Ji (Migration)

[2018] AATA 2252

Ji (Migration) [2018] AATA 2252 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sang Min Ji
Master Seonghak Ji
Ms Sun Joo Lee

CASE NUMBER:  1709482

DIBP REFERENCE(S):  BCC2011/258092

MEMBER:Karen Synon

DATE:16 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 16 May 2018 at 10:26am

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 885 (Skilled – Independent) – Software and Applications Programmers (nec) – Whether the applicant has the relevant “qualifying score” – Where applicant has 115 of 120 points required – Applicant does not have the relevant “qualifying score” -  Decision affirmed

Migration – Request for referral for Ministerial Intervention – Whether grounds exist for referring the matter to the Minister – Where two of the applicant’s children are Australian citizens – Where Australia’s obligations under the Convention on the Rights of the Child may be engaged – Matter referred for Ministerial Intervention

LEGISLATION
Migration Act 1958 (Cth), ss 65, 92-96, 350, 351, 359(2)
Migration Amendment (2015 Measures No. 1) Regulation 2015 (Cth)
Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 (Cth)
Migration Regulations 1994 (Cth), rr 1.15D, 1.15H, 1.15I, 2.26AA, 2.26AB, Schedule 2, cls 885.213, 885.221, Schedule 6B, Schedule 6C

CASES
Berenguel v MIAC (2010) 264 ALR 417

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 June 2011. 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 visas on 17 December 2014 on the basis that the primary visa applicant (‘the applicant’) did not satisfy cl.885.221 of Schedule 2 to the Regulations because he did not have the qualifying point score under either schedule 6B or 6C. Before this, on 21 February 2014, the visas were refused because the applicant did not satisfy cl.885.213 because he did not have competent English. This was appealed to the Tribunal and a differently constituted Tribunal remitted it back to the Department on 1 May 2014 on the basis that the applicant had provided evidence of competent English and thus met cl.885.213.

4. The applicants applied for review of the second primary decision refusal on 6 January 2015.  On 17 November the Tribunal affirmed the second decision of the delegate. The applicants again sought judicial review of the Tribunal’s decision of 17 November 2015 and on 21 April 2017 the matter was remitted back to the Tribunal, by consent, for reconsideration on the basis that the decision was affected by jurisdictional error when the Tribunal applied the incorrect version of the English language requirement.

5. The applicants were represented in relation to the review by their registered migration agent.

6. On 21 March 2018 the Tribunal wrote to the applicants in accordance with the provisions of s.359(2) inviting:

   ·Information which demonstrates that you are entitled to be awarded at least 120 points against the items in Schedule 6B, including information demonstrating you are entitled to points against an item and how many points you are entitle to for the item; and

   ·Information which demonstrates that you have the qualifying score required by cl.885.221.

7. This information was invited by 4 April 2018.  An extension of time in which to respond was requested and granted.

8. On 19 April 2018 a submission and supporting documents were provided.  The most relevant aspects of the submission are:

   ·Advice that two of the applicants, Miss Sooyeon Ji and Miss Jooyeon Ji are now Australian citizens and a request that they be withdrawn from the application for review;

   ·Evidence regarding the applicant’s claims against items under Schedule 6B;

   ·Advice that due to the applicant’s ongoing anxieties associated with the IELTS test he has been unable to obtain proficient English;

   ·A request for the Tribunal to refer this case to the Minister for his intervention.

9. Additional submissions and documents were also provided which, as relevant, are detailed below.

10. On 26 April 2018 the applicants’ representative advised the Tribunal that she had received instructions from the applicants that their right to a (further) hearing be waived and that a decision be made ‘on the papers’.

11. On this basis the Tribunal has proceeded to a decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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).

14. 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).

15. 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).  The relevant instrument for this purpose is Legislative Instrument IMMI 12/068.  In the present case, the applicant nominated the occupation of ‘Software and Applications Programmers (nec)’.

    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

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

17. The department file records that the applicant provided a successful skills assessment for the skilled occupation of ‘ICT Recent Graduate’ ANZSCO Code 2231-79 from the Australian Computer Society which is the assessing authority nominated in IMMI 12/068.  However the applicant nominated the occupation of ‘Software and Applications Programmers (nec)’ which has an ANZSCO Code of 261314.

18. On 3 June 2015, at the Tribunal’s request, the Australian Computer Society provided to it a copy of the applicant’s successful skills assessment for the occupation of ‘Software and Applications Programmers (nec)’.

