Manda (Migration)

Manda (Migration) [2024] AATA 1117 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Eeswari Manda
Mr Radha Krishna Koneru
Miss Greeshna Koneru
REPRESENTATIVE:  Mrs Varanasi Radhika (MARN: 1572283)
CASE NUMBER:  2202428
HOME AFFAIRS REFERENCE(S):          BCC2018/4496493
MEMBER:Amanda Mendes Da Costa
DATE:7 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.
Statement made on 7 May 2024 at 9.09am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – points-based visa – occupation of Systems Analyst – English test results – malpractice at testing centre – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 57, 65, 93, 94, 96, 350
Migration Amendment (New Skilled Regional Visas) Regulations 2019
Migration Regulations 1994, Schedule 2, cls 189.223, 189.224; Schedule 6D; rr 1.03, 1.15, 2.26
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 16 February 2022 to refuse to grant the applicants Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) 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.
The first named applicant (the applicant) was invited to apply for the visa on11 October 2018 and applied for the visa on 15 October 2018. The criteria for the grant of a Subclass 189 - Skilled - Independent visa are set out in Part 189 - Skilled - Independent 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 189.224.
Via an internet-enabled audio-visual platform, the applicants appeared before the Tribunal on 2 May 2024 to give evidence and present arguments.
The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not conducted by video. The Tribunal was satisfied that the applicants and the Tribunal could satisfactorily see, hear, and understand each other throughout the hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing, the Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal informed the applicants that it would seek submissions from them toward the end of the Tribunal hearing on any matter they considered relevant to the review.
Although the applicants were represented in relation to the review, their representative did not attend the hearing. The applicant and second named applicant advised the Tribunal at the commencement of the hearing that they were prepared to proceed with the hearing in the absence of their representative. The Tribunal is satisfied that the third named applicant is a child and is therefore too young to participate in the hearing.
The documentation provided by the applicants for the purpose of the review include the following:
·Pearson PTE Academic Test Result Report (Registration Identification 33194578) dated 5 April 2018.
·TOEFL iBT Test Result Report (Reference Number 35174434) dated 12 January 2019.
·Pearson PTE Academic Score Report (Registration Identification 437754246) dated 6 January 2023.
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 Cartographer (ANZSCO 232213).
The Tribunal notes that the invitation to apply for the visa is dated 11 October 2018 and the score stated in the invitation is 65 points.
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, the applicant was aged 31 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.
In her visa application the applicant claimed to have proficient English. On 24 February 2020, in support of her English language claims, the applicant provided the Department with A TOEFL iBT test result dated 12 January 2019 with Test Reference Number 35174434 with the following scores:
Listening:        26
Reading:         26
Writing:           30
Speaking:       26
The TOEFL iBT Test Taker Score Report indicates that the applicant sat the test after the date of the invitation to apply for the visa (11 October 2018) and therefore it does not meet the requirements for this criterion.
On 24 February 2020, the applicant provided to the Department a Pearson PTE Academic test result dated 5 April 2018 with Registration Identification 331945782 with the following scores:
Listening:        60
Reading:         55
Writing:           61
Speaking:       64
Although the applicant took this test before the date of the invitation to apply for the visa, based on the PTE Academic test results the Tribunal is satisfied that the applicant had competent English.
On 26 January 2019, the applicant provided a Cambridge English Advanced (CAE) test result dated 26 January 2019 in support of her English language claims. This test result (dated 11 August 2018) with the Registration Identification 188J03015030, with the scores:
Listening         200
Reading:         206
Writing            193
Speaking        192
The applicant claimed that she completed the CAE test on 11 August 2018 in the United Arab Emirates (UAE). Movement records kept by the Department show that the applicant departed Australia on 10 August 2018.
The applicant provided a Form 80 declaring that she travelled from Australia to the United Arab Emirates (UAE) from 10 August 2018 to 14 August 2018. The applicant declared that her reason for visiting the UAE was a leisure trip.
On 5 December 2018 Cambridge notified the Department that the applicant’s English test results had been withheld due to malpractice at the test centre.
On 3 February 2020, the Department wrote to the applicant in a s57 Natural Justice letter advising her that it appeared she may not meet regulation 189.223 as the CAE test reference provided (188J03015030) she had provided in support of the visa application is not valid and she therefore did not meet the requirements of regulation 189.223.
Departmental records show that the test results available through the Cambridge verification site indicate that the applicant’s test scores were withheld and that the verification site has no test day photo assigned to the applicant’s test results. This raised concerns for the delegate that the correct identity procedures were not followed by the test centre and that the applicant was not the person who undertook the English test.
The delegate was further concerns that the CAE results provided by the applicant and the Cambridge verification site indicated that the test was undertaken in Amman, Jordan and not the UAE. In her decision the delegate noted that the applicant had provided no evidence to the Department of travel to Amman and claimed to have taken the test in Dubai.
On 23 September 2020, the Department sent the applicant a s57 Natural Justice letter, inviting the applicant to comment on the Department’s concerns about the authenticity of her CAE English test results.
In response, the applicant provided the following documents to the Department:
·Letter of explanation dated 6 October 2020.
·Correspondence from CAE regarding her test registration and notification that her test results were ready for download.
·Correspondence from CAE notifying her that the Department had assessed her test results.
In her letter of explanation, the applicant states that she booked the CAE test in Dubai with good intention and genuinely obtained the required score. She further explains that:
·On the day of the test her photo was taken and all of the prerequisites for the test were followed in accordance with the Cambridge test guidelines.
·Although she received emails from CAE as part of the testing process including an email from CAE advising the score verification by the Department. She did not receive any communication from CAE regarding her score being withheld.
