of Schedule 2 to the Regulations because she did not achieve the qualifying score in accordance with Schedule 6B or 6C.
On 18 July 2016, the Tribunal (differently constituted) affirmed the Department’s decision not to grant the applicant a Skilled (Residence) (Class VB) visa. The applicant sought judicial review of that decision and on 6 April 2017 the matter was remitted by the Federal Circuit Court of Australia by consent.
The applicant appeared before this Tribunal on 29 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent who also attended the hearing.
The hearing was conducted by video conference. During the hearing the representative indicated that there was a problem with the sound at the applicant’s site. The Tribunal adjourned the hearing so that the problem could be addressed. Once reconvened the applicant indicated that she could hear the Tribunal.
The applicant asked the Tribunal to take evidence from a solicitor, Ms Necia Wearne, who acted for her in the Federal Circuit Court proceedings. The Tribunal asked the applicant why she wanted the Tribunal to hear Ms Wearne’s evidence. The applicant indicated that during those proceedings there was something that was argued and there might be some evidence Ms Wearne can give. The Tribunal, taking a fresh look at this case, indicated that in having regard to this request, it was still not clear why the applicant wanted the Tribunal to take Ms Wearne’s evidence. The applicant was unable to expand on her request. She consulted her migration agent and ultimately the applicant decided it was not necessary for the Tribunal to hear from Ms Wearne and the Tribunal did not take her evidence.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies cl.885.221 which requires that the applicant has the ‘qualifying score’ when assessed under Subdivision B of Division 3 of Part 2 of the Act (ss.92 to 96). That subdivision provides for a ‘points’ system under which an applicant is given the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. The qualifications and points applicable to this case are prescribed in Schedule 6B to the Regulations (r.2.26AA). The 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 6B, 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).
In addition, persons who apply for a points tested General Skilled Migration visa on or after 1 July 2011 but before 1 January 2013 who are in a specified class of persons and whose assessed score under Schedule 6B is less than the applicable pass mark at the time of assessment, may also be assessed against the prescribed qualifications in Schedule 6C to the Regulations: r. 2.26AB(2).
Some elements of the points test relate to the skilled occupation that the applicant nominated in the visa application. An occupation is a ‘skilled occupation’ if: it is specified by the Minister in an instrument in writing 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 12/068. In the present case, the applicant nominated the occupation of Cook.
Does the applicant have the qualifying score applying the law in force at the time of the delegate’s decision?
Part 6B.1 – Occupational Qualifications
Points are available under this Part if the applicant has a suitable skills assessment for her nominated skilled occupation for which 40, 50 or 60 points are available. The applicant nominated the occupation of Cook. The applicant has a skills assessment undertaken by Trades Recognition Australia (TRA), a relevant assessing authority dated 9 September 2008, on the Department’s file, stating that her application for assessment of her skills in the occupation Cook was successful. Accordingly the applicant is entitled to 60 points under this part.
Part 6B.2 – Age Qualifications
Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application. The applicant’s date of birth is 3 November 1984. The Tribunal finds the applicant was aged more than 18 years and under 30 years at the time of application. She is therefore entitled to 30 points under this part.
Part 6B.3 – English Language Qualifications
Points are available under this Part on the basis of the applicant’s level of English language proficiency. The applicant provided to the Department an IELTS test report form dated 4 December 2010; recording that she scored 6.5 for listening, 6.5 for reading, 6 for writing, 6.5 for speaking with an overall score of 6.5. The Tribunal finds that the applicant has competent English as defined in r.1.15C. There is no evidence to indicate she has proficient English as defined in r.1.15D. She is therefore entitled to 15 points under this part.
Part 6B.4 – Specific Employment Qualifications
Points are available under this Part if the applicant was employed in a skilled occupation, or if the nominated skilled occupation was one for which 60 points are available, in that occupation or a closely related skilled occupation, for at least 36 months in the 48 months immediately before the visa application was made.
