Kaur (Migration)

[2022] AATA 332

Kaur (Migration) [2022] AATA 332 (11 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Salwinder Kaur
Mr Dalbir Singh

CASE NUMBER:  1915820

HOME AFFAIRS REFERENCE(S):          BCC2018/2225222

MEMBER:Wan Shum

DATE:11 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

·cl 190.214 of Schedule 2 to the Regulations.

Statement made on 11 February 2022 at 12:17pm

CATCHWORDS

MIGRATION – Skilled Nominated (Permanent) visas – Subclass 190 - Skilled – Nominated – points based visa – occupation of Baker – educational qualifications – evidence of work experience – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 48, 65, 93, 94, 350
Migration Regulations 1994, Schedule 2, cl 190.214; Schedule 6D, rr 1.03, 1.15, 2.26, 2.27, 2.72

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 6 June 2019 to refuse to grant the applicants 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 (the applicant) was invited to apply for the visa on 9 May 2018 and applied for the visa on 21 May 2018. 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 applicants were represented in relation to the review by a migration lawyer.

4. The applicant appeared before the Tribunal on 19 November 2021 to give evidence and present arguments by videoconference using MS Teams from India. The Tribunal also received oral evidence from the second named applicant, Mr Amandeep Singh and Mr Ramjee Singh by video. The representative was present by video from a different location throughout.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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’.

7. 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).

8. 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). In the present case, the applicant nominated the occupation of Baker which is specified by IMMI 18/051 as a skilled occupation.

9. According to the submissions provided by the representative, the applicant first arrived in Australia in 2009 as the holder of a Student (Subclass 500) visa. As a student visa holder, the applicant completed the following courses:

   ·Certificate III in Food Processing at Della International College

   ·Diploma of Management at Della International College

   ·Certificate IV in Business at Australian Education Academy Pty Ltd

   ·Diploma of Business at Australian Education Academy Pty Ltd

   ·Certificate IV in Hospitality (Patisserie) at Future Academy Pty Ltd

10. The applicant lodged an application for a Temporary Work (Skilled) (Subclass 457) visa, which was subsequently granted on 2 September 2013 for a 4-year period. This visa was connected to an approved sponsorship and nomination application by Timryl Pty Ltd trading as Universal Bakery Tullamarine (Universal Bakery).

11. From information publicly available in relation to published notices in respect of winding up and insolvency,[1] an application for the winding up of Timryl Pty Ltd was commenced on 27 September 2013 by another company. The company was later deregistered on 1 January 2017. This was the reason given for the applicant finding an alternate sponsor. The applicant was the subject of a 457 nomination as a Pastrycook at Dennis Industries Pty Ltd trading as Triple Crust Bakery (Triple Crust Bakery) approved on 27 March 2014. The applicant claims that she worked there from 1 April 2014 to 6 May 2016.

    [1] >

    According to the submissions, in 2016, the applicant lodged a Subclass 186 visa application on the basis of her continued employment at Triple Crust Bakery. It appears from the ASIC insolvency notices that Dennis Industries Pty Ltd was in liquidation from 19 July 2016. The submissions refer to the nomination and associated visa application being withdrawn after the closure of Triple Crust Bakery in 2016. The information before the Tribunal is that the Department commenced monitoring of Dennis Industries Pty Ltd and issued a notice in April 2016 concerning breaches of sponsorship obligations. Departmental records refer to the business having been sold on 3 May 2016 to new owners. The Department then cancelled the sponsorship and imposed a 12-month bar from 12 August 2016.

12. On 11 November 2016, a nomination made by Ram and Rai Pty Ltd trading as The Bakehouse Heathmont for a Pastrycook/Baker was approved in respect of the applicant. It is claimed that the applicant then commenced work for that employer.

13. In late 2016, the applicant lodged a further Student (Subclass 500) visa application which is claimed was on the advice of her previous migration agent. The application was subsequently refused and it was claimed that this was because the previous migration agent did not inform her that further information had been requested by the Department. It appears from the submission that the applicant did not wish to undertake further study but lodged the application as the family were concerned about their status in Australia, given the number of times the applicant had been required to find alternate employment.