·After realising that her test scores had been withheld, she tried to reach out to the test centre with no response. She also understood that that the onus was on the test centre to provide and comply with the rules set for them, which should not impact candidate scores.
·As she was unable to resolve the situation regarding her English test results, she sat for the TOEFL iBT test which resulted her in achieving the required score.
During the hearing, the Tribunal discussed the above information with the applicants. The applicant confirmed that she had undertaken the Cambridge English test in Dubai, UAE on 11 August 2018. She explained that she had decided to travel to Dubai to undertake the test because there was a long wait in Melbourne (3-4 months) to undertake the test and she had decided to take leave from her employment to meet a group of family and friends in Dubai where she could combine a holiday with the Cambridge test. She said that she and the second named applicant travelled directly to UAE in August 2018 where they spent four days. During this time, the applicant undertook the English test at the Cambridge centre in Dubai. The applicants told the Tribunal that they did not travel to Amann, Jordan during this trip and the applicant was adamant that she did not undertake the test in Jordan. The Tribunal notes that a case note in the Department’s file (dated 4 March 2022) states that information from the Cambridge organization confirms that the JO301 test centre has a sub centre in Dubai, and it is possible the applicant was entered by Cambridge as taking the test in Jordan, when the test was taken in Dubai.
The applicant told the Tribunal that she did not notice anything unusual or suspicious about the testing centre in Dubai or the way the English test was administered by staff at the Cambridge centre. She also said that her photograph was taken at the centre, and she was unable to give any reason for her photograph not appeared on her Cambridge test results.
The applicant confirmed that she had undertaken two other English tests , a PTE Academic test undertaken on 5 April 2018 and a TOEFL iBT test undertaken on 12 January 2019. She explained that as her score from the PTE test indicated that she only had competent English she undertook the Cambridge test prior to receiving the invitation to apply for the visa on 11 October 2018. The applicant acknowledged that the TOEFL iBT test was undertaken after she received the invitation for the visa but explained that she decided to undertake the test to demonstrate that she did have proficient English.
The applicant told the Tribunal that after being informed by the Department (on 5 December 2018) that her Cambridge test results had been cancelled, she attempted to contact the Cambridge organization and its Dubai test centre about the matter, but Cambridge had not responded to her enquiries. She also said that the Department had not provided her with any reason for not accepted her test results. She and the second named applicant told the Tribunal that the applicant had undertaken the Cambridge test (Test reference number 188J03015030) on 11 August 2018 without assistance and had obtained the following scores:
Listening         200
Reading          206
Writing            193
Speaking        192
The above scores equate to proficient English.
The Tribunal notes that reg 1.03 provides that ‘proficient English’ has the meaning given by reg 1.15D. Under this definition, a person (for a visa application made after 1 July 2012) has proficient English if:
·the person undertook a language test, specified in a written instrument; and
·the person is an applicant for a visa; and
·the test was conducted in the 3 years immediately before the day on which the Minister invited the person under the Regulations, in writing, to apply for the visa; and
·the person achieved a score specified in the instrument.
Based on the evidence before it, the Tribunal is satisfied that the applicant undertook a PTE Academic English test on 5 April 2018 (Registration identification 33194578) with scores demonstrating competent English.
The Tribunal is further satisfied that:
· the applicant undertook a TOEFL iBT English test on 12 January 2019 (Reference Number 35174434) with scores demonstrating proficient English.
· the applicant undertook a Pearson PTE Academic test on 6 January 2023 (Registration Identification 437754246) with scores demonstrating proficient English[1].
[1] The applicant’s overall score is 70 with individual scores as follows:
However, the Tribunal finds that as these latter tests were undertaken after the date of the invitation to apply for the visa, they do not meet the definition in reg 1.15D.
The Tribunal has considered the applicant’s evidence regarding the circumstances in which she undertook the Cambridge English test on 11 August 2018. Although the test result states that the test was undertaken in Aman, Jordan, the Tribunal accepts the information in the Departmental case note dated 4 March 2022 which indicates that the Cambridge testing centre in Jordan has a sub centre in Dubai and it is possible that Cambridge entered the applicant as taking the test in Jordan when the test was taken in Dubai. This is supportive of the applicant’s evidence at the hearing that she undertook the test in Dubai.
The Tribunal also accepts that after she was advised by the Department on 5 December 2018 that her test results had been cancelled by Cambridge, the applicant attempted to contact Cambridge to discover the reason for it cancelling her test results.
However, given the applicant’s English test results (dated 11 August 2018) were cancelled by Cambridge on 28 November 2018 and notified to the Department of this on 5 December 2018, the Tribunal is not satisfied that the applicant has undertaken an English test which was conducted in the three years immediately before the date of the invitation to apply for the visa and has achieved a score specified in the relevant instrument[2]. The Tribunal is therefore not satisfied that the applicant’s English language qualifications meets the definition of proficient English set out in reg 1.15D.
[2] IMMI 15/005(5)(B)(v) which requires a score of at least 154 in each of the four test components of listening, reading, writing, and speaking.
The Tribunal notes that the applicant has made no claims and provided no evidence of holding superior English language qualifications.
Accordingly, the applicant is entitled to no 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 made no claims and provided no evidence that she was employed in a skilled occupation for at least 3 months in the 10 years immediately before the invitation to apply for the visa.
Therefore, subject to consideration of Part 6D.5, 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 was employed in her nominated skilled occupation or a closely related skilled occupation for at least 60 months in the 10 years immediately before the invitation to apply for the visa, the applicant is entitled to 15 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 15 points. As this is not more than 20 points, 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.
The applicant has made no claims and provided no evidence of having completed a professional year in Australia in the nominated occupation or a closely related skilled occupation for a period of at 12 months in the immediately preceding 48 months.