When making the visa application, in response to questions about her past employment, the applicant stated that she worked at ‘Water sider Oriental Bistro’ from 1 June 2010 to 19 September 2011. She did not provide particulars for any other employment in the visa application. The applicant has not claimed that she employed in her nominated occupation or a closely related skilled occupation, for at least 36 months in the 48 months immediately before the visa application was made. Therefore, the applicant is entitled to no points under this part.
Part 6B.5 – Australian Employment Qualifications
Points are available under this Part if the applicant has been employed, or 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 total of 12 months in the 48 months immediately preceding the visa application date.
There is no evidence to indicate the applicant completed a professional year.
As indicated above the applicant has claimed in her visa application that she worked at ‘Water sider Oriental Bistro’ from 1 June 2010 to 19 September 2011 as a Cook, and described various cooking duties. The applicant has not made claims to have been employed in a closely related skilled occupation. She did not seek to rely on any other employment.
On 2 November 2013 the delegate sought further information from the applicant, including evidence of her Australian employment such as work references, payslips, superannuation statements, bank statements showing payment of wages, ATO assessments and group certificates. In response the applicant provided several hand written payslips recording income of $300 per week for 20 hours at $15 per hour. Some are hand written on blank paper; others have a Waterside Oriental Bistro letterhead. Every payslip is for the same number of hours and amount, except the payslip for 27/6/11 to 30/16/11 which is for 11 hours. Payslips for some weeks, for example 27/9/10 and 4/10/10, are repeated but are not identical. There are two payslips only a day apart, 30/8/10 to 5/9/10 and 31/8/10 to 6/9/10, both claiming the applicant worked 20 hours in the period.
Having considered this material the delegate was not satisfied the applicant had demonstrated that she had worked as a Cook at Waterside Oriental Bistro in the period claimed. The delegate awarded no points for Australian employment qualifications.
The applicant provided to the Tribunal a copy of a letter from Xinxin Tony Huang, Origin Tax & Accounting, stating the applicant had her individual tax returns lodged by Origin Tax from 1 July 2010 to 30 June 2011, which showed income from Waterside Oriental Bistro, owned by Twin Harmony Pty Ltd. Her income was $15,600 and tax paid was $728. It is claimed she worked as a chef. She also provided a PAYG payment summary for the financial year ending 30 June 2011 indicating she worked for ‘The Twin Harmony Pty Ltd’ from 1 July 2010 to 30 June 2011.
On 15 July 2016 the applicant provided to the Tribunal Notices of Assessment for the 2011 and 2012 financial years, and a Notice of Amended Assessment for the 2011 financial year, adjusted as a result of audit or investigation in August 2012. The applicant declared incomes from two sources, an annual income of $27,315 and the other for $15,600.
In its decision on 18 July 2016 the Tribunal (differently constituted) recorded that the issue of Australian employment experience was discussed with the applicant and the applicant indicated that on occasions she worked more than 20 hours at Waterside Oriental Bistro. It is recorded in the decision record that concerns were raised regarding the reliability of the payslips and the applicant indicated, if she worked more than 20 hours it was only for one or two hours. She indicated she did three five-hour shifts per week and her days varied. The Tribunal noted that amounted to only 15 hours. The applicant then stated she did the night shift, from 5pm to 10pm and said the number of days she worked depended on how busy the bistro was and she normally worked four days per week. It is recorded that the applicant also said she worked at Melbourne Crown Casino in events management from March 2010 to November 2011 for between 20 to 30 hours a week. The differently constituted Tribunal noted the applicant had not provided a letter from Waterside confirming her employment. The applicant indicated she had been unable to contact the restaurant owner. The Tribunal noted that while the applicant had provided documents claiming that she declared two sources of income, the differently constituted Tribunal was not satisfied this was evidence that the applicant had worked at Waterside 20 hours a week, for 12 months, as claimed.
