Grewal (Migration)

[2023] AATA 1054

Grewal (Migration) [2023] AATA 1054 (26 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajinder Grewal

CASE NUMBER:  2005172

HOME AFFAIRS REFERENCE(S):          BCC2020/420454

MEMBER:Katie Malyon

DATE:26 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 26 April 2023 at 3:58 pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points based visa – occupation of Microbiologist – claimed Australian studies when he was not in Australia – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 93, 94, 96, 350, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 189.224; Schedule 6D, rr 1.15, 2.26

CASES

Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 5 March 2020 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 (Cth) (the Act).  This is a points based permanent residence visa designed for skilled applicants who have submitted a Skill Select Expression of Interest (Skill Select EoI) to the Department and then received an invitation from the Minister to apply for the visa.

2. The applicant, Indian national Mr Rajinder Grewal, submitted his Skill Select EoI ID E0015354031 on 4 February 2020 following which he was invited to apply for a Subclass 189 visa on 11 February 2020. Mr Grewal lodged his online application of the visa on 13 February 2020. 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 on the basis Mr Grewal did not satisfy the ‘points test’ criterion in cl 189.224. Having assessed Mr Grewal’s score to be just 25 points, the delegate noted that this assessed score of 25 points is less than the score of 100 stated in his Skill Select EoI and is also less than the qualifying score of 65. As such, Mr Grewal does not meet cl 189.224(1) of Schedule 2 to the Regulations and nor does he meet cl 189.224(2). Essentially, this was due to the total absence of any documentation being lodged in support of his Subclass 189 visa application. 

3. No documentation was lodged with the Tribunal in support of Mr Grewal’s review application, apart from the biodata page of his Indian passport and a copy of the delegate’s decision refusing the visa application.

   The Tribunal’s 359(2) letter

4. On 28 February 2023, the Tribunal wrote to Mr Grewal under s 359(2) of the Act and invited him to provide evidence to address all of the criteria claimed in his Skill Select EoI submitted to the Department on 4 February 2020.

5. The Tribunal’s letter advised Mr Grewal that, if information in writing was not received by the Tribunal on or before 14 March 2023 or, in the alternative, if he did not - on or before that date - make a request for an extension of time in which to provide the information, the Tribunal: may make a decision on the review without taking further steps to obtain the information; and, he would lose any entitlement he might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.

6. The Tribunal is satisfied that its invitation was properly dispatched to Mr Grewal’s email address. Further, given the passage of time since lodgement of the review application, the Tribunal telephoned Mr Grewal twice on 28 February 2023 on the mobile number indicated in his review application lodged with the Tribunal: however, no one answered the Tribunal’s calls. However, the Tribunal left voicemails on each occasion for Mr Grewal to return the Tribunal’s calls regarding his review application. As at the date of this decision, no response has been received from Mr Grewal in response to the Tribunal’s s 359(2) letter and nor has he requested additional time in which to do so. No calls have been received from Mr Grewal in response to the Tribunal’s 2 voicemails. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3) of the Act, Mr Grewal is not entitled to appear before the Tribunal. If a review applicant has no entitlement to a hearing, the effect of s 363A of the Act is that the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

7. Although Mr Grewal has not requested this, the Tribunal has considered whether it would be appropriate to adjourn the review under s 363(1)(b) of the Act to allow him additional time in which to provide evidence to support his review application.

8. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the recent COVID-19 pandemic, evidence that Mr Grewal meets the requirements in cl 189.224 of Schedule 2 to the Regulations is likely to be forthcoming, whether he has had a fair opportunity to provide the information or documents already, and the significance of the information or documents to him. The Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.  

   [1] [2002] FCA 617

   [2] 2012] FMCA 28

9. As noted above, Mr Grewal did not lodge any documentation whatsoever in support of his Subclass 189 visa application.  Nor did he provide any documentation in support of his review application when it was lodged with the Tribunal. The delegate clearly articulated the reasons for refusal of the visa application. On 28 February 2023, the Tribunal wrote to Mr Grewal under s 359(2) of the Act inviting him to provide updated information demonstrating that he meets the criteria in his Skill Select EoI. Mr Grewal has failed to provide any of the requested information within the prescribed period set for this purpose and nor has he sought additional time in which to do so.  It is evident to the Tribunal that Mr Grewal has consistently failed to proactively engage with the requirement that he lodge evidence to support the claims made in his Skill Select EoI.

10. In the circumstances of this case, the Tribunal considers that Mr Grewal has had sufficient time to provide requested information and thereby address the issue arising on review. Accordingly, the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information in accordance with
    s 359C of the Act.

11. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. In the event that Mr Grewal chooses to seek judicial review of the Tribunal’s decision, the Tribunal will bring to the attention of the Federal Circuit and Family Court of Australia’s Registry office the total absence of any documentation whatsoever in support of Mr Grewal’s Skill Select EoI, not only at the time of lodgement of his Subclass 189 visa application with the Department but also when the review application was lodged with the Tribunal and then his failure to respond to the Tribunal’s s 359(2) letter. Mr Grewal’s failure to provide any evidence whatsoever in support of the claims set out in his Skill Select EoI suggests lodgement of his Subclass 189 visa application and then this review application has been motivated by a desire to remain in Australia following his arrival as the holder of a Visitor Subclass 600 visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue

12. The issue in the present case is whether the applicant satisfies the points test criterion which requires that their score, when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act is not less than:

    1)   the score stated in the invitation to apply for the visa; and,

    2)   the ‘qualifying score’.

    Legal principles

13. By way of background, 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 of the Regulations. Consistent with s 94 of the Act, an applicant achieves the qualifying score if their assessed score is more than, or equal to, the applicable pass mark which is set by the Minister from time to time under s 96(2) of the Act. The Tribunal must consider the applicant against the qualifications and points prescribed in Schedule 6D as well as the pass mark in force both at the time of the delegate’s assessment and as in force at the time of this assessment. It must then apply whichever of these is more favourable to the applicant: s 93 and s 350 of the Act.

14. Some elements of the points test relate to an applicant’s 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 of the Regulations. The relevant instrument for the purposes of this case is IMMI 19/051. In this case, Mr Grewal nominated the occupation of Microbiologist.

15. Having regard to the provisions in s 350 of the Act, the Tribunal has considered below Mr Grewal’s score as assessed by applying the law in force at the time of the delegate’s decision and as at the time of its decision. The Tribunal has summarised in the Table below at para [52] its comparative assessment of Mr Grewal’s score as set out in his Skill Select EoI, the law in force at the time of the delegate’s decision and as at the time of its decision to enable it to determine which is more favourable for Mr Grewal as required by s 350 of the Act.

    What is the applicant’s assessed score applying the law in force at the time of the delegate’s assessment and at the time of the Tribunal’s assessment?

    Part 6D.1 – Age qualifications

16. 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.

17. At the time of invitation, Mr Grewal was aged 34 years.  This is confirmed by information in his Indian passport.  Therefore, Mr Grewal is entitled to 25 points under this Part as at the time of the delegate’s decision. 

18. There have been no changes to the law in this regard since the time of the delegate’s decision.  As at the time of this decision, Mr Grewal continues to be entitled to 25 points. 

    Part 6D.2 – English language qualifications

19. Points are available under this Part on the basis of the applicant’s level of English language proficiency as at the time of invitation to apply for the visa. An applicant who has ‘superior English’ as defined in reg 1.15EA of the Regulations is awarded 20 points and an applicant who has ‘proficient English’ as defined in reg 1.15D of the Regulations is awarded 10 points.

20. Mr Grewal claims in his Skill Select EoI to have ‘superior English’.  However, he has not provided either the Department or the Tribunal with any evidence regarding the results of an English language test as at the time of the time of invitation to apply for the Subclass 189 visa.  Therefore, he is entitled to no points under this Part, both at the time of the delegate’s decision and as at the time of this decision.

    Part 6D.3 – Overseas employment experience qualifications

21. Points are 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.

22. Mr Grewal claims in his Skill Select EoI to have more than 3 years but less than 5 years of experience overseas in his nominated occupation of Microbiologist in the 10 years immediately before the invitation to apply for a Subclass 189 visa.  However, he has provided no evidence whatsoever to support this claim.  Inconsistent with his claim in his Skill Select EoI, he made no claims in his Subclass 189 visa application in relation to this Part.

23. Therefore, subject to consideration of Part 6D.5 below, Mr Grewal is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.4 – Australian employment qualifications

24. Points are 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.

25. Mr Grewal claims in his Skill Select EoI to have more than 12 months but less than 36 months experience in his nominated occupation of Microbiologist in Australia.  However, he has not provided any evidence, either to the Department or the Tribunal, to confirm his claimed employment experience in Australia as a Microbiologist.

26. Therefore, subject to consideration of Part 6D.5, Mr Grewal is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of the Tribunal’s assessment.

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

27. 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 these Parts is more than 20 points, then 20 points must be given under Part 6D.5 for the qualifications and no points are to be given under Part 6D.3 or 6D.4.

28. The combined number of points awarded to Mr Grewal under Parts 6D.3 and 6D.4 is no points.  As this is not more than 20 points, he is entitled to no points under Part 6D.5, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.6 – Australian professional year qualifications

29. 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 a legislative 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.

