Haque (Migration)

[2017] AATA 2433

Haque (Migration) [2017] AATA 2433 (8 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD OBAYDUL Haque

CASE NUMBER:  1600289

DIBP REFERENCE(S):  BCC2009/147025

MEMBER:Antonio Dronjic

DATE:8 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

·cl.885.221 of Schedule 2 to the Regulations.

Statement made on 08 November 2017 at 12:54pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 885 (Skilled - Independent) – Points based visa – Nominated occupation Cook – Qualifying score achieved

LEGISLATION

Migration Act 1958, ss 65, 92, 93, 94, 95, 96, 350

Migration Regulation 1994, r 1.15B, r 1.15F, r 1.15I, r 2.26AA, r 2.26AB, Schedule 2, cl 885.221 Schedules 6B, 6C

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 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 31 March 2009. 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).

3. The delegate refused to grant the visa on 21 December 2015 on the basis that the visa applicant did not satisfy cl.885.221of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant achieved the qualifying score. The delegate did not accept the applicant’s claims in relation to employment experience in Australia.

4. The applicant applied to the Tribunal on 9 January 2016 for review of the delegate’s decision and provided a copy of the primary decision record. The applicant was represented in relation to the review by his registered migration agent.

5. The applicant appeared before the Tribunal (differently constituted) on 1 March 2017 to give evidence and present arguments. His migration agent attended the hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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).

8. 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).

9. 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).

   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

10. Points are available under this Part if the applicant has a suitable skills assessment for his or her nominated skilled occupation for which 40, 50 or 60 points are available.

11. The Tribunal is satisfied that the applicant nominated a skilled occupation at the time of application, namely that of a Cook (ASCO 4513-11) and has a suitable skills assessment. The relevant instrument in writing specifies that 60 points are available for this occupation. The relevant assessing authority for the nominated occupation is specified in the Instrument as Trades Recognition Australia (TRA).

12. The Tribunal finds that the maximum points to which the applicant is entitled is 60 points for Part 6B.1 in accordance with item 6B11.

    Part 6B.2 – Age Qualifications

13. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.

14. A copy of the applicant’s passport, presented with the application, indicates that he was born in January 1984. The Tribunal finds that the applicant was aged not less than 18 years and under 30 years at the time of the application. The applicant is entitled to 30 points for Part 6B.2 in accordance with item 6B21 of Schedule 6B.

    Part 6B.3 – English Language Qualifications

15. Points are available under this Part on the basis of the applicant’s level of English language proficiency.

16. According to the primary decision record provided by the applicant with his review application, the applicant provided the results of the IELTS test he completed on 8 November 2008 as evidence of having a ‘vocational level’ of English language.

17. The Tribunal finds that the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening. The Tribunal finds that the applicant has ‘vocational English’ within the meaning of r. 1.15B.

18. Under item 6B33 applicants who have nominated a trade occupation and have vocational English are awarded 15 points. As the applicant nominated an occupation of a cook, he is entitled for 15 points.

    Part 6B.4 – Specific Employment Qualifications

19. 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.

20. The applicant provided evidence of being employed in his nominated occupation from 3 June 2001 to 5 January 2005 at Miami Restaurant in Bangladesh. As this work experience falls outside 48 months period prior to lodgement of the application (on 31 March 2009), the applicant is not entitled to any points under this item.

    Part 6B.5 – Australian Employment Qualifications

21. 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.

22. The applicant had provided evidence of having been employed in Australia in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made. He provided evidence of being employed as a Cook at Oporto Haymarket at Sydney from September 2005 to December 2007 and evidence of being employed at Indian Home Dinner restaurant at Surrey Hills Sydney from October 2007 to March 2009.

23. The Tribunal had regard to ANZSCO description of the nominated occupation. According to ANZSCO, most occupations in this unit group have a level of skill commensurate with AQF Certificate III including at least two years of on the job training or AQF Certificate IV. It further states that that at least 3 years of relevant experience may substitute for the formal qualifications. The applicant has provided evidence of being employed in his nominated occupation from 3 June 2001 to 5 January 2005 at Miami Restaurant in Bangladesh. Accordingly, the tribunal is satisfied that the applicant’s work experience in Australia was at the skill level required for the occupation of a cook.

24. The Tribunal finds that the applicant meets the requirements of items 6B51 of Schedule 6B to the Regulations. The Tribunal finds that the applicant is entitled to 10 points in accordance with item 6B51 of Schedule 6B to the Regulations.

    Part 6B.6 – Australian Educational Qualifications

25. An applicant may be entitled to points under this Part if he or she has undertaken certain study in Australia.

26. The named applicant has presented evidence of having completed an Advanced Diploma in Accounting from 18 April 2005 to 16 June 2006 and a Certificate III in Hospitality from 1 April 2008 to 3 March 2009. Based on the completion letters, Academic Transcripts, and the departmental movement records related to the applicant, the Tribunal is satisfied that the applicant meets the Australian study requirement as prescribed by r.1.15F. The Tribunal finds that the applicant is entitled to a maximum of 5 points for Part 6B.6 in accordance with item 6B64 of Schedule 6B to the Regulations.

    Part 6B.7 – Occupation in Demand Qualifications

27. 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. 

28. The nominated occupation is Cook. Having regard to the relevant instrument, the Tribunal is satisfied this was a migration occupation in demand. The tribunal accepts that the applicant 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.

29. There is no evidence before the tribunal that the applicant had an offer of full time employment in certain organisations at the relevant time.

30. Therefore, the applicant is entitled to 15 points under this part.

    Part 6B.8 – Designated Language Qualifications

31. Points may be awarded under this section 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 translators in a designated language.  Designated languages are specified by the Minister.

32. 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

33. 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.

34. 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

35. 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.

36. 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

37. Points are available 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.

38. 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

39. Points are available under this Part for Subclass 475 and 487 visa applicants who have been sponsored by a relative and the Minister has accepted the sponsorship.

40. 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

41. 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  10 points

    Australian educational qualifications  5 points

    Occupation in demand qualifications  15 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  135 points

42. At the time of the delegate’s assessment the pass mark was 120 points. The applicant has therefore achieved the qualifying score to pass the points test.

43. For the above reasons, the applicant is entitled to a maximum of 135 points under the points test. At the relevant point in time, the pass mark was 120 points. Accordingly the applicant achieved the qualifying score required to pass the points test and therefore meets cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

    DECISION

44. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 885 (Skilled - Independent) visa:

    ·cl.885.221 of Schedule 2 to the Regulations

    Antonio Dronjic
    Member