Pagtalunan (Migration)

[2023] AATA 3701

Pagtalunan (Migration) [2023] AATA 3701 (12 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gerald Jerome Ramos Pagtalunan
Mrs Gerica Dela Cruz Pagtalunan

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2113975

HOME AFFAIRS REFERENCE(S):          BCC2021/57398

MEMBER:Karen McNamara

DATE:12 October 2023

PLACE OF DECISION:  Sydney

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

·   The Tribunal does not have jurisdiction in the matter in relation to the second named applicant.

Statement made on 12 October 2023 at 11:03am

CATCHWORDS
MIGRATION –Skilled Nominated (Permanent) (Class SN) visa – Subclass 190 – Chef – applicants did not provide information in support of their review application – applicant’s assessed score was lower than the invitation score – applicant has not provided any evidence, regarding the results of an English language test – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 338, 347, 359, 360, 363
Migration Regulations 1994, rr 1.15, 2.26, Schedule 2, cl 190.214

CASES
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Yang v MIAC [2010] FMCA 890

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 22 September 2021, 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, Mr Gerald Jerome Ramos Pagtalunan (the applicant) was invited to apply for the visa on 13 April 2021, subsequently lodging an application with the Department on 21 April 2021. 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).

3. The primary decision record shows that on 22 September 2021, the delegate refused to grant the visas because the applicant did not satisfy the ‘points test’ criterion in cl 190.214. Having assessed the applicant’s score to be 65 points, the delegate noted that the assessed score of 65 points is less than the score of 70 as specified in the invitation letter. As such, the delegate found the applicant does not meet cl 190.214(1) of Schedule 2 to the Regulations, hence not satisfying the requirements of cl 190.214. Essentially, this was due to the delegate excluding periods of the applicant’s claimed employment in Australia.

4. The applicant claimed 15 points on the basis of having been employed in Australia in his nominated skilled occupation; or a closely related skilled occupation for a period totalling at least 60 months in the 10 years, immediately before the date of the invitation to apply for the visa. The delegate however concluded that based on the available evidence, that the applicant was employed in the nominated skilled occupation, or a closely related skilled occupation, for at least 36 months in the 10 years immediately before the invitation to apply for the visa and awarded 10 points under this qualification.

5. The delegate also found that the secondary applicant Mrs Gerica Dela Cruz Pagtalunan could not be granted a Subclass 190 - Skilled Nominated (Permanent) (Class SN) visa as she did not meet the secondary visa criterion (cl.190.311) requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 190 visa.

6. The applicants lodged an application for review with the Tribunal on 11 October 2021. The review application was accompanied by a copy of the Department primary decision record and copies of the applicants’ passport biodata pages.

7. On 7 August 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act (dispatched by email to the authorised recipient/representative). The letter invited the applicants to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review. 

8. The information related to information before the Tribunal showing that on 22 September 2021, the Department refused their application for a Skilled Independent (Permanent) (class SN) Skilled Nominated (subclass 190) visa, because the applicant did not meet the requirements of cl.190.214(1) of Schedule 2 to the Regulations. The delegate found the applicant’s assessed score was lower than the invitation score.

9. Additionally, the Tribunal noted that a review of Tribunal and Department records show that since the lodgement of the application for review on 11 October 2021, the applicant had not provided verifiable evidence to address the criteria of cl.190.214 as claimed in his application for a Skilled Nomination (Permanent) (class SN) Skilled Nominated (subclass 190) visa.

