Khullar (Migration)

Khullar (Migration) [2022] AATA 1948 (10 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Lovepreet Khullar
CASE NUMBER:  2000216
HOME AFFAIRS REFERENCE(S):          BCC2018/6135260
MEMBER:Warren Stooke AM
DATE:10 June 2022
PLACE OF DECISION:  Melbourne
DECISION:
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 10 June 2022 at 6:32pm

CATCHWORDS
MIGRATION – Skilled - Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled - Independent) – production and control engineer – points test score – some points claimed without requirements fulfilled – some requirements fulfilled after application made – misrepresentation by non-registered agent – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15D, 1.15I, 2.26AC, Schedule 2, cl 189.214, Schedule 6D
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2019 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s 65 of the Migration Act 1958 (Cth) (the Act). This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.
The applicant was invited to apply for the visa on 11 December 2018 and applied for the visa on 13 January 2019 nominating the skilled occupation of Plant and Control Engineer – ANZSCO Code: 233513.
The criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy cl 189.214 because the points score of 55 did not meet the required points score of 80.
The applicant appeared before the Tribunal on 9 June 2022 to give evidence and present arguments. Evidence was also provided by Mr Singh, a friend of the applicant.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that his application had been rejected because there were some points that were claimed for an Australian Professional year and Australian employment.
The applicant stated that he provided a copy of the delegate’s decision to the Tribunal with his application for review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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’.
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).
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 IMMI 18/051. In the present case, the applicant nominated the occupation of Production and Control Engineer – ANZSCO Code: 233513.
The applicant provided evidence that he received an invitation to apply for a 189 Visa on 18 December 2018 and that the agent lodged the application on 13 January 2019.
The Tribunal asked the applicant if it was correct that he required 80 points to satisfy the points score for the grant of a Skilled Independent (Permanent) (class SI) visa and the applicant responded: “Yes that is correct”.
The Tribunal confirmed with the applicant that he undertook an IELTS English language test on 25 May 2017 with an overall score of 6.0 and that the applicant undertook a PTE Test on 23 August 2019 with a test score of 90. The Tribunal asked the applicant if he understood that the PTE English language test of 23 August 2019 was after the date of application and the applicant responded: “No, I did not understand”.
The applicant stated that his work experience overseas was not exactly with Control Engineering.
The Tribunal asked the applicant if he undertook an Australian Professional year and he responded: “No”.
The applicant stated that his Australian employment was operating a glass cutting machine and he was asked if he had experience in Plant Control Engineering and he responded: “No”.
The applicant confirmed to the Tribunal that he graduated from BR Ambedkar National Institute in India with a bachelor’s degree in Science, Business and Technology, with a major in instrumentation and control engineering, from 11 Jul 2012 to 11 Jun 2016.
The applicant stated that he enrolled in an MBA course at the Kaplan Business School in November 2018 and that he discontinued enrolment on the advice of his agent, whom he claimed advised that it would be most cost effective to enrol in the course after he obtains Permanent Residency.
The applicant stated that he has no formal qualifications from study in Australia.
The applicant stated that he has a credentialled community language in Punjabi, which he obtained after he lodged his visa application on 13 January 2019. In this regard, the applicant stated that he had been assessed on his NAATI letter that was issued on 11 April 2019, after the date of application.
The Tribunal asked the applicant if he had been living in a Regional area and he responded: “No”.
The Tribunal asked the applicant if he would agree whether he had met the required 80 points score at the time of application and he responded: “Not at that time”.
The applicant stated that he could not get a job on a bridging visa of less than two years in his preferred occupation of Plant and Control Engineering and that he decided to study an MBA to upgrade his skills before his agent persuaded him to not undertake the studies at that time.
The applicant stated that the application was totally handled by his agent and that she had misrepresented the process and information required of him. He stated that he provided an IELTS test and Skills assessment when she asked for this information, after the application had been submitted, which she had stated could be uploaded after the application.
The applicant stated that he is currently engaged in a driving job and that he tried to get a job in Engineering, but the visa was an issue.
The applicant stated that the agent was not registered and that he informed Mr Singh of this issue and pre-empted him from suffering a similar outcome to himself.
Witness – Mr Singh
The witness stated that the applicant was totally misguided by the representative and that he was saved from this scam by the experience of the applicant. He stated that the representative advised the applicant he needed to put in a application to get an invitation and that the applicant provided documentation and participated in consultations with the agent.
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
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.
At the time of invitation on 11 December 2018 the applicant was aged 26 years. Therefore, the applicant is entitled to 30 points under this part.
Part 6D.2 – English language qualifications
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 evidence that he undertook a IELTS English language test on 25 May 2017 with an overall score of 6.0.
Further, the applicant provided evidence that he undertook a PTE English language test on 23 August 2019 with a score of 90, however, as the test was taken after the lodgement of the application on 13 January 2019, the test score is not considered for the purposes of the points score assessment.
As the score of the applicant with the 25 May 2017 IELTS test score is not within the band set out in 6D22 (proficient English as defined in reg 1.15D) the applicant does not qualify for any English language points under this part.
Therefore, the applicant is entitled to 0 points under this part.
Part 6D.3 – Overseas employment experience qualifications
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.
The applicant has not provided any evidence of previous experience in the occupation of Plant and Control Engineer – ANZSCO Code: 233513 overseas. As such, the applicant does not satisfy the criteria for the award of points for Overseas employment experience qualifications.
As the applicant has made no claims and provided no evidence of Overseas employment experience, the applicant does not satisfy the criteria for the award of points for Overseas employment experience.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.4 – Australian employment qualifications
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.
As the applicant has made no claims and provided no evidence of Australian employment qualifications in his application of 13 January 2019, the applicant does not satisfy the criteria for the award of points for Australian employment experience.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.5 - Aggregating points for employment experience qualifications
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.
The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is 20 points.
As the applicant has made no claims and provided no evidence of Australian employment qualifications, the applicant does not satisfy the criteria for the award of points for Australian employment experience.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.6 – Australian professional year qualifications
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.
As the applicant has made no claims and provided no evidence of completing a Professional Year the applicant does not satisfy the criteria for the award of points for Australian Professional Year qualifications.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.7 – Educational qualifications
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.
The Tribunal was provided with confirmatory documentation that the applicant was granted a bachelor’s degree in Science, Business and Technology with a major in instrumentation and control engineering at the BR Ambedkar National Institute in India from 11 Jul 2012 to 11 Jun 2016. As such, the applicant satisfies 6D72 (b) with the award of at least a bachelor qualification, by another institution, that is of a recognised standard (15 points).
Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
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.
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.
Therefore, the applicant is entitled to no points under this part.
Part 6D.8 – Australian study qualifications
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.
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.
Therefore, the applicant is entitled to no points under this part.
Part 6D.9 – Credentialled community language qualifications
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.
The applicant stated that he has a credentialled community language in Punjabi, which he obtained after he lodged his visa application on 13 January 2019. In this regard, the applicant stated that he had been assessed on his NAATI letter that was issued on 11 April 2019, after the date of application.
The Tribunal is satisfied that the applicant did not provide evidence of meeting the ‘Credentialled community language qualifications’ requirement specified under Part 6D.9 before the time of the invitation to apply for this visa.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.10 – Study in designated regional area qualification
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 was in a designated regional area and the applicant undertook the course of study while living in a designated regional area. Distance education does not qualify as study for these purposes.
The applicant made no claims and provided no evidence of meeting the specialist education qualification requirement specified under Part 6D.10 before the time of the invitation to apply for this visa.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.11 – Partner qualifications
Ten points may be awarded under this Part if the applicant does not have a spouse or de factor 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.
The applicant stated that he did not have a partner and that the agent had claimed points for a partner relationship.
On the basis of the evidence the Tribunal is satisfied that the applicant is not able to claim points for a partner relationship under Part 6D.11 before the time of the invitation to apply for this visa.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Part 6D.13 – Designated regional area nomination or sponsorship qualifications
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.
Accordingly, no points were awarded under this criterion.
Therefore, the applicant is entitled to no points under this part.
Non-Registered Agent
The applicant has claimed that the agent he engaged to assist in his visa process was not registered and had made false claims in the application that had not been in accordance with the information provided by the applicant.
As discussed at hearing, the applicant needs to raise these issues directly with the Department through the Office of Migration Agents Registered Authority [Contact us (mara.gov.au)]

