Patel (Migration)

Patel (Migration) [2023] AATA 1825 (29 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Digantkumar Bhanubhai Patel
CASE NUMBER:  2005728
HOME AFFAIRS REFERENCE(S):          BCC2020/331375
MEMBER:Amanda Mendes Da Costa
DATE:29 March 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.

Statement made on 29 March 2023 at 12.11pm

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 (Skilled – Independent) – points-based visa – occupation of Mechanical Engineer – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 93, 94, 96, 359, 360, 363
Migration Amendment (New Skilled Regional Visas) Regulations 2019
Migration Regulations 1994, Schedule 2, cl 189.224; Schedule 6D; rr 1.15, 2.26
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 4 March 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.
The applicant was invited to apply for the visa on 10 January 2020 and applied for the visa on 7 February 2020. 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.
The Tribunal notes that on 10 March 2023 it wrote to the applicant pursuant to s 359(2) of the Act, inviting him to provide information as to whether he met the requirements of cl 189.224 of Schedule 2 to the Regulations.
he comment on or respond to information which it considered would, subject to the applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.
The Tribunal informed the applicant that any comments or response should be provided (in writing) by 24 March 2023 and that the consequences of not responding by that date were that the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal notes that the applicant has not provided the requested information by 24 March 2023 or at all.
The Tribunal has considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support the review application.
In doing so, the Tribunal has considered the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Court have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.
[1] [2002] FCA 617.
[2] [2012] FMCA 28.
[3] [2013] HCA 18 (8 May 2013).
[4] [2014] FCAFC 1 (4 February 2014).
[5] [2014] FCA 915 (28 August 2014).
The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in cl 189.224 of Schedule 2 to the Regulations is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.
The Tribunal has had regard to the fact that the application was refused by the Department on 4 March 2020 because the applicant did not meet the requirements of cl 189.224. The applicant provided a copy of the primary decision with the review application. Therefore, the Tribunal is satisfied that the applicant has been aware for over three years of the reasons for the nomination refusal.
In these circusmtnces, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if, or when the applicant will provide information in writing as to whether he meets the requirements of cl 189.224. The Tribunal is not disposed to delaying making a decision indefinitely.
Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that the nominating business meets the requirements of cl 189.224.
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 19/051. In the present case, the applicant nominated the occupation of Mechanical Engineer ANZSCO 233512.
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.
The Tribunal notes that the applicant provided the Department and the Tribunal with his passport and based on the information contained therein, the Tribunal is satisfied that at the applicant’s age at the time of invitation to apply for the visa was 29 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 Tribunal notes that the applicant provided the following information regarding his English language ability:
Name of test:              PTE Academic
Date of test:                3 October 2019
Test reference number:         31791084
Country where test was undertaken: Australia
Language ability:        Competent
The delegate verified the applicant’s English test results using the information provided and after verification found that his test results were:
Listening         64
Reading          65
Speaking        75
Writing            60
The current relevant instrument prescribes that the following scores are required for ‘Proficient English’:
·An IELTS test score of at least 7 for each of the four test components of speaking, reading, writing and listening; or
·A score of at least “B” in each of the four components of an OET; or
·A Test of English as a Foreign Language internet-Based Test (TOEFL IBT) with at least the following scores for each of the four test components: 24 for listening, 24 for reading, 27 for writing and 23 for speaking.
·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; or
·A Cambridge English; Advanced (CAE) score, from a test conducted on or after 1 January 2015, of at least 185 for each of the four test components of speaking, reading, writing and listening.
The current legislative instrument prescribes that the following scores are required for ‘Superior English’:
·     An IELTS test score of at least 8 for each of the four test components of speaking, reading, writing and listening; or
·     A score of at least “A” in each of the four components of an OET; or
·     A Test of English as a Foreign Language internet-Based Test (TOEFL IBT) with at least the following scores for each of the four test components: 28 for listening, 29 for reading, 30 for writing and 26 for speaking.
·     A Pearson Test of English Academic (PTE Academic) score of at least 79 for each of the four test components of speaking, reading, writing and listening; or
·     A Cambridge English; Advanced (CAE) score, from a test conducted on or after 1 January 2015, of at least 200 for each of the four test components of speaking, reading, writing and listening.
The Tribunal finds that the applicant’s English language test results correspond to competent English ability. As the applicant has demonstrated competent English at the time of invitation to apply for the visa, no points are awarded 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 he was employed in a skilled occupation for at least 36 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.
The Tribunal notes that the applicant has made no claims and provided no evidence that he was employed in a skilled occupation in Australia for at least 12 months in the 10 years immediately before the invitation for the visa.
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
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 no points and 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 completing a professional year and 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.
On his visa application form the applicant provided the following information regarding his education history:
Course name:            Bachelor of Mechanical Engineering
Institution name:        Gujarat Technological University
Country of institution: India
Date from:                  10 August 2009
Date to:  17 May 2013
Course name:            Master of Management for Engineers
Institution name:        Central Queensland University
Country of institution: Australia
Campus:  Melbourne
Postcode of campus: 3000
Date from:                  7 March 2016
Date to:  20 October 2017
The Tribunal notes that the applicant provided documentation to the Department which demonstrates that he holds the above educational qualifications and held them at the time of the visa invitation.
Based on the evidence before it, the Tribunal is satisfied that the at the time of the visa application, the applicant met the requirements of Part 6D72-(a) because he had been awarded at least a bachelor degree by an Australian educational institution.
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 o claims and provided no documentation which demonstrates he meets the specialist education qualification requirement specified under Part 6D.7A at the time of invitation to apply for the visa.
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.
Based on the evidence before it, the Tribunal is satisfied that the applicant holds the following Australian qualification:
Course name:            Master of Management for Engineers
Institution name:        Central Queensland University
Country of institution: Australia
Campus:  Melbourne
Postcode of campus: 3000
Date from:                  7 March 2016
Date to:  20 October 2017
As the Australian study requirement had been met at the time of invitation, the applicant is entitled to 5 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 he was the holder of a qualification awarded or accredited by a body specified by the Minister at the specified standard at the time of the visa invitation.
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 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 he meets the requirements for a designated regional area qualification.
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 applicant has not made any claims or provided any evidence which demonstrates he has a spouse or a de facto partner. Therefore, the applicant is entitled to no points under Part 6D111.
On his visa application form the applicant stated that his relationship status is “never married”. The Tribunal is therefore satisfied that he does not have a spouse or de factor partner. Therefore, the Tribunal is satisfied the applicant is entitled to 10 points under Part 6D112(a).
The Tribunal is not satisfied that the applicant meets Part 6D113 because he has not demonstrated that he has a spouse or de facto partner. Therefore, the applicant is entitled to no points under Part 6D113.
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  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  5 points
6D.9 - Credentialled community language  0 points
6D.10 - Study in designated regional area qualification        0 points
6D.11 - Partner qualifications  10 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 made to the regulations by the Migration Amendment (New Skilled Regional Visas) Regulations 2019 (Cth) (Amending Regulations). However, as the applicant has not provided any information regarding the award of additional points in relation to the matters in Part 6D.7A; Part 6D.11; and Part 6D.13, the Tribunal does not consider the applicant qualifies for the award of any additional points under the Amending Regulations.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled Independent (Permanent) visa.
Amanda Mendes Da Costa
Member

[2023] AATA 1825

29 March 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Statutory Construction