Maulit (Migration)

[2023] AATA 1710

Maulit (Migration) [2023] AATA 1710 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jhunnef Rey Guillermo Maulit

CASE NUMBER:  2011573

HOME AFFAIRS REFERENCE(S):          BCC2019/4475445

MEMBER:Nicola Findson

DATE:30 May 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 30 May 2023 at 10:43am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – applicant has not provided the information within the prescribed period – Tribunal is not satisfied that the applicant achieved the qualifying score – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 1.15, Schedule 2, cl 189.224

CASES
Hasran v MIAC [2010] FCAFC 40

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 24 June 2020 to refuse to grant the applicant a Independent (Permanent) (Class SI) Subclass 189 (Skilled - Independent) visa 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 applicant submitted his Skill Select Expression of Interest ID E0014068868 on 9 July 2019, and he was invited to apply for the visa on 11 July 2019. The applicant lodged his online application for the visa on 6 September 2019. 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 applicant did not provide any documents in support of his application, and the delegate refused to grant the visa because the applicant did not satisfy the ‘points test’ criterion in cl 189.224.

3. On 13 July 2020, the applicant applied to the Tribunal for review of the Department’s decision, and with the application provided a copy of the delegate’s decision record and the biodata page of his passport issued by the Republic of the Philippines.

4. On 12 May 2023, the Tribunal wrote to the applicant pursuant to s 359(2) of the Act, inviting him to provide information to address all of the criteria claimed in his Skill Select Expression of Interest submitted to the Department on 9 July 2019.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 26 May 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal is satisfied that its invitation to provide information was correctly sent to the applicant, using the email address provided on review. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicant has not made any contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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’.

10. 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).

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). The relevant instrument for this purpose is Legislative Instrument LIN 19/051. In the present case, the applicant nominated the occupation of electrician.

    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 27. Therefore, the applicant is entitled to 30 points under this part.

    Part 6D.2 – English language qualifications

14. 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.

15. A person has ‘Proficient English’, as defined in reg 1.15D, if the person achieved a specified score in a specified English language test conducted in a specified period.  The relevant legislative instrument specifies a Pearson Test of English Academic (PTE Academic) score of at least 65 for each of the four test components of speaking, reading, writing and listening.  

16. In his visa application, the applicant states he has undertaken a PTE Academic test on 9 August 2019 and attained ‘Proficient English’.  However, he has not provided either the Department or the Tribunal with a copy of the PTE Academic test report form, or any other evidence, to support his claims.

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

    Part 6D.3 – Overseas employment experience qualifications

18. 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.

19. The applicant claims to have worked outside Australia in his nominated skilled occupation for a period totalling at least 96 months in the 10 years immediately before the invitation to apply for the visa.  However, he has provided no evidence to support this claim.

20. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

    Part 6D.4 – Australian employment qualifications

21. 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.

22. The applicant made no claim to be eligible for any points for Australian employment experience.

23. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to no points under this part.

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

24. 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.

25. The combined number of points that would be awarded under Parts 6D.3 and 6D.4 is no 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

26. 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.

27. There is no claim made or evidence provided that the applicant has completed one of the specified professional year qualifications.

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

    Part 6D.7 – Educational qualifications

29. 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.

30. In his visa application, the applicant states he completed a Diploma in Building Wiring Installation at the Carmelo C. De Los Cientos National Trade School in the Philippines between 18 June 2009 and 22 June 2010.  He also sets out in the visa application that Trades Recognition Australia issued him with a suitable skills assessment in respect of his nomination occupation on 9 May 2019. However, the applicant has provided no evidence to support he holds a Diploma qualification, or that it is of a recognised standard.

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

    Part 6D.7A – Specialist educational qualifications

32. 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.

33. There is no claim made or evidence provided of meeting the specialist education qualification requirements specified under PartD.7A.  Therefore, the applicant is entitled to no points under this part.

    Part 6D.8 – Australian study qualifications

34. 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.

35. There is no claim made or evidence provided that the applicant meets the Australian study requirement.

36. 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

37. 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.

38. There is no claim made or evidence provided that at the time of invitation the applicant had a language qualification awarded or accredited by a specified body to the specified standard at the time of invitation to apply for the visa.

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

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

40. 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.

41. There is no claim made, or evidence provided, for study undertaken in a designated regional area.

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

    Part 6D.11 – Partner qualifications

43. 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.

44. The applicant has not provided any evidence that the Partner qualifications are met in his case.

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

    Part 6D.12 – State or Territory nomination qualifications

46. 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

47. 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

48. 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  0 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  30 points

49. The applicant’s assessed score under the points system is therefore 30 points.

50. 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?

51. The number of points awarded for certain qualifications were increased for assessments undertaken on or after 16 November 2019, by amendments made to the regulations by the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (Cth).

52. During the review process, the Tribunal invited the applicant to provide information to address all of the criteria claimed in his Skill Select Expression of Interest submitted to the Department on 9 July 2019.  No response has been received to the invitation to provide information.  The Tribunal does not have any new or further supporting information that was not before the Department when the delegate made their decision.

53. Therefore, applying law in force at the time of its decision, the Tribunal finds that the applicant is not entitled to any additional points.

54. The applicant has therefore not achieved the qualifying score to pass the points test, at the time of the Tribunal’s assessment.

55. For the above reasons, the applicant is entitled to a maximum of 30 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.

    DECISION

56. The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

    Nicola Findson
    Member