This Tribunal discussed with the applicant her claims to have worked at Waterside as a Cook. It raised the concern that so far her evidence may not be persuasive. The Tribunal indicated to the applicant that it may not be satisfied the payslips are reliable evidence that she worked at Waterside as a Cook as claimed. It noted, for example, that the payslips appeared to have been written at the same time. The Tribunal invited the applicant to give her evidence as to why it should be satisfied that she worked at Waterside as a Cook in the period claimed.
The applicant indicated she came to Australia in 2004 to study for a Bachelor of Economics and Finance at RMIT. She finished that degree and started a Master of Accounting which she did not finish because it was too hard. So she studied for a Diploma in cooking at Meridian International Hotel School in the period 2007 to 2009. She was awarded a Diploma of Hospitality Management. While she studied at Meridian she worked on a small river cruise ship restaurant, both in the kitchen and on the floor, one or two nights a week. She used her river cruise ship experience for her TRA assessment. After that she started working at Atlantic Group, a function venue at Docklands as a waitress.
The applicant stopped working at Atlantic in 2010 because she had to do her one year work experience for the visa application. She started working at Waterside Bistro at Docklands. She answered an ad on a Chinese website. At first she could not remember the name of the owner. She then said his surname was Chen. She claims there were four people working in the kitchen, a head chef, a sous chef and two cooks. The Tribunal asked about her supervisor’s name. She could not remember. The Tribunal asked about her daily and hourly work patterns and her duties. She indicated that she worked in the daytime when it was not busy. Everyone worked at preparation for the restaurant. The Tribunal asked about the meals prepared. She indicated at lunchtime she helped the chef with stir fry. She claimed for dishes that took longer, such as braised dishes, portions were stored in the freezer and taken as required. The Tribunal asked about her other duties. She indicated she cut vegetables and marinated meat. The Tribunal asked about Mr Chen’s role. She indicated that when it was busy everyone was stressed and Mr Chen wanted everyone to focus. She indicated that she worked three or four days a week for a minimum of 20 hours and her hours varied. She claimed that if she worked more than 20 hours she got Mr Chen to pay her more. The Tribunal asked about the days she worked. She claimed she sometimes worked on weekends, and thought maybe she worked on public holidays. Her days varied depending on how busy it was.
The Tribunal raised the concern that her payslips do not reflect her oral evidence that she worked different hours each week and was paid accordingly. It explained to the applicant that it may give her payslips no weight as they are not consistent with her evidence about her work patterns. The applicant indicated that if she worked 22 hours in one week, she would work 18 hours the next week. The Tribunal noted that this merely demonstrated that the payslips are not a genuine reflection of the work she now claims to have done and this may cast doubt on her evidence. The applicant claimed that if she worked one or two hours more than 20 hours she did not really mind.
The Tribunal asked the applicant how she knew Mr Chen. She claimed that she found him on a website. She indicated he helps students get their work experience. The Tribunal noted it had not seen a written reference from Mr Chen. She indicated she was not able to find him. The Tribunal asked about the arrangements for her receipt of wages. She indicated that she was paid in cash at the counter by Mr Chen. He gave her the same amount every week, $300 and he withheld the tax. The Tribunal asked about the preparation of the payslips. She indicated they came from a printer. The Tribunal noted many of the payslips are handwritten on plain paper. The Tribunal asked the applicant when she commenced her employment with Mr Chen. At first she said it was on 1 June 2010 but then indicated she might have started there in 2009. She indicated she ceased the employment in September 2011. The Tribunal asked if Mr Chen paid penalty rates for weekends or public holidays as this was not reflected in the payslips. The applicant indicated she was not sure but she did not demand anything from him because she needed his help to get her work experience for the visa.
The Tribunal asked the applicant why she worked only 20 hours per week for Mr Chen. She indicated she also worked at Crown Casino in events management. Her hours there varied from 10 to 25 hours per week depending on demand.