14. In September 2017, the applicant lodged a further Subclass 457 sponsorship, nomination and visa applications in relation to her ongoing employment with The Bakehouse Heathmont. However, shortly after lodgement, the applicant’s employer ceased business operations, and in 2018 Ram and Rai Pty Ltd ceased operating The Bakehouse Heathmont. As a consequence, the associated sponsorship, nomination and visa applications were refused by the Department in 2018.

15. For some reason, despite the business no longer operating, the applicants and Ram and Rai Pty Ltd sought review of these decisions. Following the unsuccessful outcome of the nomination on review, Ram and Rai Pty Ltd then sought judicial review of the Tribunal’s decision but eventually withdrew from that matter. Given the business was not operating at the time and has not been operating to date, this was, in the Tribunal’s view, without merit and an abuse of the review system.

16. The applicant then lodged the current application for a Skilled Nominated (Subclass 190) visa on 21 May 2018 with the second named applicant named as a dependent outside Australia being barred under s 48 of the Act from lodging the application onshore due to the refusal of their 457 visa application. The applicant obtained sponsorship from the New South Wales Government in respect of her application.

17. The delegate was not satisfied that the applicant provided sufficient independently verifiable third-party evidence to support her claim of being in skilled employment with the following employers:

    ·Ram and Rai Pty Ltd

    ·Triple Crust Bakery (Dennis Industries Pty Ltd)

    ·Universal Bakery (Timryl Pty Ltd)

18. The delegate referred to the applicant’s positive skills assessment as a Baker (ANZSCO Code 351111), however, did not find it to be evidence that she had been found to have performed the full range of skills for a skilled position. The Tribunal also does not consider that a positive skills assessment of itself necessarily supports a conclusion that the applicant was employed as claimed, particularly given that payslips which the applicant herself has now confirmed contained incorrect information as to her employment were provided as evidence.

19. The delegate was not satisfied that the applicant had provided sufficient evidence to support the claim of Universal Bakery’s bankruptcy claims, nor the claim that Universal Bakery faced monetary fines for mistreatment and underpayment of their staff. The Tribunal considers the ASIC insolvency notices confirm that Universal Bakery was in liquidation from as early as 2013.

20. The delegate did not accept that the applicant had been employed as claimed on the evidence presented. Whilst the delegate accepted that the documents supported the applicant’s claims that she was remunerated, the delegate was unable to establish the skill level of the applicant’s employment because of a lack of corroborating evidence from independent third parties.

21. It is submitted that the applicant seeks to demonstrate that she has 3 years of post-qualification Australian work experience to be awarded 10 points under Part 6D.4 of Schedule 6D to the Regulations. The bulk of the hearing and evidence presented on review was focused on whether the applicant is entitled to 10 points under this Part. The Tribunal also raised a query regarding whether the applicant meets the 2-year study requirement as defined in reg 1.15F of the Regulations and is eligible to be awarded 5 points under Part 6D.8 noting that she had been awarded the Certificate IV in Patisserie on the basis of recognised prior learning.

22. The Tribunal has considered all of the evidence and has made findings against each qualification listed under Part 6D below.

    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

23. 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.

24. At the time of invitation, the applicant was aged over 25 and under 33. Therefore, the applicant is entitled to 30 points under this Part.

    Part 6D.2 – English language qualifications

25. 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. The applicant provided the results of a PTE Academic test undertaken on 20 December 2016. In this test she achieved 51 in listening, 59 in reading, 56 in writing and 75 in speaking.

26. Based on these results, the applicant has competent English but not superior English (as defined in reg 1.15EA) or proficient English (as defined in reg 1.15D).

27. She is therefore not entitled to points under this Part.

    Part 6D.3 – Overseas employment experience 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 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.

29. The applicant does not claim to have relevant overseas employment. Therefore, the applicant is not entitled to points under this Part.

