Foong (Migration)

[2023] AATA 2573

Foong (Migration) [2023] AATA 2573 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr King Chang Foong

REPRESENTATIVE:  Ms Simrat Roopra

CASE NUMBER:  2005765

HOME AFFAIRS REFERENCE(S):          BCC2020/409751

MEMBER:Alan McMurran

DATE:17 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 17 July 2023 at 11:59am

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points-based visa – occupation of Early Childhood (Pre-Kindergarten) Teacher – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350, 359, 360, 362
Migration Regulations 1994, Schedule 2, cl 189.224; Schedule 6D; rr 1.15, 2.26

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 22 March 2020 for review of a decision made by a delegate of the Minister for Home Affairs on 4 March 2020 to refuse to grant the applicant an Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. 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. The applicant, Mr King Chang Foong, a citizen of Malaysia, was invited to apply for the visa on 11 February 2020 and applied for the visa on 12 February 2020. 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).

3. The applicant was seeking the visa to work in the invited occupation of Early Childhood (Pre-Kindergarten)Teacher (ANZSCO 241111). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.224, as the applicant reached a score of 40 points against an invitation score of 105 points.

4. The applicant was represented in relation to the review by a lawyer.

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

   Background -  Tribunal process

6. The applicant arrived in Australia on 9 December 2017 on a student visa granted on 9 November 2017. The applicant has not left the country since arrival, is currently on a Bridging visa and is residing at an address in Melbourne according to the Tribunal’s latest records.

7. On 9 March 2023 the case was constituted to a Tribunal Member for decision.

8. On 20 March 2023, the Tribunal invited the applicant to a video hearing on 26 June 2023 for 2.5 hours. The invitation requests all written submissions in accordance with the Tribunal’s Practice Direction be provided at least 1 week before the hearing date.

9. On 23 March 2023, the applicant responded by email to provide details for correctly recording his name. The Tribunal acknowledged his submission and a Tribunal officer spoke to him by phone on the same day confirming receipt of his response. The applicant otherwise did not respond to the Tribunal’s hearing invitation.

10. On 5 June 2023, on reviewing the file, the Tribunal sent the applicant an invitation under s359(2) to provide information. The letter sets out details of what was required under Schedule 6D of the Regulations. The applicant was advised that if the information was not received by the due date, 19 June 2023, and no time extension was sought or granted, then the applicant would lose the right to appear at the hearing and to give evidence and present arguments.

11. The applicant did not respond to the invitation and on 20 June 2023, the Tribunal sent an email advising that the hearing had been cancelled for want of his reply within the period provided for the giving of the information, which had passed.

12. On 27 June 2023, the Tribunal received an email from a lawyer representative who had “just been retained” to act. The lawyer asked for 28 days to seek instructions and to provide submissions and provided relevant new contact details which were recorded.

    No hearing

13. On 28 June 2023, the Tribunal agreed to an extension until 13 July 2023, for the applicant to make written submissions and to provide information. The hearing however remained cancelled and the applicant was informed that a decision would be made at any time after the extended date. The Tribunal further agreed to provide the lawyer with the documents requested pursuant to s 362A of the Act and which were copied and provided on the same day.

14. On 13 July 2023, the applicant’s representative emailed a written submission, referred to below[1]. The submission stated that the applicant had been “misadvised” and “does not have the score stated in the invitation”.  No further documentation or submissions were produced.

    [1] Paragraph 23

15. On 14 July 2023, a Tribunal officer telephoned the representative to inquire how the applicant wished to proceed. The lawyer responded by email the same day and submitted that the applicant “does not wish to withdraw his application, and that he consents to a decision being made on the papers”.

16. Section 360(2)(b) provides that the Tribunal does not need to proceed with a hearing where an applicant consents to the Tribunal deciding the review without the applicant appearing before it. Furthermore, where the applicant had not complied with the earlier s359(2) request to provide information, the hearing remained cancelled and the Tribunal has proceeded accordingly.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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’.

18. 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).

19. 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).

20. 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).

21. The relevant instrument for this purpose is Legislative Instrument IMMI 18/051. In the present case, the applicant nominated the occupation of 241111 Early Childhood (Pre-Kindergarten)Teachers.