10. The Tribunal’s letter of 7 August 2023 noted that this information is relevant because cl.190.214(1) 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. The letter further stated;

    ‘  If the Tribunal relies on this information, it may find that your application does not satisfy the requirement of cl.190.214 and consequently the decision under review would be affirmed.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 21 August 2023. If the comments or response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 21 August 2023, you may ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 21 August 2023, and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether
    or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’

11. The invitation to comment/respond was sent to the authorised recipient /representative at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 21 August 2023, the Tribunal may make a decision on the review without taking further steps to obtain the applicants’ comments and the review applicants would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

12. On 21 August 2023, the representative via email requested an extension of time to respond to the Tribunal’s invitation to comment, noting as follows;

    ‘We would like to request for additional time to provide the requested documents. I had been sick and I didn't have enough time to prepare the submission for the applicant. We would like to request an additional 7 days to send the requested documents.’

13. On 22 August 2023, the Tribunal advised the representative via email, that an extension of time was granted to 28 August 2023.

14. As at the time of this decision, the Tribunal has received no further communication or response from the applicant or an authorised representative of the applicant, despite requesting an extension of time to respond, nor have the applicants indicated they wish to withdraw this matter.

15. Where an applicant is invited to provide comment/response in accordance with subsection 359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the comments/response (subsection 359C(1) of the Act), and pursuant to s.360(3) of the Act, 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; (2010) 183 FCR 413 at [26]; and Yang v MIAC [2010] FMCA 890 at [40].

16. Accordingly, as the applicants failed to provide comments/response to the Tribunal within the prescribed period, the applicants have lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.

17. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act, to allow the applicants additional time in which to comment/respond in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

18. The Tribunal has had regard to the fact that the application was refused by the Department on 22 September 2021, because the delegate concluded that the applicant had not demonstrated he met the requirements of cl.190.214. The delegate clearly articulated the reasons for refusal of the visa application. The Tribunal in its invitation to comment/respond noted the applicant had not provided verifiable evidence to address the criteria of cl.190.214. The Tribunal observes that the applicants have been aware for nearly two years of the reasons for the application refusal. Despite requesting an extension of time to respond, the applicants did not provide information in support of their review application, or reasons for their lack of response. 

19. The Tribunal is satisfied that the invitation to provide comment/response and subsequent granting of an extension of time, was sent to the authorised recipient (the representative) at the correct email address as provided to the Tribunal and was not returned to sender as undeliverable mail. To date, the applicants have not provided comment/response. There is no evidence before the Tribunal to indicate that a response is forthcoming.

20. The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out and bolded in the Tribunal’s letter of 7 August 2023.

21. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to respond to the Tribunal and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicants will provide comment/response in writing to the Tribunal’s invitation to comment/response to adverse information.

22. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain comment from the applicants, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicants more time in which to demonstrate the applicant meets the requirements of cl. 190.214 of Schedule 2 to the Regulations. The Tribunal is not disposed to delay making a decision indefinitely and, in the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain a response from the applicants.

23. As noted previously in this decision, the applicants have not provided to the Tribunal probative evidence supporting their claims for a Subclass 190 visa. The Tribunal, however, has before it the Department file containing all information before the delegate at the time of their decision.

24. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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’.

27. 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).

28. 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 Chef (ANZSCO 351311).

29. Having regard to the provisions in s 350 of the Act, the Tribunal has considered the applicant’s score as assessed by applying the law in force at the time of the delegate’s decision and as at the time of the Tribunal’s decision. The Tribunal has summarised in the Table below at paragraph [75] its comparative assessment of the applicant’s score as set out in the application to the Department dated 21 April 2021, the law in force at the time of the delegate’s decision and as at the time of the Tribunal’s decision, to enable it to determine which is more favourable for the applicant as required by s 350 of the Act.

    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

30. 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.

31. At the time of invitation, the applicant was aged 29 years. This is confirmed by the copy of the applicant’s passport biodata page as provided to the Tribunal. Therefore, the applicant is entitled to 30 points under this part.

32. There have been no changes to the law in regard to this qualification since the time of the delegate’s decision. As at the time of this decision, the applicant continues to be entitled to 30 points.

    Part 6D.2 – English language qualifications

33. 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. An applicant who has ‘superior English’ as defined in reg 1.15EA of the Regulations is awarded 20 points and an applicant who has ‘proficient English’ as defined in reg 1.15D of the Regulations is awarded 10 points.