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 applicant has met he requirements for a Bachelor of Science degree (obtained from Andhra University, India) on 4 November 2009. Based on this qualification, the Tribunal is satisfied that she has met the requirements for a bachelor’s degree by a non-Australian educational institution that is of a recognised standard.
Therefore, the applicant is entitled to 15 points under this part.
Part 6D.7A – Specialist educational qualifications
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 has made no claims and provided no evidence that at the time of invitation for the visa she met the requirements for the award of a specialist educational qualification.
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 has made no claims and provided no evidence of meeting the Australian study requirement.
As the Australian study requirement had not been met at the time of invitation, 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 has made no claims and provided no evidence that she was the holder of a qualification in a particular language awarded or accredited by a body specified by the Minister as the specified standard at the time of invitation to apply for the visa.
Therefore, the applicant is entitled to no points under this part.
Part 6D.10 – Study in regional Australia or a low-population growth metropolitan area qualification
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 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.
The applicant has made no claims and provided no evidence that she has undertaken study in Australia in a designated regional area.
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 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.
The Tribunal notes that in the visa application the applicant states that she is married to the second named applicant who is not an Australian citizen or Australian permanent resident and who undertook a Pearson Academic PTE English language test on 4 May 2018. The applicant provided the Department with a test result for the second named applicant which indicates that he has vocational English.
Therefore, the applicant is entitled to no points under this part.
Part 6D.12 – State or Territory nomination qualifications
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 has not been invited to apply for such a visa and is therefore not entitled to any 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.
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  15 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  - points
6D.13 - Designated regional area nomination or sponsorship qualifications - points
Total points  60 points
The applicant’s assessed score under the points system is therefore 60 points.
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?
The Tribunal notes that the number of points awarded for certain qualifications were increased for assessments undertaken on or after 16 November 2019 by amendments to the Regulations by the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (Cth). The Tribunal does not consider that these changes affect its assessment of the applicant’s entitlement to points.
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 189.224. As this is a prescribed criterion for the grant of the visa, the decision under review will be affirmed.
Given its findings regarding the first named applicant, the Tribunal is not satisfied that the second named and third named applicants meet the secondary requirements for the grant of Skilled Independent (Permanent) (subclass 189) visas.
DECISION
The Tribunal affirms the decision not to grant the applicants Skilled Independent (Permanent) visas.
Amanda Mendes Da Costa
Member

   Listening:    66
   Reading:     68
   Speaking:   83
   Writing:     65

[2024] AATA 1117

7 May 2024

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