19. In a submission dated 18 April 2018 it was contended that the applicant is entitled to 60 points under this part on the basis of his successful skills assessment as a ‘Software and Applications Programmers’.  The Tribunal concurs with this submission and notes that in its decision of 17 November 2015 it allocated 60 points under Part 6B.1.

20. The applicant is therefore entitled to 60 points under this part.

    Part 6B.2 – Age Qualifications

21. Points are available under this Part if the applicant is aged between 18 and 44 years at the time of application.  Information on the department file records the applicant’s date of birth as 21 July 1972 and he confirmed this at the hearing on 26 May 2015.  The applicant was therefore aged 38 at the time of visa application.  The Tribunal notes that in its decision of 17 November 2015 it allocated 20 points under Part 6B.2 and this is not in contention.

22. Consequently, the applicant is entitled to 20 points under this part.

    Part 6B.3 – English Language Qualifications

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

24. Relevantly to this case, Item 6B31 provides for 25 points where an applicant has proficient English which is defined as an IELTS test score of at least 7 for each of the 4 test components of speaking, reading, writing and listening.  Item 6B32 provides for 15 points where an applicant has competent English which is relevantly defined as an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening.

25. The issue on which the consent remittal occurred was that the Tribunal applied the wrong legislative instrument.  It notes that at the time of its decision it applied the correct instrument: IMMI 15/005, which provides the relevant test scores the applicant needs to achieve in an IELTS test to have ‘Proficient English’. At the time the Tribunal made its decision on 17 November 2015, the applicant was not entitled to any points for Proficient English, as defined in r.1.15D. This was due to Migration Amendment (2015 Measures No. 1) Regulation 2015, which commenced on 18 April 2015. This amended r.1.15D for all undetermined applications as at that date so that Proficient English could only be obtained where the test was undertaken in the three year period immediately prior to the applicant being invited to apply for the visa.

26. However, Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 commenced operation on 18 November 2015 and retrospectively amended the amendments made by Measures No.1 to r.1.15D so that they were restricted to visa applications made on or after 1 July 2012. As the visa application was made on 11 June 2011, the applicant retains the benefit of the earlier version of r.1.15D (prior to the amendments made by Measures No.1), which provided that a person would have Proficient English if the person satisfied the Minister that they had achieved the relevant IELTS test score in a test conducted not more than 2 years before the day on which the application was lodged. The Tribunal’s decision was therefore rendered legally incorrect by virtue of the retrospective application of 2015 Measures No. 3 that came into effect on 18 November 2015; the day after the decision was made. Therefore in this case, as the pre 1 July 2011 version of r.1.15D applies, it is now permissible for the applicant to undertake the relevant test after the date of application and provide evidence to the Tribunal of a satisfactory score up until the time of decision: Berenguel v MIAC (2010) 264 ALR 417.

27. In the submission dated 18 April 2018, the Tribunal was advised that due to his ongoing anxieties associated with the IELTS test, the applicant has been unable to obtain proficient English.  The evidence before the previously constituted Tribunal was that the applicant sat 16 IELTS tests.  He sat a further IELTS test on 11 April 2018 but was only able to achieve the standard of competent English.  The applicants’ representative relevantly advised “I am instructed that [the applicant] remains unable to obtain the required score to satisfy the requirements”.   The submission further stated that the applicant is entitled to 15 points under part 6B.3 on the basis of his achievement of the standard of competent English.

28. The applicant is entitled to 15 points under this part.

    Part 6B.4 – Specific Employment Qualifications

29. 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.

30. In the alternative, points are also available under Part 6B42 if the applicant has been employed in a skilled occupation for a period totalling, at least 36 months in the 48 months immediately before the day on which the application was made.

31. The applicant gave evidence at the previously constituted Tribunal hearing that he was not employed in a skilled occupation for a period totalling at least 36 months in the 48 months immediately before the day on which the application was made.  No evidence has been provided to this Tribunal to contest this

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

    Part 6B.5 – Australian Employment Qualifications

33. 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.

34. The department file records the applicant’s certification of the completion of an ACS Professional Year Program conducted by the Australian Computer Society (at folio 23).  The applicant confirmed at the hearing of the previously constituted Tribunal that he had completed this 18 month course.  A copy of his completion certificate has also been provided to the Tribunal.

35. As the Australian Computer Society’s professional year program is specified in the relevant instrument: IMMI 12/029, the applicant is therefore entitled to 10 points under part 6B52.