    Part 6D.4 – Australian employment experience qualifications

30. 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.

31. The applicant’s nominated skilled occupation is Baker (ANZSCO code 351111). Under ANZSCO, the level of skill for this occupation is ANZSCO Skill Level 3 which is commensurate with holding an Australian Qualifications Framework (AQF) Certificate III including at least 2 years of on-the-job training, or AQF Certificate IV. At least 3 years of relevant experience may substitute for the formal qualifications listed above. In some instances, relevant experience and/or on-the-job training may be required in addition to the formal qualification.

32. On the visa application form, the applicant provided the following details of employment for claiming points:

    ·Universal Bakery in Tullamarine, Victoria, in the position of Pastrycook from 1 March 2013 to 1 February 2014

    ·Triple Crust Bakery located at 25 Rutherford Road, Seaford in the position of Pastrycook from 1 April 2014 to 6 May 2016

    ·The Bakehouse Heathmont, located at 124 Canterbury Road, Heathmont in the position of Baker from 12 November 2016 to current

33. As outlined above, all three businesses have ceased operations, with the first two listed having gone into liquidation which adds to difficulties in confirming the applicant’s claims. Furthermore, the evidence provided of the claimed employment includes various inconsistencies, which include the two sets of payslips submitted in respect of claimed employment at Triple Crust Bakery.

34. Only one of the business owners has provided evidence directly to the Tribunal regarding the applicant’s claimed employment with that business. Aside from issues with the claimed period of employment with these employers, the Tribunal must also consider whether her duties and responsibilities were of a baker/pastrycook. The Tribunal has summarised the evidence presented below.

35. On review, the applicant sought to rely only on her employment with Triple Crust Bakery (Dennis Industries Pty Ltd) and The Bakehouse Heathmont (Ram and Rai Pty Ltd), which it was claimed was at least 36 months in total. The applicant advises that she does not have any proof of employment, other than the nomination approval and copy of the employment contract with the first claimed employer. Given the limited evidence provided and the fact that the company which operated the bakery went into liquidation in 2013, as referred to in the Fair Work Ombudsman article[2] referred to by the applicant in her statutory declaration of 11 November 2021, the Tribunal does not accept that the applicant was employed as a pastrycook at Universal Bakery for the purposes of this Part.  

    [2] >

    In respect of her employment with Triple Crust Bakery, the applicant gave evidence that it was a wholesaler, and supplied a number of payslips as evidence of her employment there. The earliest payslip is from June 2014 and there are a set of payslips in this format up until May 2015 which were presented as being issued by Triple Crust Bakery and submitted to VETASSESS as part of the skills assessment application. She has also provided a copy of the PAYG payment summary for the year ending 30 June 2015 which gives the period of payment as from 17 July 2014 to 30 June 2015. Of concern to the Tribunal is that a different set of payslips from this employer was given to the Department for the Subclass 190 visa application. The Tribunal has sighted a copy of both sets of payslips on review. The applicant claims that one set was given by Mr Malcolm Dennis, the owner, and one set from Joy, the wife of the owner. On examining the payslips, the year-to-date (YTD) amounts on the set given to VETASSESS do not progressively increase as would be expected with the net pay YTD amount totalling $20,206.96 in the December 2014 copy of the payslip while the first of the May 2015 payslips has a net pay YTD total of $10,940.02. There is nothing before the Tribunal which indicates that the assessing body made any enquiries or investigated this discrepancy, and the Tribunal is not persuaded that the findings of VETASSESS that the applicant is suitable for the occupation of Baker is confirmation that she was employed as such for the purposes of its consideration of this Part.

36. The second set of payslips have the first payment date of 1 July 2015 and appear in a different format. These were given to the Department as evidence of her claimed employment with the last payment date of 27 April 2016. The other evidence provided were two PAYG payment summaries, one for the year ending 30 June 2014, dated 14 July 2014, and the second one for the year ending 30 June 2015, dated 23 July 2015. The payment period listed in the first of the PAYG payment summaries is from 28 April 2014 to 30 June 2014, with the gross payments totalling $8,292 and in the former PAYG, the payment period is from 17 July 2014 to 30 June 2015 with gross payments totalling $54,936.

