Goebel (Migration)

[2017] AATA 2856

Goebel (Migration) [2017] AATA 2856 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Philip Goebel

CASE NUMBER:  1607193

DIBP REFERENCE(S):  BCC2016/938518

MEMBER:Alison Mercer

DATE:19 December 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 19 December 2017 at 1:39pm

CATCHWORDS
Migration – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – Not achieved qualifying score

LEGISLATION
Migration Act 1958, ss 65, 93. 94, 96, 350
Migration Regulations 1994, rr 1.15C, 1.15D, 1.15EA, 1.15F, 1.15I, 2.26AC, Schedule 2, cl 189.214, Schedule 6D

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 13 May 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 22 January 2016 and applied for the visa on 7 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. The delegate assessed the applicant’s points as follows, noting that the current pass mark was 60 points:

• Age: 30

• English language proficiency: 0 (the delegate noted that as the applicant held a Canadian passport, he met the definition of ‘competent English’ in r.1.15B, but had to have been assessed as having either ‘proficient’ or ‘superior’ English, which required him to have sat a specified test and obtained specified scores before he was invited to apply for the visa);

• Overseas employment: 0

• Australian employment: 5

• Aggregated employment experience: 0

• Australian professional year qualification: 0

• Educational qualifications: 15

• Australian study requirement: 5

• Credentialled community language: 0

• Partner’s skills, qualifications, age: 0

• State or Territory nomination: 0

• Designated area sponsorship: 0

• TOTAL: 55 points

1. The Tribunal received a review application from the applicant on 20 May 2016.  It was accompanied by a copy of the delegate’s decision.

2. The applicant subsequently provided the Tribunal with a copy of an International English Language Testing System (IELTS) test report form indicating that he obtained the specified scores to meet the definition of ‘proficient English’ in a test he undertook on 28 May 2016. He argued that this should entitle him to a further 10 points for the English language proficiency component of the Schedule 6D points test.

3. On 1 August 2017, the Tribunal wrote to the applicant to invite him to attend a hearing on 24 August 2017.

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

5. The applicant told the Tribunal that he had been in Australia for close to 5 years and had done his Doctor of Physiotherapy degree here.  He was involved in the community through his membership of several sports clubs and committees, and currently worked in health care management for Paxton Partners, where he had been employed for about 12 months. Prior to that, he was involved in research when the company he established in Australia received funding from Johnson & Johnson to develop medical devices.

6. The applicant confirmed that he was not in fulltime employment in his home country of Canada prior to coming to Australia, as he was undertaking tertiary studies there before coming to Australia to undertake his Doctor of Physiotherapy. The applicant said that he had family in Australia, as his mother’s side of the family is Indonesian originally and many of them live in Australia.

7. The Tribunal discussed with the applicant the fact that there was limited capacity to gain additional points in the Schedule 6D points test after the visa application had been lodged, as most parts of the test required that certain things were in place, or had occurred or been undertaken, by the time that the applicant was invited to apply for the visa. Therefore, the Tribunal was unable to take into account the applicant’s IELTS test of 28 May 2016, as this was undertaken after he was invited to lodge the visa application, and after he had lodged the visa application. The applicant confirmed that he simply misread the English proficiency information but understood that he could do an IELTS test showing that he obtained the specified scores for ‘proficient’ or ‘superior’ English after he lodged the application in order to get additional points for his English skills. The applicant said that he did not dispute the delegate’s allocation of points to him for the other parts of the Schedule 6D points test. The Tribunal undertook to review the points allocated to the applicant carefully but noted that the applicant might want to get migration advice about any other visa options, such as sponsorship by his current employers, who wished to retain him.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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’.

2. 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).

3. 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 Physiotherapist.

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

1. 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.

2. At the time of invitation, the applicant was aged 32. Therefore, the Tribunal finds that he is entitled to 30 points under item 6D12 this part.

Part 6D.2 – English language qualifications

1. 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.

2. Specifically, points are available under the following items only:

   ·6D21 – the applicant has superior English as defined in r.1.15EA (20 points)

   ·6D22 – the applicant has proficient English as defined in r.1.15D (10 points)

3. Regulation 1.15EA provides that a person has superior English if:

   (a)  the person undertook a specified language test;

   (b)  the language test was conducted in the 3 years immediately before the day on which the Minister invited the person under the Regulations to apply for the visa; and

   (c)  the person achieved the specified score in the specified test.

4. Regulation 1.15EA provides that a person has superior English if:

   (a) the person undertook a specified language test;

   (b) the language test was conducted in the 3 years immediately before the day on which the Minister invited the person under the Regulations to apply for the visa; and

   (c) the person achieved the specified score in the specified test.

5. IMMI 15/005 sets out the relevant English tests and scores. It includes an IELTS test. For ‘proficient English,’ an applicant must obtain a score of at least 7 in each of the 4 test components.  For ‘superior English,’ an applicant must obtain a score of at least 8 in each of the 4 test components.

6. As discussed with the applicant at the hearing, it was conceded by the applicant that he had not undertaken a specified English test in the 3 years immediately before being invited to apply for the visa on 22 January 2016.  He indicated that he believed that he would be entitled to points under this part as he was Canadian and a native English speaker, had been educated in English there to tertiary level and had completed a masters degree in Australia taught in English, as well as being professionally employed in Australia. While the Tribunal notes that the applicant obtained scores of at least 7 in each of the 4 test components of the IELTS test he undertook on 28 May 2016, and thus achieved the specified scores for ‘proficient English,’ this test cannot be counted as it was not undertaken in the relevant period, but only after he was invited to apply for the visa.