Whilst the Tribunal empathises with the circumstances pertaining to the advice and process concerning the lodgement of his application for a Skilled visa, ultimately the responsibility is with the applicant. However, it is apparent to the Tribunal that the applicant’s migration intentions have been adversely impact by the alleged participation of an unregistered migration agent. As such, the Tribunal has recommended to the applicant that he needs to seek advice concerning his future options to address these circumstances with a registered agent, as the Tribunal does not provide advice on these matters.
Conclusion on points
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  0 points
6D.5 - Aggregated employment  0 points
6D.6 - Australian professional year  0 points
6D.7 - Educational  15 points
6D.7A – Specialist educational  0 points
6D.8 - Australian study  0 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  0 points
6D.13 - Designated regional area nomination or sponsorship qualifications 0 points
Total points  45 points
The applicant’s assessed score under the points system is therefore 45 points.
At the time of the delegate’s assessment the pass mark was 80 points for the nominated skilled occupation of Plant and Control Engineer – ANZSCO Code: 233513 as designated in Legislative Instrument IMMI 18/051 of the Register of Instruments - Skilled visas. The applicant, with a score of 45 has therefore not achieved the qualifying score of 80 to pass the points test.
At the time of the delegate’s assessment the pass mark was 80 points: Legislative Instrument IMMI 18/051. The applicant therefore has not obtained the qualifying score of 80 to pass the points test.
The Tribunal finds that the applicant does not satisfy cl 189.214.
It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 Skilled - Independent (Permanent) (Class SI) visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.
Warren Stooke AM
Member

[2022] AATA 1948

10 June 2022

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Immigration

Administrative Law

Statutory Interpretation

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