Harrison (Migration)

[2024] AATA 577

Harrison (Migration) [2024] AATA 577 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Luke Harrison
Miss Gabriela Alexandra Perez Jaimes

CASE NUMBER:  2205051

HOME AFFAIRS REFERENCE(S):          BCC2020/1348498

MEMBER:Karen McNamara

DATE:18 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

Statement made on 18 March 2024 at 11:31am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled – Nominated) – ‘points test’ criterion – Program or Project Administrator – partner qualifications – de facto partner added to application – score stated in the invitation to apply for the visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 350
Migration Regulations 1994 (Cth), r 2.26AC; Schedule 2, cl 190.214

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 31 March 2022, to refuse to grant the applicants Nominated (Permanent) (Class SN) Subclass 190 (Skilled - Nominated) visas under s 65 of the Migration Act 1958 (Cth) (the Act). 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.

2. The first named applicant, Mr Luke Harrison (the applicant) was invited to apply for the visa on 23 March 2020 and applied for the visa on 10 April 2020. The criteria for the grant of a Subclass 190 - Skilled - Nominated visa are set out in Part 190 - Skilled - Nominated of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 190.214.

3. The primary decision record shows that on 31 March 2022, the delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 190.214. Having assessed the applicant’s score to be 75 points, the delegate noted that the assessed score of 75 points is less than the score of 85 points as specified in the invitation letter. As such, the delegate found the applicant does not meet cl 190.214(1) of Schedule 2 to the Regulations, hence not satisfying the requirements of cl 190.214.

4. The delegate also found that the secondary applicant Miss Gabriela Alexandra Perez Jaimes, could not be granted a Subclass 190 - Skilled Nominated visa as she did not meet the secondary visa criterion (cl.190.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and was granted a Subclass 190 visa.

5. The applicants lodged an application for review with the Tribunal on 5 April 2022. The review application was accompanied by a copy of the Department primary decision record.

6. On 5 February 2024, the Tribunal invited the applicants under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 27 February 2024.

7. Additionally on 5 February 2024, the Tribunal wrote to the review applicants pursuant to section 359(2) of the Act (dispatched by email to the authorised recipient), requesting the applicants to provide by 19 February 2024, probative evidence to address the criteria of cl.190.214 in Schedule 2 of the Migration Regulations, as claimed in their application for a Skilled Nominated (Permanent) (Class SN) Skilled Nominated (Subclass 190) visa, lodged with the Department on 10 April 2020.

8. On 18 February 2024, the applicant sought an extension of time to respond on the grounds that he had lodged an FOI request with the Department and was still awaiting the information.

9. In response, the Tribunal noted that the applicant had been aware of the delegates decision for almost two years and therefore has had ample opportunity to submit an FOI request to the Department. The Tribunal subsequently granted the applicant an extension to 23 February 2024.

10. On 23 February 2024, the applicant provided to the Tribunal via email, a written submission accompanied by bank statements and NSW Government Registry of Births Deaths & Marriages application to register a relationship.

11. On 27 February 2024, Mr Luke Harrison appeared before the Tribunal to give evidence and present arguments.

12. The Tribunal also has before it, the Department file containing all information before the delegate at the time of their decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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’.

15. 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). 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).

16. 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). The relevant instrument for this purpose is Legislative Instrument LIN 19/051. In the present case the applicant nominated the occupation of Program or Project Administrator (ANZSCO 511112).

17. Having regard to the provisions in s 350 of the Act, the Tribunal has considered the applicant’s score as assessed by applying the law in force at the time of the delegate’s decision and as at the time of the Tribunal’s decision. The Tribunal has summarised in the Table below at paragraph [56] its comparative assessment of the applicant’s score as set out in the application to the Department dated 10 April 2020, the law in force at the time of the delegate’s decision and as at the time of the Tribunal’s decision, to enable it to determine which is more favourable for the applicant as required by s 350 of the Act.

    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

18. 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.

19. At the time of invitation, the applicant was aged 32 years. This is confirmed by the copy of the applicant’s passport biodata page as provided to the Department. Therefore, the applicant is entitled to 30 points under this part.

20. There have been no changes to the law in regard to this qualification since the time of the delegate’s decision. As at the time of this decision, the applicant continues to be entitled to 30 points.

    Part 6D.2 – English language qualifications

21. 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.