The Tribunal raised its concern that there appeared to be very little evidence regarding her claims to have worked at Waterside as a Cook. It noted that while it had seen payslips and the PAYG payment summary those documents could be prepared regardless of whether the applicant actually did the work. It noted the applicant has indicated she worked at Waterside from June 2010 to September 2011, that is, in the 2010, 2011 and 2012 financial years. It asked the applicant if she had her ATO Notices of Assessment for all of those financial years. The applicant indicated she would try to obtain further evidence demonstrating her employment at Waterside as a Cook. She explained however that she has not been able to find Mr Chen. The Tribunal agreed to wait until close of business 6 September 2017 for further evidence.
On 6 September 2017 the applicant provided additional documents, a report from ATO’s tax agent portal for the pre-filling report 2009 indicating the applicant earned income from Alumbra, Atlantic Group, VIP Personnel, Spotless Services and River Restaurant Cruises. The representative sought further time to provide more evidence. The Tribunal agreed to wait until 15 September 2017 before making its decision.
On 11 September 2017 the applicant provided to the Tribunal a receipt from LYI Financial and Taxation Services for $120. That service had provided to her reports from ATO’s tax agent portal for the pre-filling report 2012 indicating the applicant was paid wages by The Lobby Pty Ltd and Crown Ltd. The report does not indicate she worked at Waterside Oriental Bistro in that financial year. The applicant also provided a pre-filling report 2011 indicating the applicant was paid wages by Crown Ltd, Atlantic Group and The Twin Harmony Pty Ltd (Waterside Oriental Bistro). The applicant also provided a pre-filling report 2010 indicating the applicant was paid wages by Alumbra, Crown Ltd, Atlantic Group, Michael O’Brien Catering Pty Ltd and River Restaurant Cruises. The report does not indicate she worked at Waterside Oriental Bistro in that financial year.
The Tribunal has considered all of the documentary and oral evidence regarding the applicant’s claim that she worked as a Cook at Waterside Oriental Bistro for at least 12 months before making the visa application. It has considered the tax related information indicating that, for the 2011 financial year she lodged a PAYG payment summary indicating she earned $15,600 from employment with The Twin Harmony Pty Ltd. While this indicates she may have been employed by the business the Tribunal is not satisfied this evidence overcomes the concerns regarding the payslips she has provided to the Department. While the Tribunal does not have experience in forensic document examination the payslips appear to have all been prepared at the same time. Also the Tribunal is concerned that the applicant has provided, for some weeks, for example 27/9/10 and 4/10/10, two payslips which are not identical for the same weeks. Also she has provided a payslip for 30/8/10 for a week and another for 31/8/10 for a week both claiming she worked 20 hours in that week and was paid $300. These issues raise concerns about the reliability of the payslips and suggest they have been prepared for the visa application, rather than as reliable contemporaneous documentation. None of the payslips indicates tax has been withheld. The Tribunal is particularly concerned that the payslips indicate the applicant, except for the last week of June 2011, always worked the same number of hours. This is not consistent with her oral evidence regarding her work patterns. The Tribunal has taken into account her explanation for this, that some weeks she worked 22 hours and the she would work 18 hours and that if she worked more hours she did not mind, however it formed the view this evidence may have been manufactured to overcome the problems arising from the inconsistencies. Even if this was the case, it shows the payslips are unreliable. Overall the Tribunal is not satisfied the payslips are reliable contemporaneous evidence.

The Tribunal also has concerns that the applicant did not remember the name of the person who supervised her in the kitchen. While it accepts she claims to have worked in the kitchen several years ago, it is of the view it would be reasonable for her to remember the person’s name if he/she supervised her, in a relatively small kitchen, for 12 months. The Tribunal has taken into account the oral description she gave of her duties but finds it to be scant and lacking in detail compared to the detail described in the visa application.
The Tribunal also notes the applicant indicated, in her visa application and in her oral evidence, that she worked at Waterside up until September 2011. However her evidence from the ATO tax agent portal does not reflect this. It indicates in the 2012 financial year the applicant claimed to have worked only at The Lobby Pty Ltd and Crown Ltd.