37. On review, the Tribunal was provided with a copy of the applicant’s bank account statements from 19 March 2014 to 18 June 2016 which reflect regular debits from 2 May 2014 of $846.54 with the description ‘triple crust’ appearing on the bank account statements. From 21 July 2014 the amounts decrease to $841.54, with the last payment received on 6 May 2016.

38. Given the inconsistencies between the two sets of payslips and the applicant’s bank statements in respect of dates and amounts, the Tribunal does not consider the payslips reliable. It has thus considered the other evidence presented which includes statutory declarations from two parties who claimed to have also been sponsored by Dennis Industries Pty Ltd and a statement undated from Mr Matthew Thompson, a former employee, and screenshots of text messages sent between the head baker and the second named applicant dated 11 July and 21 November 2014. The content of these messages reflect the second named applicant enquiring as to whether his wife, the applicant, has finished work yet.

39. The statutory declarations made by Mr Amandeep Singh Thind signed and dated 20 May 2020, who also gave oral evidence at the hearing by videoconference, and Mr Balbir Singh signed and dated 15 May 2020 include a statement that the contents of the statutory declarations are only for use in support of their former co-worker, being the applicant. Both parties relevantly state that they had each worked full-time as a pastrycook at Triple Crust Bakery as 457 visa holders, with Mr Amandeep Singh Thind giving the period of employment from February 2014 to May 2016 while Mr Balbir Singh stated that he commenced in April 2013. Both declare that the applicant had also worked full-time as a baker/pastrycook from April 2014 to May 2016, when the employer ceased operating the business. Both parties state that they observed the applicant undertaking all of the duties of a Baker and then list the duties which closely match those that appear in ANZSCO for the unit group of Bakers and Pastrycooks.

1. The information before the Tribunal is that Dennis Industries Pty Ltd sponsored 7 individuals for Subclass 457 visas as pastrycooks or bakers between October 2013 and July 2015 which includes Mr Amandeep Singh Thind and Mr Balbir Singh. It appears that they were both identified for Employer Nominations which were lodged by Dennis Industries Pty Ltd in April 2016, which is shortly before it was claimed that Dennis Industries Pty Ltd ceased operating the bakery.

2. Departmental records confirm that Mr Amandeep Singh Thind was granted a Subclass 457 visa from October 2013 and indicate that he was contacted by a Department officer in around April or May 2016 regarding his employment at Triple Crust Bakery. Mr Amandeep Singh Thind gave oral evidence that the applicant did work there with him, although the Tribunal notes that his shifts usually commenced from noon till 7 or 8 pm with his days off on Wednesday and Thursday, whereas the applicant claimed that she worked from 7 or 8 am to 3 or 4 pm. Mr Singh Thind told the Tribunal that payslips were given by email so it does not appear that he needed to request them as was the applicant’s claim in respect of her payslips, although when asked if they were sent regularly he said sometimes there was a gap. He initially denied that he was interviewed by Fair Work but later recalled that the interviews occurred about 5 months before the business was shut.

3. The ASIC published notices reflect that Dennis Industries Pty Ltd was in liquidation on 19 July 2016. According to Departmental records, there were allegations received by the Department in respect of the company and also that a breach notice was issued which eventually led to sponsorship cancellation and a bar of 12 months. It is further recorded that the bakery business had been sold to another company on 3 May 2016 and that the new company did not engage any of the former employees.

4. While the Tribunal considers that some of the information provided regarding employment at Triple Crust Bakery is unreliable, such as the payslips, there is other information which supports the applicant’s claims. The Tribunal accepts that she did work as a pastrycook at Triple Crust Bakery. As to the period of employment, as the applicant did not receive any payments of wages until 2 May 2014, and was paid roughly on a weekly basis, the Tribunal finds that her first payment of wages would most likely have been for work from late April 2014. In terms of when she ceased employment, the Tribunal notes that she has given two dates of 3 May 2016 and 6 May 2016 in her resume and on the visa application form respectively. As the last payment of wages was received by the applicant into her bank account on 6 May 2016, the Tribunal does not accept that this was the applicant’s last day of employment as wages appear to have been paid after the period of work. In addition, the information obtained by the Department was that the business had been sold on 3 May 2016.