30. Mr Grewal has not made any claims, nor has he provided any evidence of, completing a professional year at the time he was invited to apply for his Subclass 189 visa.  Therefore, he is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of the Tribunal’s assessment.

    Part 6D.7 – Educational qualifications

31. An applicant is entitled to points under this Part if, at the time of invitation to apply for the visa, they met the requirements for award of a specified Australian qualification or overseas qualification of a recognised standard. In determining whether an overseas qualification is of a ‘recognised standard’, regard must be had to the matters set out in reg 2.26AC(5) of the Regulations which include recognition of the qualification by the relevant assessing authority, recognition of the qualification by a specified body, the duration of the study and any other relevant matter: item 6D71(b) and item 6D72(b) of Schedule 6D to the Regulations.

32. Essentially, an applicant who has been awarded a doctorate is awarded 20 points, an applicant who has met the requirements for the award of at least a bachelor degree is awarded 15 points and applicants who have met requirements for the award of a diploma, trade qualification or other qualification recognised by the relevant assessing authority are awarded 10 points.

33. In both his Skill Select EoI and his Subclass 189 visa application, Mr Grewal stated that he had completed a Bachelor of Science Microbiology at Swinburne Institute of Technology’s Hawthorn campus between 15 June 2015 and 8 February 2019.  However, Mr Grewal has not provided any evidence whatsoever of his undertaking this study in Australia.  Therefore, Mr Grewal is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of the Tribunal’s assessment.

34. The Tribunal notes in passing that its review of Mr Grewal’s Movement Records which are maintained by the Department confirms that he first arrived in Australia on 15 November 2019 as the holder of a Subclass 600 Visitor visa.  This is the only substantive visa that Mr Grewal has held whilst in Australia.  As such, it is not possible that Mr Grewal could have undertaken studies for a Bachelor of Science Microbiology degree at Swinburne Institute of Technology in the period 15 June 2015 to 8 February 2019.  Mr Grewal’s claim to have completed a degree in Australia in this period when he was not in Australia raises serious doubts in the mind of the Tribunal regarding the probity of other claims in his Skill Select EoI, none of which have been substantiated apart from his age. 

    Part 6D.7A – Specialist educational qualifications

35. 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) of the Regulations. 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.

36. In his Skill Select EoI, Mr Grewal claimed he has postgraduate specialist education qualifications and that, as a consequence, he should be awarded 10 points.  However, in his Subclass 189 visa application, Mr Grewal did not claim to have a specialist education qualification.  He has provided no evidence of meeting the specialist education qualification requirement, either to the Department or to the Tribunal.  Therefore, he is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of the Tribunal’s assessment.

    Part 6D.8 – Australian study qualifications

37. 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.

38. As noted above, Mr Grewal indicated in both his Skill Select EoI and his Subclass 189 visa application that he had obtained a Bachelor of Science Microbiology at Swinburne Institute of Technology’s Hawthorn campus.  No evidence has been provided to support this claim, such as evidence of the grant of a Subclass 500 Student visa to Mr Grewal or the award of a Bachelor of Science Microbiology degree from Swinburne Institute of Technology accompanied by evidence of his Academic Transcript.  Therefore, as the Australian study requirement had not been met at the time of invitation to apply for the visa, Mr Grewal is entitled to no points under this Part, both at the time of the delegate’s assessment and at the time of the Tribunal’s assessment.

    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. Mr Grewal claimed in his Skill Select EoI to have obtained a community language qualification and therefore claimed 5 points under this Part.  However, in his Subclass 189 visa application lodged the Department a fortnight later, he stated that he did not have a credentialled community language qualification.  No evidence was provided that Mr Grewal is the holder of a NAATI accredited qualification as specified by the Minister.

3. As Mr Grewal has not provided any evidence to support his claim in his Skill Select EoI of having a qualification in a community language such as a NAATI accreditation he is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of the Tribunal’s assessment.

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

4. 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 that term is 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.

5. Mr Grewal claimed in his Skill Select EoI that he should be awarded 5 points for having studied in a designated regional area.  However, as noted above, he has provided no evidence that he studied in Australia including in a designated regional area.  In his Subclass 189 visa application, he did not claim to have studied in regional Australia.  In passing, the Tribunal notes that Swinburne University of Technology’s Hawthorn campus is located in Melbourne, not regional Victoria.

6. As Mr Grewal has not provided any evidence to support his claim in his Skill Select EoI of having a study in a designated regional area he is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of the Tribunal’s assessment.

   Part 6D.11 – Partner qualifications

7. 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.