    Part 6B.6 – Australian Educational Qualifications

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

37. Item 6B61 provides for 25 points where an applicant has met the requirements for award of a doctorate by an Australian educational institution as a result of a course of study of at least 2 academic years.  Items 6B62 and 6B63 provide 15 points each where an applicant has undertaken a course of study in Australia of at least 3 academic years, in English, and has met the requirements for the award of a masters degree or honours degree (6B62) or an undergraduate honours degree (6B63) for which he has achieved second class (division 1) or higher honours.  Item 6B64 provides 5 points to an applicant who satisfied the Australian study requirement.

38. Information contained in the visa application states that the applicant completed a Master of Applied Science (Information Systems) at RMIT University on 14 July 2008.  The applicant’s oral evidence at the previously constituted Tribunal hearing was that he completed this course at the Melbourne CBD campus.  The applicant has provided a copy of his ‘Statement of Academic Completion’ provided to him by RMIT dated 20 January 2010.  It states that this qualification was taught in English and was conferred on the applicant on 31 July 2008 as a result of two years full time study.  The Tribunal also notes that the applicant’s movement records confirm that he was the holder of 3 successive Student visas (Subclass 573) from 6 February 2006 to 30 September 2008.

39. On this basis the Tribunal is satisfied that the applicant satisfied the Australian study requirements through completing a Masters qualification for award by an Australian educational institution as a result of a course which is a registered course and that was completed in a total of at least 16 calendar months; that was completed as a result of at least 2 academic years and for which all the instruction was in English and was completed while the applicant was the holder of a visa authorising him to study.

40. Therefore, the applicant is entitled to 5 points under this part.

    Part 6B.7 – Occupation in Demand Qualifications

41. 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.

42. The applicant's subclass 885 visa application was lodged on 11 June 2011.  The Tribunal must apply either the Migration Occupations in Demand List’ (MODL) in force at the time of the visa application or the MODL in force at the time of its decision, whichever is most beneficial to the applicant.  In this respect the Tribunal has considered both the MODL instruments IMMI 11/033 and IMMI 10/025.  The applicant's nominated skilled occupation is not included in either instrument.   The applicant agreed with this assessment at the previously constituted Tribunal hearing and the submissions received in relation to this review do not contest this.

43. Therefore the Tribunal finds that the skilled occupation nominated by the applicant is not a migration occupation in demand that is specified by an instrument in writing as required by r.1.15H and subregulation 2.26AA(7).

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

    Part 6B.8 – Designated Language Qualifications

45. 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 translator in a designated language.  Designated languages are specified by the Minister. 

46. The applicant has provided to the department (at folio 16) the official transcript of his Bachelor of Business Administration awarded by the Ajou University in which the instruction was in Korean.  The delegate accepted, on the basis of this documentation, that the applicant was entitled to the award of 5 points.  At the hearing of the previously constituted Tribunal, the applicant confirmed that the language of instruction for this qualification was Korean.

47. The Tribunal notes that Korean is a designation language specified in the relevant legislative instrument: GN34.  In the submission to this Tribunal dated 18 April 2018, it was submitted that the applicant is entitled to 5 points under this part.

48. Therefore, the applicant is entitled to 5 points under this part.

    Part 6B.9 – Study in regional Australia or a low-population growth metropolitan area qualifications

49. 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.

50. The information before the Tribunal provided by the applicant to the Tribunal is that he completed his qualification at the RMIT University in Melbourne in postcode 3000.  Further, in his visa application, the applicant recorded his residential postcodes since arriving in Australia as 3204, 3163 and 3000.  The Tribunal notes that these Melbourne postcodes are not gazetted as a ‘Postcode located in Regional and Low Population Growth Metropolitan Areas’.  This has not been contested in any submissions to this Tribunal.  Therefore, the applicant is entitled to no points under this part.

    Part 6B.10 – Partner Skill Qualifications

1. 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.  At the hearing of the previously constituted Tribunal, the applicant said his wife (spouse) is not also an applicant for one of the specified skilled visas.  No submissions or supporting evidence has been provided to this Tribunal that disputes this.

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

   Part 6B.11 – State or Territory Nomination Qualifications

3. 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.  As the applicant has not applied for a 176, 475, 487 or 886 visa the applicant is entitled to no points under this part.

   Part 6B.12 – Designated Area Sponsorship Qualifications

4. 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.  As the applicant has not applied for a 475 or 487 visa he is entitled to no points under this part.

   Conclusion on points

5. 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  20 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  0 points

   Designated language qualifications  5 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  115 points

6. At the time of the delegate’s assessment of the points criteria the pass mark was 120 points: Legislative Instrument IMMI 12/017.  The applicant has therefore not achieved the qualifying score to pass the points test.