The Tribunal has taken into account the applicant’s claim that she has not been able to find Mr Chen. However, considering all of the evidence regarding her claim to have worked as a Cook for 12 months, while the Tribunal accepts the applicant may have worked at Waterside Oriental Bistro in some capacity, it is not satisfied she worked there in the nominated occupation or a closely related skilled occupation for a period totalling at least 12 months in the 48 months immediately preceding the visa application date.
The applicant indicated that she relied on her river cruise ship experience for her TRA assessment. However she told the Tribunal that employment was both in the kitchen and on the floor, and only one or two nights a week. She did not indicate to the Tribunal that she is seeking to rely on that employment for the purposes of Part 6B.5.
As the Tribunal is not satisfied the applicant has demonstrated that she was employed in the nominated occupation or a closely related occupation for a period totalling at least 12 months in the 48 months before making the visa application, the applicant is entitled to no points under this part.
Part 6B.6 – Australian Educational Qualifications
Points may be awarded under this Part if the applicant has undertaken certain study in Australia.
The applicant has provided evidence that she completed a Certificate III in Hospitality in the period 23 July 2007 to 29 June 2008, and a Diploma of Hospitality Management in the period 23 July 2007 to 8 February 2009 at Meridian International Hotel School, Melbourne campus.
The applicant has not claimed to have completed an Australian doctorate, or an Australian masters or honours degree and a closely related undergraduate degree by an Australian institution.
The Tribunal has considered the documentary evidence provided by the applicant regarding her study in Australia. It has also considered her movement records. On the evidence before it, the Tribunal is satisfied that the applicant has completed a diploma for award by an Australian educational institution, as a result of registered courses, and that she completed the courses in a total of at least 16 calendar months, that they were completed as a result of at least two academic years’ study, for which all instructions were in English while the holder of a student visa. She therefore met the Australian study requirement. Accordingly, the applicant is entitled to 5 points under this part.
Part 6B.7 – Occupation in Demand Qualifications
Points may be awarded under this Part if the applicant has nominated a migration occupation in demand (as specified in an instrument), and has been employed in that occupation or a closely related skilled occupation for at least 12 of the 48 months immediately preceding the visa application date. Additional points are available if the applicant has an offer of full time employment in certain organisations.
The nominated occupation is Cook. Having regard to the relevant instrument, IMMI 11/033, the Tribunal is satisfied this is a migration occupation in demand. However as the Tribunal is not satisfied the applicant was employed in that or a closely related skilled occupation for the relevant period, the applicant is entitled to no points under this part.
Part 6B.8 – Designated Language Qualifications
Points may be awarded under this Part if the applicant is the holder of a qualification that is equivalent to a degree awarded by an Australian tertiary institution where the tuition was conducted in a designated language, or the applicant is accredited as a professional interpreter or level 3 translator in a designated language. Designated languages are specified by the Minister.
The applicant has not made any claims to have a degree or equivalent qualification, the tuition for which was conducted in a designated language; or to be a NAATI accredited professional interpreter or translator. Therefore, the applicant is entitled to no points under this part.
Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications
Points may be awarded under this part if the applicant meets the 2 year study requirement / Australian study requirement (as applicable), 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 has not made any claims to have studied in regional Australia or a low-population growth metropolitan area. Therefore, the applicant is entitled to no points under this part.
Part 6B.10 – Partner Skill Qualifications
Points may be awarded under this Part if the applicant has a spouse or partner who is also an applicant for certain skilled visas, is under 45 years of age and who has certain skills and qualifications.
The applicant has made no claims to have a spouse or partner who is also an applicant for a certain skilled visa. Therefore, the applicant is entitled to no points under this part.
Part 6B.11 – State or Territory Nomination Qualifications
Points may be awarded under this Part for applicants for a Subclass 176, 475, 487 or 886 visa who have been nominated by a State or Territory government and the Minister has accepted the nomination.