34. The Tribunal notes, the applicant claims in his application to the Department that he had at least functional English language ability and had undertaken an IELTS test on 20 June 2020   attaining 6.0 for Listening, 6.0 for Reading, 6.5 for Writing and 6.0 for Speaking.

35. Whilst the applicant has made no claims to support that he had superior or proficient English, the delegate noted in the decision record that following assessment of the information provided by the applicant in his application, the delegate was not satisfied that the applicant had proficient English as defined in regulation 1.15D and therefore no points were given under this part.

36. The Tribunal notes that subsequent to the applicant’s IELTS test result dated 20 June 2020, the applicant has not provided the Tribunal or the Department with any evidence, regarding the results of an English language test at the time the applicant was invited to apply for the Subclass 190 visa, demonstrating the applicant has either superior or proficient English language ability. The Tribunal therefore cannot be satisfied that the applicant had superior or proficient English language ability at the time he was invited to apply, and therefore he is entitled to no points under this Part, both at the time of the delegate’s decision and as at the time of this decision.

    Part 6D.3 – Overseas employment experience qualifications

37. 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.

38. The applicant has made no claims nor provided any evidence to support that he was employed in a skilled occupation for at least 36 months in the 10 years immediately before his invitation to apply for a Subclass 190 visa. Therefore, the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.4 – Australian employment qualifications

39. 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.

40. The applicant claimed 15 points on the basis of having been employed in Australia in his nominated skilled occupation; or a closely related skilled occupation for a period totalling at least 60 months in the 10 years, immediately before the date of the invitation to apply for the visa.

41. The applicant stated in his application form that he had been employed as a Chef by Hibiscus Tavern from 8 January 2016 for a period of 60 months in the past 10 years. In support of this claim the applicant provided to the Department an employment reference dated 17 April 2021.  On 25 and 30 June 2021, in response to the Department’s request to provide additional information, the applicant provided to the Department, the following;

    ·ATO Notice of Assessment 2016 to 2020

    ·Income Tax Returns 2016 to 2020

    ·Superannuation Statements 2016 to 2020

    ·Payslips 1 January 2016 to 20 June 2021

    ·Contract of employment dated 20 April 2020

1. The delegate in undertaking their assessment of the information before them, found that the applicant was not consistently employed by his said employer for at least 20 hours per week until 6 August 2018 and therefore the claimed period of employment in Australia did not meet the definition of employed as defined in reg 2.26AC(6).

2. Additionally, Department records show that the applicant held a Higher Education Sector (TU573) visa from 6 April 2015 to 30 August 2019 in which he was subject to condition 8105 Work Limitation, which stipulates relevant to this matter, the holder must not engage in work in Australia for more than 40 hours a fortnight during any fortnight when the holder’s course of study or training is in session.

3. The delegate found that the payslips provided by Hibiscus Tavern show that the applicant was consistently employed for more than 40 hours a fortnight between 6 August 2018 to 30 August 2019 and therefore found that this period of employment was in breach of the applicant’s visa condition 8105. Accordingly, the delegate found that this period could not be counted under the Australian employment qualification as per reg 2.27C.

4. The delegate concluded that based on the available evidence that the applicant was employed in the nominated skilled occupation, or a closely related skilled occupation, for at least 36 months in the 10 years immediately before the invitation to apply for the visa and awarded 10 points under this qualification.

5. The Tribunal has considered the information before it and finds that the evidence as provided by the applicant to the Department, supports the delegate’s findings as to the applicant’s employment with Hibiscus Tavern during the period 6 August 2018 to 30 August 2019. In the absence of evidence to support otherwise, the Tribunal finds this period of employment is excluded from consideration.

6. Therefore, subject to consideration of Part 6D.5, the applicant is entitled to 10 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

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

7. 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.

