Khan (Migration)

[2023] AATA 243

Khan (Migration) [2023] AATA 243 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mehr Ali Khan
Ms Noreena Khan

CASE NUMBER:  1933247

HOME AFFAIRS REFERENCE(S):          BCC2019/183623

MEMBER:Antonio Dronjic

DATE:24 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first named applicant Skilled Nominated (Permanent) visa.

The Tribunal does not have jurisdiction in respect of the second named applicant.

Statement made on 24 January 2023 at 11:43am

CATCHWORDS
MIGRATION – Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 (Skilled - Nominated) – motor mechanic – points test – Australian work experience – some work at less than required minimum 20 hours per week – application for different subclass visa in progress – member of family unit – second applicant not in migration zone when application made, with no jurisdiction to review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 93, 94, 96(2), 338(2), 347(2)(a), (3), 350
Migration Regulations 1994 (Cth), rr 1.15I, 2.26A(6), 2.26AC, Schedule 2, cl 190.214, Part 6D.4

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 19 November 2019 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 (the applicant) was invited to apply for the visa on 24 January 2019 and applied for the visa on the same day. 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 delegate concluded that the applicant was entitled to 60 points and not 65 points as stated in the invitation to apply for this visa because the applicant’s claim for five points based on his Australian work experience was not accepted.

4. The applicants sought review of the delegate’s decisions on 22 November 2019 and with their applications submitted a copy of the primary decision record.

5. On 30 November 2022, the Tribunal wrote to the applicants advising them that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicants to attend a video hearing on 24 January 2023.

6. On 20 January 2023, the applicant submitted additional documentary evidence in support of the review application. The list of documents submitted to the Tribunal is attached to this decision record as Attachment A.

7. The applicant appeared before the Tribunal on 24 January 2023 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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’.

9. 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).

10. The Tribunal note that, according to the relevant legislative instruments, the pass mark remained the same (65 points) at the time of the delegate’s assessment and at the time of the Tribunal’s assessment.

11. 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 Motor Mechanic (ANZSCO 321211).

    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

12. 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.

13. At the time of invitation, the applicant was aged not less than 25 years and under 33 years. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

14. Points are available under this Part based on the applicant’s level of English language proficiency at the time of invitation to apply for the visa.

15. At the time of invitation to apply for the visa, the applicant submitted a Pearson PTE Academic English test dated 14 December 2018, evidencing the proficient level of English language.

16. Therefore, the applicant is entitled to 10 points under this Part.

    Part 6D.3 – Overseas employment experience qualifications

17. 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.

18. The applicant made no claims and provided no evidence that he was employed in a skilled occupation for at least 36 months in the 10 years immediately before receiving the invitation for this visa application. Accordingly, no points were awarded under this criterion.

    Part 6D.4 – Australian employment qualifications

19. 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.

20. For Schedule 2 criteria and the points tests in Schedules 6D, the term ‘employed’ is defined by reg.2.26A(6) as ‘engaged in an occupation for remuneration for at least 20 hours weekly’.

21. In the applicant’s expression of interest and subsequent visa application, the applicant claimed that he was employed in Australia in his nominated occupation or a closely related occupation for a period totalling at least 12 months in the 10 years immediately before the time he was invited to apply for the visa, on 24 January 2019.

22. Based on the evidence before it, the Tribunal accepts that the applicant worked in Australia in his nominated occupation at All Right Mechanical Pty Ltd from 26 June 2017 to February 2018 for at least 20 hours per week.

23. In his written statement provided to the Tribunal on 20 January 2023, and his oral evidence, the applicant conceded that, during the nine months period of employment as Motor Mechanic at an Australian business, Stallion Motors, he worked below the required minimum of 20 hours per week. He claims in his statement that he was not aware of this requirement and that neither the TRA nor his than migration agent informed his of this requirement.

24. The applicant provided evidence of additional work experience in Australia obtained after the time he was invited to apply for a Subclass 190 visa. The Tribunal explained that any Australian work experience obtained after he was invited to apply for this visa could not be considered for the purposes of the points test.

25. The applicant gave evidence that he subsequently applied for a Subclass 491 visa and is currently waiting for the outcome of that application.

26. Based on the evidence before it, the Tribunal is not satisfied that the applicant had 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 time of invitation to apply for the visa.

27. Therefore, subject to consideration of Part 6D.5, the applicant is not entitled to points under this part.

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

28. 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.

29. As the applicant made no claims or provided evidence for both Australian and offshore employment experience, he is not entitled to any points under this part.

    Part 6D.6 – Australian professional year qualifications

30. 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.

31. The applicant made no claims and provided no evidence that he completed a professional year in Australia. Accordingly, no points were awarded under Part 6D.6 of Schedule 6D to the Regulations.

    Part 6D.7 – Educational qualifications

32. 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.

33. The applicant provided evidence of completing Diploma of Automotive Management at North Melbourne College between 13 January 2015 and 12 January 2016.