22. The Department information concluded the applicant’s score summary as follows:

    a.Qualification Primary Applicant Age 30

    b.English language 0

    c.Overseas employment experience 0

    d.Australian employment experience 0

    e.Aggregating points for employment experience 0

    f.Australian professional year 0

    g.Educational 0

    h.Specialist education qualification 0

    i.Australian study 0

    j.Credentialed community language 0

    k.Study in designated regional area 0

    l.Partner 10

    m.State or territory nomination – n/r

    n.Designated regional area nomination or sponsorship – n/r

    o.TOTAL 40

23. On 13 July 2023,the applicant submitted to the Tribunal a statement from his solicitor as follows:

    “Dear Presiding Member, RE: Case number: 2005765 (Mr King Chang Foong, DOB 9/2/1990) – Further Submissions

    We have been instructed by our client, Mr Foong, that he does not consider that he meets the criteria for the grant of a Skilled Independent (Permanent) (class SI) Skilled – Independent (Points-Tested) (subclass 189) visa (‘189 Visa’). He instructs that he is aware that he does not have the score stated in his invitation (105) as required by clause 189.224 of Schedule 2 to the Migration Regulations 1994.

    Our client instructs that his former representative advised him to lodge an application for a 189 Visa and, if refused, to appeal the refusal to the Tribunal. It appears that our client has been misadvised. As such, we have been instructed that our client has no further supporting documentation to provide for the Tribunal’s consideration in this matter.”

24. The Tribunal has had regard to the Department file[2] and the information it contains and the Department’s above concluded score summary, noting nothing additional other than the solicitor’s statement has been submitted for consideration. The Tribunal has proceeded below on the available information.

    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

    [2] BCC2020409751

25. 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.

26. At the time of invitation to apply for the visa on 11 February 2020, the applicant was aged 30 years .Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

27. 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.

28. The applicant did not provide with the application any evidence of having completed a relevant and applicable English language test.

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

    Part 6D.3 – Overseas employment experience qualifications

30. 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.

31. The applicant makes no claims under this Part.

32. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this Part.

    Part 6D.4 – Australian employment qualifications

33. 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.

34. The applicant makes no claims under this Part.

35. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

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

36. 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.

37. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is nil, as no points can be awarded under either provision.

38. As there are no points awarded under Part 6D.3 or 6D.4, the applicant is entitled to no points for aggregation under this part 6D.5

    Part 6D.6 – Australian professional year qualifications

39. 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.

40. The applicant makes no claims under this Part.

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

    Part 6D.7 – Educational qualifications

42. 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.

43. The applicant has submitted no supporting documentation to demonstrate that he has obtained any claimed educational qualifications. Without evidence of any educational qualifications obtained, the applicant is unable to demonstrate that he has the necessary qualifications for points’ assessment under this Part.

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

    Part 6D.7A – Specialist educational qualifications

45. 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).

46. 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.

47. The applicant makes no claims under this Part.

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

    Part 6D.8 – Australian study qualifications

49. 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.

50. 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.

51. The applicant has not submitted any evidence of having studied at an Australian educational institution completing a registered course or courses, for which all instruction was in English, and while holding a relevant visa authorising study, completed in a total of at least 16 calendar months and as a result of a total of at least 2 academic years study.

52. 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

53. 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.

54. The applicant makes no claims under this Part.

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

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

56. 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.

57. The applicant has provided no supporting information of any attempted study at any regional location and made no claims under this Part.

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

    Part 6D.11 – Partner qualifications

59. 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.

60. 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.

61. 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.

62. The applicant claims not to have a partner of any description. In the absence of any recorded relationship and accepting as submitted in the application, as did the Department, that the applicant does not have a partner, the applicant is entitled to 10 points under this part.

    Part 6D.12 – State or Territory nomination qualifications

63. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa.

64. 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

65. 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.

66. 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

67. 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  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  10 points

    6D.12 - State or Territory nomination  0 points

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

    Total points  40 points

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

    Has the applicant achieved the qualifying score applying the law in force at time of Tribunal’s assessment?

69. At the time of the delegate’s assessment the pass mark was 65 points[3]. The applicant has therefore not achieved the qualifying score to pass the points test.

    [3] Legislative Instrument IMMI 18/067.

    Has the applicant achieved the score stated in the invitation to apply for the visa?

70. 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 105 points.

1. On the basis of the points assessment above, the Tribunal finds that the applicant has also not achieved the score stated in the invitation to apply for the visa.

   Conclusion

2. For the above reasons, the applicant is entitled to a maximum of 40 points under the points test.

3. As the applicant’s score is less than both the qualifying score and the invitation 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

4. The Tribunal affirms the decision not to grant the applicant a Subclass 189 Skilled Independent (Permanent) visa.

   Alan McMurran
   Member