8. Mr Grewal claimed in his Skill Select EoI that he has a partner.  In his Subclass 189 visa application, he states that he was married on 27 January 2017.  Mr Grewal’s spouse is not included in the visa application and he has not provided any evidence as to his spouse’s level of English language ability.

9. The delegate found that he is entitled to 0 points and, as there have been no changes to the law in regard to this Part of Schedule 6D since the time of the delegate’s decision, he continues to be entitled to 0 points under this Part.

   Part 6D.12 – State or Territory nomination qualifications

10. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa.  Mr Grewal has not been invited to apply for such a visa and is therefore not entitled to any points under this Part.

11. As Mr Grewal was not invited to apply for a Subclass 190 (Skilled- Nominated) visa, no points have been awarded for this category as at the time of the delegate’s decision and this decision.

    Part 6D.13 – Designated regional area nomination or sponsorship qualifications

12. 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.  

13. Mr Grewal has not been invited to apply for such a visa and is therefore entitled to 0 points under this Part, both at the time of the delegate’s decision and at the time of this decision. 

    Conclusion on points

14. Based on the above assessment and having review documentation provided, the number of points claimed by Mr Grewal in his Skill Select EoI and the points awarded to him both by the delegate and the Tribunal are set out in the Table below.

    Table - Points claimed by Mr Grewal in his Skill Select EoI, awarded by the delegate and by the Tribunal

Item	Qualification	Claimed EoI points	DoHA points	AAT points
6D.1	Age	25	25	25
6D.2	English language	20	0	0
6D.3	Overseas employment experience	5	0	0
6D.4	Australian employment experience	5	0	0
6D.5	Aggregated employment	0	0	0
6D.6	Australian professional year	0	0
6D.7	Educational	15	0	0
6D.7A	Specialist education qualification	10	0	0
6D.8	Australian study	5	0	0
6D.9	Credited community language	5	0	0
6D.10	Study in a designated regional area	5	0	0
6D.11	Partner qualifications	5	0	0
6D.12	State or Territory nomination	0	0	0
6D.13	Designated area sponsorship	0	0	0
Total score	100	25	25

1. In his Skill Select EoI, Mr Grewal claimed to have scored 100 points.  However, as the only document lodged in support of the application with the Department was the biodata page of Mr Grewal’s passport, the delegate awarded him 25 points.  

2. Despite the delegate clearly setting out the reasons why he had scored only 25 points, no documentation was lodged with the Tribunal at the time Mr Grewal sought review of the delegate’s refusal of Subclass 189 visa application to address these concerns, apart from a further copy of the biodata page of his passport. In addition, Mr Grewal did not respond to the Tribunal’s s 359(2) letter requesting that he provide information to address the basis of the delegate’s refusal of his Subclass 189 visa application.

3. As there have been no changes to the law impacting the points awarded to applicants for Subclass 189 visas since the time of the delegate’s decision, the Tribunal concurs with the delegate’s assessment of his score to be 25 points. 

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

4. It is a requirement in cl 189.224(1) of Schedule 2 to the Regulations that the applicant’s score is not less than the score stated in the invitation to apply for the visa. As noted above, the Department’s written invitation dated 11 February 2020 sent to Mr Grewal stated he claimed a score of 100 points in his Skill Select EoI.

5. The Tribunal has considered Mr Grewal’s Skill Select EoI and satisfied itself that he claimed a score of 100 points. However, for the reasons set out above, the Tribunal finds that Mr Grewal has achieved a score of just 25 points, both at the time of the delegate’s decision and as at the time of this decision. Accordingly, Mr Grewal has not achieved the score stated in the invitation to apply for the visa and, therefore, it finds that he does not meet cl 189.224(1) of Schedule 2 to the Regulations.

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

6. Clause 189.224(2) of Schedule 2 to the Regulations provides that the applicant’s score is not less than the qualifying score. The qualifying score at the time of the delegate’s decision was 65 points: LIN 19/210. There has been no change in the qualifying score since the time of the delegate’s decision.

7. Having reviewed available documentation, the Tribunal is satisfied that Mr Grewal’s score of 25 points is less than the current qualifying score of 65 points. Accordingly, the Tribunal finds that he has not achieved the qualifying score applying the law in force at the time of the Tribunal’s assessment and, therefore, that he does not meet cl 189.224(2) of Schedule 2 to the Regulations.

   Conclusion

8. For the reasons outlined above, the Tribunal finds that Mr Grewal does not satisfy cl 189.224 of Schedule 2 to the Regulations. As this is a prescribed criterion for the grant of the visa, the decision under review must be affirmed.

   DECISION

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

   Katie Malyon

   
   Member