5. On the information presented, the Tribunal is prepared to accept that the applicant was employed as a baker/pastrycook for a period of 24 months at Triple Crust Bakery (from late April 2014 to late April 2016).

6. The evidence in respect of her claimed employment at The Bakehouse Heathmont, operated by Ram and Rai Pty Ltd, includes letters from Mr Ramjee Singh, the employer, dated 19 and 20 September 2017 and a statement dated 12 November 2021; letter from Ms Zandalee Davis, a former employee, dated 30 November 2021; letter from Ms Kellie Black, the then owner of a neighbouring business, dated 9 November 2021; letter from Ms Monica Pham, from A&K Pty Ltd dated 26 November 2021 and KPG Taxation dated 3 December 2021 regarding late superannuation payments. In addition, the Tribunal was provided with copies of invoices issued by A&K Pty Ltd, one of the suppliers that the applicant claimed to have dealt with during her employment. The invoices provided appear to have been initialled or signed by the applicant, apparently upon receipt of the goods, and date from 31 July 2017 to 6 November 2017. The Tribunal has also been provided with copies of payslips up till December 2017 and copies of forms completed for superannuation shortfall payments made by Ram and Rai Pty Ltd. The superannuation payments were made for the quarters ending 31 December 2016 to 31 December 2017. 

7. According to the earlier letters from Mr Singh as the employer, the applicant commenced work as a baker at The Bakehouse Heathmont from 12 November 2016 to 19 September 2017, and outlines her duties and tasks which accord with the ANZSCO description for this occupation. During the hearing, Mr Singh gave evidence that he operated the bakery from July/August 2016 until May 2018 when he closed the bakery because of financial hardship and mentioned a dispute with the landlord. He stated that he employed 3 or 4 others and that he paid wages in cash.

8. While Mr Singh claims that the applicant continued to work for him until May 2018, the Tribunal notes that the payslips provided are only up to December 2017. In addition, the payslips provided reflect that superannuation expenses were calculated but it appears on the information provided, which includes a letter from KPG Taxation advising same, that superannuation contributions were not made by the employer until 2019. The Tribunal has some concerns about the accuracy of the payslips, but even then notes that they were only provided up till December 2017 and not until May 2018. The copies of forms completed for superannuation shortfall payments made by Ram and Rai Pty Ltd and the corresponding superannuation guarantee document provided to show that the superannuation contributions have since been made to the ATO reflect that superannuation contributions were only made for the quarters ending 31 December 2016 to 31 December 2017. The Tribunal would have expected that if the applicant was employed until May 2018, that a shortfall contribution would also have been made for 1 January to 31 March 2018. Given that it was not, the Tribunal does not consider that there is sufficient corroborating evidence that the applicant remained employed with Ram and Rai Pty Ltd after December 2017. As outlined above, the Tribunal had some concerns about Mr Singh’s bona fides, noting that he had continued to pursue approval of the nomination when Ram and Rai Pty Ltd was no longer approved as a standard business sponsor (and not even operating a business since 2018) and could therefore not meet one of the essential legislative requirements for approval under reg 2.72.

9. While not without some doubt, having regard to the additional evidence provided, the Tribunal is prepared to accept that the applicant was employed as a baker at The Bakehouse Heathmont from November 2016 to December 2017.

10. Departmental records indicate that the applicant held Subclass 457 visas and BVA and BVB with conditions 8107 and/or 8501. There is no information before the Tribunal that she did not comply with these conditions, and the Tribunal notes that all the claimed changes of employment involved new nomination approvals. Having regard to all the information, the Tribunal is prepared to accept that the applicant was employed for a period totalling at least 36 months in the relevant period.

11. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this Part.

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

12. 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.

13. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 10. As this is not more than 20 points, the applicant is not entitled to points under this Part.

    Part 6D.6 – Australian professional year qualifications

14. Five points are available under this Part if, at the time of invitation to apply for the visa, the applicant had completed a professional year (that is, a course specified in an instrument) in Australia in the nominated occupation or a closely related skilled occupation for at least 12 months in the immediately preceding 48 months. The relevant instrument specifies that the courses are any of the Professional Year Programs provided by particular industry bodies for accounting, computing and engineering graduates.

15. The applicant indicated that she did not complete a professional year and she is not entitled to points under this Part.

    Part 6D.7 – Educational qualifications

16. 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.

17. At the time of invitation, the applicant had met the requirements for the award of a bachelor degree by Guru Nanak University, India in November 2010. She provided evidence of having completed a 3-year degree in Arts. Having regard to the matters set out in reg 2.26AC(5), while VETASSESS has assessed the applicant’s skills as suitable for the occupation of Baker, there is no indication that VETASSESS have assessed her bachelor degree as being comparable to the educational level of an AQF Bachelor degree. Other information obtained by the Tribunal from Country Education Profiles is a Bachelor degree of 3 years or more full-time in any Division/Class from the institution at which she studied is considered comparable to the educational level of the AQF qualification of Bachelor degree. The Tribunal finds that the overseas qualification is of a ‘recognised standard’ as a Bachelor degree and the applicant is entitled to 15 points under this Part.

    Part 6D.7A – Specialist educational qualifications

18. Ten 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 master’s 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.

19. The applicant did not claim, and has not provided evidence of, having met the requirements for the award of a specialist educational qualification at the time of invitation.

20. Therefore, the applicant is not entitled to points under this Part.

    Part 6D.8 – Australian study qualifications

21. 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 term ‘completed’ is defined in reg 1.15F(2) while ‘degree’, ‘diploma’ and ‘trade qualification’ are defined in reg 2.26AC(6)). 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. The definition of academic year in reg 1.03 and relevant instrument specify an academic year is at least a total of 46 weeks, being the duration of a course or courses.

22. The applicant has provided evidence of having completed a Certificate III in Food Processing (Retail Baking) from 19 September 2009 to 26 September 2010 and Diploma of Management from 15 November 2010 to 14 October 2011, both at Della International College in Melbourne, Victoria; and a Certificate IV in Business at Australian Education Academy Pty Ltd from 9 January 2012 to 6 July 2012. She was awarded a Certificate IV in Hospitality (Patisserie) from Future Academy Pty Ltd based entirely on recognised prior learning.

23. The term ‘trade qualification’ is defined in reg 2.26AC(6), as follows:

    (a)   an Australian trade qualification obtained as a result of the completion of:

    (i)       an indentured apprenticeship; or

    (ii)      a training contract;

    that is required by State or Territory industrial training legislation or a relevant Federal, State or Territory industrial award and involves:

    (iii)part-time formal training at a technical college or a college of technical and further education; and

    (iv)employment within the meaning of:

    A.  an industrial award under a law of the Commonwealth or of a State or Territory; or

    B.  a law of a State or Territory dealing with commercial or industrial training; or

    (b)   a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group IV in the ASCO; or

    (c)   a qualification, under the Australian Qualifications Framework, of at least the Certificate III level for a skilled occupation in Major Group 3 in ANZSCO.

24. In submissions received after the hearing, it was submitted that the applicant had completed a trade qualification on the basis of meeting the definition in reg 2.26AC(6)(c), having completed a Certificate III in Food Processing (Retail Baking – Cake and Pastry) at Della International College from 19 September 2009 to 26 September 2010. The Tribunal accepts that the applicant completed this qualification having regard to the letter confirming her enrolment and subsequent completion, and the academic transcript provided.

25. The Tribunal finds that this course was registered for the duration of 48 weeks based on CRICOS records from 2009 in relation to the Certificate III in Food Processing at Della International College (course code 056985B).