8. The combined number of points awarded to the applicant under Parts 6D.3 and 6D.4 is 10 points. As this is not more than 20 points, the applicant is entitled to no points under Part 6D.5, both at the time of the delegate’s assessment and as at the time of this decision.

   Part 6D.6 – Australian professional year qualifications

9. 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.

10. The applicant has not made any claims, nor provided any evidence of completing a professional year at the time he was invited to apply for a Subclass 190 visa. Therefore, the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.7 – Educational qualifications

11. 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.

12. Essentially, an applicant who has been awarded a doctorate is awarded 20 points, an applicant who has met the requirements for the award of at least a bachelor degree is awarded 15 points and applicants who have met requirements for the award of a diploma, trade qualification or other qualification recognised by the relevant assessing authority are awarded 10 points.

13. In support of his claim of Educational Qualifications, the applicant provided the Department evidence of completing a Certificate III Commercial Cookery (1 January 2018 to 28 November 2018), Certificate IV Commercial Cookery (1 July 2018 to 17 December 2018) and Diploma Hospitality Management (1 January 2017 to 4 March 2019) from Charles Darwin University.

14. The evidence before the Tribunal supports that the applicant has met the requirements for the award of at least a diploma by an Australia educational institution.

15. Therefore, the applicant is entitled to 10 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.7A – Specialist educational qualifications

16. 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.

17. The applicant has made no claims and provided no evidence of meeting the specialist educational qualification requirement specified in Part 6D.7A at the time of the invitation to apply. Therefore, the applicant is entitled to no points under this Part both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.8 – Australian study qualifications

18. 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.

19. Evidence before the Tribunal supports that the applicant completed a Certificate III in Commercial Cookery, Certificate IV in Commercial Cookery and Diploma of Hospitality Management. Having considered the courses and their requirements, the Tribunal is satisfied that the applicant completed a diploma and trade qualification for award by an Australian educational institution as a result of courses that met the requirements of regulation 1.15F.

20. Accordingly, as the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.9 – Credentialled community language qualifications

21. 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.

22. The applicant has made no claims and provided no evidence that he was the holder of a qualification in a particular language 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, he is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

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

23. 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.

24. The applicant claims he be awarded 5 points for having studied in a designated regional area. In support of his claim the applicant provided the Department copies of award certificates, academic transcripts and completion letters, issued by Charles Darwin University, Palmerston Campus. In support of his residential address, whilst undertaking the studies, the applicant has provided bank statements.

25. The Tribunal is satisfied on the evidence before it, that the applicant met the Australian study requirement as defined in reg 1.15F, while living and studying in a designated regional area and that none of the study undertaken was distance education.

26. Accordingly, as the study in a designated regional area qualification had been met at the time of invitation, the applicant is entitled to 5 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.11 – Partner qualifications

27. 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.

28. The applicant has claimed in his application that he has a migrating family member who is his spouse, however the applicant has made no claims and provided no evidence to support his 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.  

29. Therefore, the Tribunal cannot be satisfied that the applicant meets the requirements of Part 6D. Accordingly, the applicant is entitled to no points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

    Part 6D.12 – State or Territory nomination qualifications

30. 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.

31. Information before the Tribunal shows the applicant was invited to apply for a Subclass 190 (Skilled - Nominated) visa on 13 April 2021. The invitation specified that the applicant was nominated by the Northern Territory. There is no evidence to support that the Northern Territory has withdrawn the nomination.

32. Accordingly, the applicant is entitled to 5 points under this Part, both at the time of the delegate’s assessment and as at the time of this decision.