22. The applicant claimed 20 points on the basis of having superior English at the time of invitation to apply for the visa. IMMI 15/005 specifies an International English Language Testing System (IELTS) score of at least 8 in each of the 4 test categories, listening, reading, writing and speaking.

23. In support of his claim, the applicant provided evidence of undertaking an IELTS on 11 October 2019, attaining 9 for Listening, 9 for Reading, 8 for Writing, 8.5 for Speaking.

24. The applicant therefore is assessed as having superior English as defined in reg 1.15EA and therefore entitled to 20 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

25. 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.

26. The applicant has made no claims or provided evidence to support that he was employed outside Australia in a skilled occupation for a least 36 months in the 10 years immediately before his invitation to apply for a Subclass 190 visa.

27. Therefore, subject to consideration of Part 6D.5 below, the applicant 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

28. 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.

29. The applicant claimed 5 points on the basis of having been employed in Australia in his nominated skilled occupation; or a closely related skilled occupation for a period totalling at least 12 months in the 10 years, immediately before the date of the invitation to apply for the visa.

30. The applicant stated in his application form that he was employed by Ayers Group as a Senior Project Manager from January 2019 to April 2020 and Morgan McKinley from April 2018 to June 2018. This is supported by reference letters and contracts of employment issued by said employers.

31. The Tribunal therefore is satisfied, the applicant has provided sufficient evidence to demonstrate that he was employed in his nominated skilled occupation (Program or Project Administrator) or a closely related skilled occupation for at least 12 months in the 10 years immediately before he received his invitation to apply for this visa.

32. Therefore, subject to consideration of Part 6D.5 below, the applicant is entitled to 5 points under this part, both at the time of the delegate’s assessment and as at the time of this decision.

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

33. 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.

34. The combined number of points awarded to the applicant under Parts 6D.3 and 6D.4 is 5 points. As this is not more than 20 points, the applicant 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

35. 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.

36. The applicant has made no claims and provided no evidence to support he completed a professional year in Australia. The applicant therefore is entitled to no points under this part.

    Part 6D.7 – Educational qualifications

37. 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.

38. In support of his claim of Educational Qualifications, the applicant provided evidence of completing a Bachelor of Arts degree (History and Economics) from the University of Lancaster in July 2009.

39. The evidence before the Tribunal confirms that the applicant has met the requirements for the award of at least a bachelor qualification, by another educational institution, that is of a recognised standard.

40. Accordingly, the applicant is entitled to 15 points under this part.

    Part 6D.7A – Specialist educational qualifications

41. 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). 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.

42. The applicant has made no claims and provided no evidence of meeting the specialist educational qualification requirement specified in Part 6D.7A at the time of the invitation to apply. Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

43. 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.

44. The applicant has made no claims and provided no evidence of meeting the Australian study requirement specified under Part 6D.8 at the time of the invitation to apply. Therefore, the applicant is entitled to no points under this part.

    Part 6D.9 – Credentialled community language qualifications

45. 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.

46. The applicant has made no claims and provided no evidence of that he was the holder of a qualification in a particular language awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa. Therefore, the applicant is entitled to no points under this part.

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

47. 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.

48. The applicant has made no claims and provided no evidence that he met the study in a designated regional area qualification. Therefore, the applicant is entitled to no points under this part.

    Part 6D.11 – Partner qualifications

49. 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.

50. At the time of application, the applicant claimed 10 points as he stated he did not have a spouse or de facto partner. This was reflected in the allocation of 10 points on the invitation to apply dated 23 March 2020.

51. Following the applicant’s lodgement of an expression of interest, being issued an invitation to apply and lodgement of his application with the Department, the applicant sought to include his de facto partner in his application. However, the applicant has made no claims and provided no evidence to support his spouse meets any of the requirements of Part 6D.11.  Therefore, the applicant 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.12 – State or Territory nomination qualifications

52. Points are available under this Part for applicants who were invited to apply for a Subclass 190 (Skilled - Nominated) visa, where the relevant agency has not withdrawn the nomination. The applicant in this case was invited to apply for a Subclass 190 visa.

53. Information before the Tribunal shows the applicant was invited to apply for a Subclass 190 (Skilled - Nominated) visa on 23 March 2020. The invitation specified that the applicant was nominated by the NSW State Government. There is no evidence to support that the NSW State Government has withdrawn the nomination.