The applicant has made no claims to have applied for any of the relevant visa subclasses. There is no evidence to suggest she has been nominated by a State or Territory government agency. Therefore, the applicant is entitled to no points under this part.
Part 6B.12 – Designated Area Sponsorship Qualifications
Points may be awarded under this Part for Subclass 475 and 487 visa applicants who have been sponsored by a relative and the Minister has accepted the sponsorship.
The applicant has not applied for a Subclass 475 or 487 visa. Therefore, the applicant is entitled to no points under this part.
Conclusion on points
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 6B is:
Occupational qualifications  60 points
Age qualifications  30 points
English language qualifications  15 points
Specific employment qualifications  0 points
Australian employment qualifications  0 points
Australian educational qualifications  5 poiints
Occupation in demand qualifications  0 points
Designated language qualifications  0 points
Study in regional Australia or a low-population
growth metropolitan area qualifications                   0 points
Partner skill qualifications  0 points
State or Territory nomination qualifications              0 points
Designated area sponsorship qualifications            0 points
Total points  110 points
At the time of the delegate’s assessment and the time of the Tribunal’s assessment the pass mark was 120 points. The applicant has therefore not achieved the qualifying score to pass the points test under Schedule 6B.
Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?
As indicated above, under r.2.26AB, persons who apply for a points tested General Skilled Migration visa on or after 1 July 2011 but before 1 January 2013 who are in a specified class of persons and whose assessed score under Schedule 6B is less than the applicable pass mark at the time of assessment, may also be assessed against the prescribed qualifications in Schedule 6C to the Regulations.
The delegate has recorded that the applied for a Subclass 485 (Skilled Graduate) visa on or before 8 February 2010 and that application had not been finally determined before 8 February 2010 and on or after 1 July 2010 but before 1 July 2012 she applied for the Subclass 885 visa (See IMMI 12/068, paragraph 3(b)). She is therefore in the specified class. Accordingly the Tribunal will assess the applicant’s score against the prescribed qualifications in Schedule 6C.
Part 6C.1 - Age Qualifications
The applicant’s date of birth is 3 November 1984. She was aged 26 years at the time of application. She was therefore not less than 25 years and under 33 years at the time of application. The applicant is entitled to 30 points under Part 6C.1.
Part 6C.2 - English Language Qualifications
The applicant provided IELTS test results dated 4 December 2010 recording that she scored 6.5 for listening, 6.5 for reading, 6 for writing, 6.5 for speaking with an overall score of 6.5. The Tribunal has found that the applicant has competent English as defined in r.1.15C.
There is no evidence before the Tribunal to indicate the applicant has superior English as defined in r.1.15EA or proficient English as defined in r.1.15D. Therefore the applicant is entitled to no points under Part 6C.2.
Part 6C.3 - Overseas Employment Experience Qualifications
The applicant has not made any claims or provided evidence of having eligible overseas employment. Therefore the applicant is entitled to no points under Part 6C.3.
Part 6C.4 - Australian Employment Experience Qualifications
Points under this part are awarded according to an assessment of the applicant’s nominated occupation and Australian employment experience.
As discussed above the applicant has claimed to have been employed in Australia in her nominated skilled occupation for a period totalling at least 12 months in the 10 years before making the visa application. She has not made claims to have been employed in a closely related skilled occupation. For the reasons given above, the Tribunal is not satisfied that the applicant has been employed in Australia in her nominated skilled occupation or a closely related skilled occupation, for a period totalling at least 12 months in the 10 years immediately before the day on which the application was made. Accordingly, the Tribunal finds that the applicant is entitled to no points under Part 6C.4.
Part 6C.5 - Aggregating points for Employment Experience Qualifications
The award of points under this Part is determined by aggregating points for the applicant’s overseas employment experience and Australian employment experience. The prescribed number of points for the combination of qualifications is 20. The Tribunal has awarded no points for those parts. Accordingly, the applicant is entitled to no points under Part 6C.5.