7. The Tribunal further acknowledges that the applicant, as the holder of a Canadian passport, would automatically be classed as having ‘competent English’ as defined in r.1.15C and IMMI 15/005, but finds (as did the delegate) that part 6D.2 does not confer any points for having competent English, only proficient or superior English.

8. The Tribunal appreciates that this is dismaying for the applicant, whose qualifications, nationality, employment and post-visa application IELTS test all indicate that he has a high level of English proficiency and would otherwise be entitled to 10 points under this part, but it is bound to assess this issue according to the wording of the relevant legislation, and this restricts the Tribunal to only being able to take into account a specified test undertaken in the 3 years immediately prior to 22 January 2016.

9. Therefore, the Tribunal must find that the applicant is not entitled to any points under this part.

Part 6D.3 – Overseas employment experience qualifications

1. 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.

2. The applicant did not claim any points under this part, and confirmed this at the hearing.

3. Therefore, subject to consideration of Part 6D.5, the Tribunal finds that the applicant is not entitled to any points under this part.

Part 6D.4 – Australian employment qualifications

1. 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.

2. The applicant claimed to have worked in his nominated occupation for at least 12 (but less than 36) months in Australia in the 10 years before being invited to apply for the visa. The delegate accepted this on the basis of the documentary evidence the applicant provided.

3. Accordingly, the Tribunal is satisfied that the applicant is entitled to 5 points under item 6D41 of this part.

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

1. 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.

2. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 5 points. As this is not more than 20 points, the applicant is not entitled to any points under this part.

Part 6D.6 – Australian professional year qualifications

1. 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.

2. The applicant did not claim to have undertaken a Professional Year in Australia, and provided no evidence of having done so.

3. Accordingly, the Tribunal finds that the applicant is not entitled to any points under this part.

Part 6D.7 – Educational qualifications

1. 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.

2. The Tribunal is satisfied from the evidence provided to the Tribunal and the Department that the applicant completed a Doctor of Physiotherapy at the University of Melbourne between 2011 and 2013.

3. The delegate found that this course was not a PhD but rather, a professional entry Master’s level program, and therefore awarded the applicant 15 points under item 6D72 of this part, for holding at least a bachelor degree conferred by an Australian educational institution. The applicant did not challenge this assessment. The Tribunal has reviewed the website of the University of Melbourne, which confirms that the Doctor of Physiotherapy is a Masters level program, and not a PhD level qualification: >

   Accordingly, the Tribunal finds that the applicant is entitled to 15 points under item 6D72 of this part.

Part 6D.8 – Australian study qualifications

1. 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.

2. The Tribunal is satisfied that the applicant had, at the time of the invitation to apply, met the requirements for the award of at least a bachelor degree by an Australian educational institution (being his Doctor of Physiotherapy masters qualification from the University of Melbourne). The Tribunal is satisfied that this qualification satisfies the Australian study requirement as it was a registered course completed in a total of at least 16 calendar months, as a result of at least 2 academic years of study, and was taught in English. The Tribunal is further satisfied from the Department’s records that the applicant completed this course while holding visas authorising him to study in Australia. 

3. Accordingly, as the Australian study requirement had been met at the time of invitation, the Tribunal finds that the applicant is entitled to 5 points under this part.

4. The Tribunal notes that there is no specific award of points for a masters degree in this part; rather, 20 points are allocated for applicants with an Australian doctorate, or 15 points for a Bachelor degree or higher.

Part 6D.9 – Credentialled community language qualifications

1. 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.

2. The applicant did not claim, and was not allocated, points under this part, and the Tribunal concurs with the delegate that the applicant is not entitled to any points under this part.

Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualifications

1. 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.

2. The applicant did not claim, and was not allocated, points under this part, and the Tribunal concurs with the delegate that the applicant is not entitled to any points under this part.

Part 6D.11 – Partner Skill Qualifications

1. 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.

2. The applicant did not claim, and was not allocated, points under this part, and the Tribunal concurs with the delegate that the applicant is not entitled to any points under this part.

Part 6D.12 – State or Territory nomination qualifications

1. 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 area sponsorship qualifications

1. 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

1. 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  5 points

   6D.5 - Aggregated employment  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  55 points

2. The applicant’s assessed score under the points system is therefore 55 points.

1. At the time of the delegate’s assessment, the pass mark was 60 points: Legislative Instrument IMMI 12/017. 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?

1. As at the time of the Tribunal’s assessment, IMMI 12/017 remains in force and the pass mark remains 60 points.

2. The Tribunal notes that Part 6D7A (Specialist educational qualifications) was added to the Schedule 6D points test with effect from 10 September 2016 by the Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016. It provides that 5 points are available if the applicant met the requirements for the award of a specialist educational qualification at the time that he was invited to apply for the visa. 

3. ‘Specialist educational qualification’ is defined in r.2.26AC(5A). The applicant must satisfy the Minister that he has 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. The relevant written instrument (IMMI 16/076) specifies certain subsets of the natural and physical sciences, information technology and engineering technologies, but does not include the health sciences or physiotherapy. Moreover, the Tribunal is satisfied from the applicant’s academic transcript that his Doctor of Physiotherapy is a masters by coursework, and not by research, and that it is not a doctorate.

4. Accordingly, the Tribunal finds that the applicant is not entitled to any points under this part.

5. This means that his score remains 55 points, and this remains below the current pass mark of 60 points.

6. For the above reasons, the applicant is entitled to a maximum of 55 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 must be affirmed.

DECISION

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

Alison Mercer
Member