54. Accordingly, the applicant is entitled to 5 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

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

55. 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. 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

56. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s and Tribunal’s assessments, and the information available to the Tribunal, the number of points to be awarded to the applicant under Schedule 6D are demonstrated in the following table:

Part	Qualification	Claimed EOI Points	Department awarded Points	Tribunal awarded points
6D.1	Age	30	30	30
6D.2	English language	20	20	20
6D.3	Overseas employment experience	0	0	0
6D.4	Australian employment experience	5	5	5
6D.5	Aggregated employment	0	0	0
6D.6	Australian professional year	0	0	0
6D.7	Educational	15	15	15
6D.7A	Specialist education qualification	0	0	0
6D.8	Australian study	0	0	0
6D.9	Credited community language	0	0	0
6D.10	Study in a designated regional area	0	0	0
6D.11	Partner qualifications	10	0	0
6D.12	State or Territory nomination	5	5	5
6D.13	Designated area sponsorship	0	0	0
Total Points claimed	85
TOTAL SCORE			75	75

1. The applicant’s assessed score under the points system is therefore 75 points.

2. In his application to the Department, the applicant claimed to have scored 85 points. The invitation issued by the NSW State Government consisted of 10 points allocated on the basis the applicant was single at the time of application, therefore contributing to the overall invitation score of 85 points.

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

3. It is a requirement in cl 190.214 (1) of Schedule 2 to the Regulations 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. The written invitation issued by the NSW State Government stated a score of 85 points.

4. In submissions before the Tribunal, the applicant claims that at the time he lodged his EOI with the NSW State Government, he did not have a partner and therefore was allocated 10 points. However, following the issuing of the invitation to apply and subsequent lodgement of his application, the applicant sought to include his partner in his application.

5. The Tribunal acknowledges the applicant undertook steps to advise the Department and has been fully cooperative with the Department and Tribunal in declaring his relationship status. It is not disputed that the applicant’s EOI and State nomination had been lodged prior to the applicant registering his de facto relationship and he sought to include his partner in his visa application. Whilst the Tribunal acknowledges the circumstances as presented by the applicant contributing to the allocation of the 10 points on the invitation to apply, the Tribunal however, must turn its mind to the issue before it. The issue being, has the applicant achieved the score stated in the invitation to apply for the visa?

6. Whilst the applicant sought to amend his application by advising the Department on 7 November 2021 that the correct information was that his partner has competent English and he wished to claim 5 points, the written invitation issued by the NSW Government stated a score of 85 points. At the hearing the Tribunal discussed with the applicant that once an invitation is issued by the NSW Government the invitation score cannot be changed. Additionally, there is no evidence before the Tribunal to support that the secondary applicant satisfies the partner skills requirements to qualify for 10 points under this qualification.

7. For the reasons set out above, the Tribunal finds that the applicant has achieved a score of 75 points, both at the time of the delegate’s decision and as at the time of this decision. Accordingly, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa and therefore finds that the applicant does not meet cl. 190.214(1) of Schedule 2 to the Regulations.

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

8. Clause 190.214(2) of Schedule 2 to the Regulations provides 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 qualifying score for that Subdivision. 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.

9. Having reviewed available documentation, the Tribunal is satisfied that the applicant’s score of 75 points is not less than the current qualifying score of 65 points. Accordingly, the Tribunal finds that the applicant has achieved the qualifying score, applying the law in force at the time of the Tribunal’s assessment and, therefore, finds that the applicant meets cl.190.214(2) of Schedule 2 to the Regulations.

10. However, for the reasons outlined above, the applicant does not satisfy the requirements of cl 190.214(1) of Schedule 2 to the Regulations. As this is a prescribed criterion for the grant of the visa, the Tribunal finds that the applicant does not satisfy the requirements of cl 190.214. Accordingly, the decision under review must be affirmed.

11. There is no evidence before the Tribunal to indicate that a secondary applicant meets the primary requirements for grant of the visa.

12. As the first named applicant is found not to have met the prescribed criteria for a subclass 491 visa, the second named applicant Miss Gabriela Alexandra Perez Jaimes, as a member of Mr Luke Harrison’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.190.311 of Schedule 2 to the Migration Regulations 1994.

    DECISION

13. The Tribunal affirms the decision not to grant the applicants Skilled Nominated (Permanent) visas.

    Karen McNamara
    Member