Part 6C.6 - Australian Professional Year Qualifications
The applicant has not made any claims to have completed a professional year in Australia. Accordingly, the Tribunal finds that the applicant is entitled to no points under Part 6C.6.
Part 6C.7 - Educational Qualifications
For the reasons given above the Tribunal is satisfied that the applicant has met the requirements for the award of a Diploma of Hospitality Management by an Australian educational institution.
The applicant claimed at the hearing that she had completed a bachelor degree in Australia. The Tribunal asked at the end of the hearing that she provide further evidence to substantiate that claim. After providing some evidence on 6 September 2017 the Tribunal agreed to wait until 15 September 2017 for further evidence. The applicant has not provided documentary evidence that she has been awarded a bachelor degree by an Australian educational institution, or any other educational institution of a recognised standard. On the evidence before it, the Tribunal is not satisfied the applicant has been awarded at least a bachelor degree by an Australian educational institution, or any other educational institution of a recognised standard. Therefore the applicant is entitled to 10 points on under Part 6C.8.
Part 6C.8 - Australian Study Qualifications
The applicant has nominated the skilled occupation Cook. The Tribunal is satisfied she has completed a Diploma of Hospitality Management awarded by an Australian educational institution and that she used the diploma to meet the Australian study requirement. Having regard to the transcript for that course the Tribunal is satisfied the diploma is closely related to her nominated skilled occupation. Therefore the applicant is entitled to 5 points under Part 6C.8.
Part 6C.9 - Credentialed Community Language Qualifications
The applicant has not made claims or provided evidence of having a qualification in a particular language, awarded or accredited by a body specified by the Minister. Therefore the applicant is entitled to no points under Part 6C.9.
Part 6C.10 - Study in Regional / Low Population Growth Areas Qualifications
The applicant has not made any claims to have studied in a regional or low growth area. Therefore the applicant is entitled to no points under Part 6C.10.
Part 6C.11 - Partner Skill Qualifications
The applicant has not made any claims to have a partner. Accordingly the applicant is entitled to no points under Part 6C.11.
Part 6C.12 - State or Territory Nomination Qualifications
The applicant has not made an application for a Subclass 176 visa and has not claimed to be entitled to a Subclass 886 visa. There is no evidence to suggest she is the subject of an approved nomination by a State or Territory government agency. Accordingly, the applicant is entitled to no points under Part 6C.12.
Part 6C.13 - Designated Area Sponsorship Qualifications
The application is not based on an approved State or Territory government or family member nomination. Accordingly the applicant is entitled to no points under Part 6C.13.
Conclusion on Points
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 6C is:
Part 6C.1 - Age  30 points
Part 6C.2 - English language  0 points
Part 6C.3 - Overseas employment experience     0 points
Part 6C.4 - Australian employment experience     0 points
Part 6C.5 - Aggregated employment  0 points
Part 6C.6 - Australian professional year                0 points
Part 6C.7 - Educational  10 points
Part 6C.8 - Australian study  5 points
Part 6C.9 - Credentialed community language     0 points
Part 6C.10 - Study in regional/low population areas 0 points
Part 6C.11 - Partner skill  0 points
Part 6C.12 - State or Territory nomination             0 points
Part 6C.13 - Designated area sponsorship           0 points
Total Points  45 points
For the above reasons, the applicant is entitled to a maximum of 45 points under the points test when assessed under Schedule 6C. At the time of the delegate’s assessment, and the time of the Tribunal’s assessment, the pass mark is 65 points. The applicant has therefore not achieved the qualifying score to pass the points test.
The applicant has failed to achieve the qualifying scores required to pass the points test, under Schedules 6B and 6C, and therefore does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.
Denise Connolly
Member

[2017] AATA 1890

25 September 2017

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Immigration

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