26. The Tribunal finds that the applicant completed a diploma course at the same college from 15 November 2010 to 14 October 2011, having regard to evidence provided of the award of a Diploma of Management. CRICOS records from 2009 in relation to the Diploma of Management in 2011 at Della International College (CRICOS course code 070452C) indicate that the course was 48 weeks’ duration.

27. The Tribunal has confirmed these details through PRISMS. The Tribunal accepts that the combined total of the Certificate III and Diploma was 96 weeks, which meets a total of at least 2 academic years’ study. Departmental movement records indicate that the applicant held student visas from 23 July 2009 to 15 March 2013, with a short gap of one month in October 2011 when she held a Bridging Visa A with condition 8105 attached. It thus finds that the applicant undertook the courses in Australia while holding a visa authorising study. There is nothing before the Tribunal which would suggest that the applicant failed to comply with visa conditions: reg 2.27D.

28. Based on the information before it, the Tribunal accepts that the applicant completed 1 Diploma qualification and 1 trade qualification as a result of a registered course or courses, for which all instruction was in English, 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.

29. As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this Part.

    Part 6D.9 – Credentialled community language qualifications

30. 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.

31. The applicant is not claiming, and she is not entitled to, points under this Part.

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

32. 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), 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. The applicant is not claiming to have undertaken study in regional Australia or a low-population growth area and is not entitled to points under this Part.

    Part 6D.11 – Partner qualifications

33. 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.

34. The applicant’s spouse or de facto partner is also an applicant for the same subclass of visa and is not an Australian citizen or permanent resident, but the English language test provided with the application indicated that he did not have competent English as defined by reg 1.15C at the time of the applicant’s invitation to apply. Therefore, the applicant is not entitled to points under this Part.

    Part 6D.12 – State or Territory nomination qualifications

35. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 190 (Skilled – Nominated) visa. The applicant in this case was invited to apply for such a visa by the New South Wales Government and is therefore entitled to 5 points under this Part.

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

36. Points are available under this Part in certain circumstances for applicants who were invited to apply for a Subclass 489 (Skilled – Regional) (Provisional) visa. The applicant in this case has not been invited to apply for such a visa and is therefore not entitled to any points under this Part.

    Conclusion on points

37. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s assessment, the number of points to be awarded to the applicant under Schedule 6D is:

    6D.1 – Age  30 points

    6D.2 – English language  0 points

    6D.3 – Overseas employment experience  0 points

    6D.4 – Australian employment experience  10 points

    6D.5 – Aggregated employment  0 points

    6D.6 – Australian professional year  0 points

    6D.7 – Education  15 points

    6D.7A – Specialist education   0 points

    6D.8 – Australian study  5 points

    6D.9 – Credentialled community language  0 points

    6D.10 – Study in regional/low-population area  0 points

    6D.11 – Partner qualifications  0 points

    6D.12 – State or Territory nomination  5 points

    6D.13 – Designated area sponsorship  0 points

    Total points  65 points

38. The applicant’s assessed score under the points system is therefore 65 points.

39. At the time of the delegate’s assessment the pass mark was 60 points. The applicant has therefore achieved the qualifying score to pass the points test.

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

1. It is also a requirement that the applicant’s score is not less than the score stated in the invitation to apply for the visa. The written invitation given to the applicant stated a score of 65 points. On the basis of the points assessment above, the Tribunal finds that the applicant has achieved the score stated in the invitation to apply for the visa.

2. For the above reasons, the applicant is entitled to a maximum of 65 points under the points test. As the applicant’s score is not less than the score stated in the invitation to apply for the visa, and not less than the qualifying score, the applicant satisfies cl 190.214, which is a prescribed criterion for the grant of the visa. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria applicable to the applicants.

   DECISION

3. The Tribunal remits the applications for Skilled Nominated (Permanent) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 190 visa:

   ·cl 190.214 of Schedule 2 to the Regulations.

   Wan Shum
   Member