7. As noted above, under r.2.26AB, persons who apply for a points tested General Skilled Migration visa between 1 July 2011 and 31 December 2012 who are in a specified class of persons and whose assessed score under Schedule 6B is less than the applicable pass mark may also be assessed against Schedule 6C to determine whether he has the qualifying score. As the applicant applied for this Subclass 885 (Skilled – Independent) visa on 11 June 2011, he is not part of the relevant class of persons specified in the relevant Legislative Instrument and is therefore not eligible to also be assessed under Schedule 6C. The Tribunal has arrived at the conclusion that the applicant is not eligible to be assessed against Schedule 6C notwithstanding that the delegate assessed the applicant under both Schedule 6B and Schedule 6C.

8. The submission to this Tribunal dated 18 April 2018 submits that the applicant is entitled to 115 points and that this is the number of points he relied upon before the previously constituted Tribunal.  The submission concedes that the applicant is unable to achieve the required 120 points due to his continuing inability to obtain the standard of proficient English.

9. For the above reasons, the applicant is entitled to a maximum of 115 points under the points test.  At the relevant times the pass mark was 120 points.  Accordingly the applicant has failed to achieve the qualifying score required to pass the points test and therefore does not meet cl.885.221 which is a prescribed criterion for the grant of a Subclass 885 visa.  As this is the only relevant subclass in this case, the decision under review will be affirmed.

10. There is no evidence before the Tribunal to indicate that the secondary applicants meet the primary criteria for the grant of the visa.  Rather, their entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they each meet any additional visa criteria applicable.  Given the Tribunal's finding that the applicant does not meet the criteria for the grant of the visa, and given the lack of any claims or evidence to indicate that the secondary applicants meet the primary criteria for the grant of the visa, it follows that the secondary applicants are also not eligible for the visa.

    Request for referral for Ministerial Intervention

11. While the applicants are not eligible for a grant of Skilled (Residence) (Class VB) visas for the preceding reasons the Tribunal, having regard to the circumstances of the applicants’ case and in particular the Australian citizenship of two of the children of the primary review applicant and his wife, and having considered the current ministerial guidelines relating to the Minister's discretionary power under s.351 set out in PAM3 'Minister's guidelines on ministerial powers’ and the Tribunal Guideline – 15 titled ‘Referrals for Ministerial Intervention’, considers there are circumstances warranting further investigation by the department and, subject to these investigations, may be brought to the Minister's attention.

12. In addition to the submission from the applicants’ representative, a number of supporting letters[1] and documents were provided to the Tribunal which will be forwarded to the department to assist in its consideration.  In summary these include:

    [1] Some of these have been provided multiple times.

    ·A copy of the certification of Australian Citizenship granted to Soo Yeon Ji (born 10 May 2006) on 24 May 2016;

    ·A copy of the certification of Australian Citizenship granted to Joo Yeon Ji (born 10 May 2006) on 24 May 2016;

    ·A letter of support from the Mr Tim Smith, Federal Member for Goldstein;

    ·Nineteen letters of personal support from friends, a family member, community members, their family doctor, and staff at the Royce Hotel;

    ·Letters of support from the Parish Administrator of the Ormond Uniting Church who writes of the third named applicant’s leadership in a Koran playgroup based at the church, from the Church Council Secretary regarding the family’s church membership; and from the Parish Minister;

    ·A letter of support from the Principal of Ormond Primary School which the applicant’s three children attend, along with copies of their school reports and their enrolments at the school;

    ·A letter of support from the someone (position not identified) from the McKinnon Kindergarten;

    ·A letter from the applicant’s employer, Royce Hotel recording his employment as a housekeeper for 7 years;

    ·Copies of the applicant’s taxation ‘Notice of Assessment’ for the years ending 2012, 2013 2014, 2015, 2016 and 2017;

    ·A documenting recording the applicant’s 25 attempts at both the IELTS and Pearson Academic English tests; and

    ·Nineteen photographs of the applicant’s children;

13. The Tribunal accordingly considers there may be unique or exceptional circumstances in this case such that may bring Australia’s obligations as a party to the Convention on the Rights of the Child into consideration. In the Tribunal’s view, the Australian citizenship of two of the applicant’s three dependent children may constitute a ground for Ministerial Intervention and so refers the matter to the Department for further investigation and consideration under relevant Ministerial guidelines for intervention in the public interest, pursuant to the Minister's non-compellable discretion provided for in section 351 of the Migration Act. This is, of course, a matter entirely at the Minister’s discretion.

    DECISION

14. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Karen Synon
    Member