34. The Tribunal is satisfied that the applicant met the requirements for the award of a diploma by an Australian education institution. Accordingly, 10 points were awarded under this criterion.

    Part 6D.7A – Specialist educational qualifications

35. Points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the requirements for the award of a specialist educational qualification, as defined in reg 2.26AC(5A). The applicant must satisfy the Minister that they have met the requirements for the award of a masters degree by research, or a doctoral degree, which included at least 2 academic years of study at an Australian educational institution in a field of education specified in the relevant instrument.

36. The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.7A before the time of the invitation to apply for this visa. Accordingly, no points were awarded under this criterion

    Part 6D.8 – Australian study qualifications

37. Five points may be awarded under this part if, at the time of invitation to apply for the visa, the applicant met the Australian study requirement, as defined in reg 1.15F of the Regulations. To meet the Australian study requirement, the applicant must satisfy the Minister that they have completed 1 or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a registered course or courses, for which all instruction was in English. The applicant must have undertaken the courses in Australia while holding a visa authorising study and completed them in a total of at least 16 calendar months as a result of a total of at least 2 academic years study.

38. The applicant submitted evidence of completing a Certificate III in light vehicle mechanical technology, Cert IV in Automotive Management and Diploma of Automotive Management, all completed at North Melbourne College in Australia.

39. Based on the evidence before it, the Tribunal is satisfied that the applicant completed one or more degrees, diplomas or trade qualifications for award by an Australian educational institution as a result of a course or courses that met the requirements of reg 1.15F. Accordingly, 5 points were awarded under this criterion.

    Part 6D.9 – Credentialled community language qualifications

40. 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.

41. The applicant made no claims and provided no evidence that he was the holder of a qualification awarded or accredited by a body specified by the Minister at the specified standard at the time of invitation to apply for the visa. Accordingly, no points were awarded under this criterion.

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

42. 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.

43. The applicant made no claims and provided no evidence that he met the study in regional Australia or a low-population growth metropolitan area qualification. Accordingly, no points were awarded under this criterion.

    Part 6D.11 – Partner qualifications

44. 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.

45. The applicant made no claims and provided no evidence that he meets the partner skill qualifications. Accordingly, no points were awarded under this criterion.

    Part 6D.12 – State or Territory nomination qualifications

46. 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.

47. The applicant in this case was invited to apply for a Subclass 190 visa, and the nomination of the state of New South Wales has not been withdrawn, 5 points were awarded under this criterion.

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

48. 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

49. 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  10 points

    6D.3 - Overseas employment experience  0 points

    6D.4 - Australian employment experience  0 points

    6D.5 - Aggregated employment  0 points

    6D.6 - Australian professional year  0 points

    6D.7 - Educational  10 points

    6D.7A – Specialist educational  0 points

    6D.8 - Australian study  5 points

    6D.9 - Credentialled community language  0 points

    6D.10 - Study in designated regional area qualification        0 points

    6D.11 - Partner qualifications  0 points

    6D.12 - State or Territory nomination  5 points

    6D.13 - Designated regional area
    nomination or sponsorship qualifications   0 points

    Total points  60 points

50. The applicant’s assessed score under the points system is therefore 60 points.

51. At the time of the delegate’s assessment the pass mark was 65 points: Legislative Instrument LIN 19/210. The applicant has therefore not achieved the qualifying score to pass the points test.

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

52. At the time of both the delegate’s assessment and the Tribunal’s assessment the pass mark was 65 points. The applicant has therefore failed to achieve the qualifying score to pass the points test.

53. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s 338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s 347(2)(a) and (3).

54. At the time the application was lodged at the Tribunal, on 22 November 2019, the second named applicant was not in Australia. The Tribunal finds that the second named applicant was not in the migration zone at the relevant time. As such, the application for review is not an application properly made under s 347 and it follows that the Tribunal does not have jurisdiction in this matter in respect of the second named applicant.

55. For the above reasons, the applicant is entitled to a maximum of 60 points under the points test. As the applicant’s score is less than the qualifying score, the applicant does not satisfy cl 190.214. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.

    DECISION

56. The Tribunal affirms the decision not to grant the first named applicant Skilled Nominated (Permanent) visa.

57. The Tribunal does not have jurisdiction in respect of the second named applicant.

    Antonio Dronjic
    Member

    
    

    Attachment A: Document List

    ·Applicant statement titled AAT Final Reply from Mr Mehr Ali Khan undated.

    ·Annex A: Emails between Mr Khan and Mrs Paterson from Trades Recognition Australia dated 14 September – 30 November 2018 and TRA Job ready Program Outcome certificate dated 30 November 2018.

    ·Annex B1: Payslips from Wirraway Motor Company Pty Ltd dated 20 November 2019 – 04 February 2020.

    ·Annex B2: Payslips from Smiths of Geelong dated 10 February 2020 – 19 July 2020.

    ·Annex C: Email from Mr Khan to Mrs Peterson from Trades Recognition Australia dated April 27 2018.