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

33. 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

34. Based on the above assessment, having regard to the legislation in effect at the time of the delegate’s and Tribunal’s assessments, and the information available to the Tribunal, the number of points to be awarded to the applicant under Schedule 6D are demonstrated in the following table:

Part	Qualification	Claimed EOI Points	Department awarded Points	Tribunal awarded points
6D.1	Age	30	30	30
6D.2	English language	0	0	0
6D.3	Overseas employment experience	0	0	0
6D.4	Australian employment experience	15	10	10
6D.5	Aggregated employment	0	0	0
6D.6	Australian professional year	0	0	0
6D.7	Educational	10	10	10
6D.7A	Specialist education qualification	0	0	0
6D.8	Australian study	5	5	5
6D.9	Credited community language	0	0	0
6D.10	Study in a designated regional area	5	5	5
6D.11	Partner qualifications	0	0	0
6D.12	State or Territory nomination	5	5	5
6D.13	Designated area sponsorship	0	0	0
Total Points claimed	70
TOTAL SCORE			65	65

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

2. In their application to the Department, the applicants claimed to have scored 70 points. However, because the delegate excluded periods of the applicant’s claimed Australia employment (as discussed previously in this decision), the delegate awarded 10 points as opposed to the applicant’s claimed 15 points. Therefore, the total score awarded to Mr Pagtalunan is 65 points.

3. Despite the primary decision record clearly setting out the reasons why the application had scored only 65 points, the only supporting evidence submitted to the Tribunal by the applicants were copies of their passport biodata pages. The applicants did not respond to the Tribunal’s s 359(A) letter, nor did they provide information to address the basis of the delegate’s refusal of their Subclass 190 visa application.

4. As there have been no changes to the law impacting the points awarded to applicants for Subclass 190 visas since the time of the delegate’s decision, the Tribunal concurs with the delegate’s assessment of the score to be 65 points.

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

5. It is a requirement in cl 190.214 (1) of Schedule 2 to the Regulations 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. The written invitation given to the applicant stated a score of 70 points. However, for the reasons set out above, the Tribunal finds that the applicant has achieved a score of 65 points, both at the time of the delegate’s decision and as at the time of this decision. Accordingly, the Tribunal finds that the applicant has not achieved the score stated in the invitation to apply for the visa and therefore finds that the applicant does not meet cl 190.214(1) of Schedule 2 to the Regulations.

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

6. Clause 190.214(2) of Schedule 2 to the Regulations provides 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 qualifying score for that Subdivision. The qualifying score at the time of the delegate’s decision was 65 points: LIN 19/210. There has been no change in the qualifying score since the time of the delegate’s decision.

7. Having reviewed available documentation, the Tribunal is satisfied that the applicant’s score of 65 points is not less than the current qualifying score of 65 points. Accordingly, the Tribunal finds that the applicant has achieved the qualifying score, applying the law in force at the time of the Tribunal’s assessment and, therefore, finds that the applicant meets cl.190.214(2) of Schedule 2 to the Regulations.

8. However, for the reasons outlined above, the applicant does not satisfy the requirements of cl 190.214(1) of Schedule 2 to the Regulations. As this is a prescribed criterion for the grant of the visa, the Tribunal finds that the applicant does not satisfy the requirements of             cl 190.214. Accordingly, the decision under review must be affirmed.

   Jurisdiction in relation to the second named applicant

9. 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) of the Act, 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 s.347(3) of the Act.  The term migration zone is defined in s.5(1) of the Act and generally means the Australian States and Territories.

10. Department records indicate the second named applicant (Mrs Gerica Dela Cruz Pagtalunan), was off shore at the time of the primary decision on 22 September 2021 and at the time the application for review was lodged on 11 October 2021. In the circumstances, the Tribunal finds that Mrs Gerica Dela Cruz Pagtalunan was not in the migration zone at the relevant time. 

11. As such the application for review made by Mrs Gerica Dela Cruz Pagtalunan does not meet the requirements of s.347 of the Act and accordingly, the Tribunal does not have jurisdiction in relation to the second named applicant.

    DECISION

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

    ·The Tribunal does not have jurisdiction in this matter in relation to the second named applicant.

    Karen McNamara
    Member